Posts Tagged ‘ALEC’

A Tactic I Hope Republicans Will Rethink:
Using the Open Records Law to Intimidate Critics

Here’s the headline: the Wisconsin Republican Party has issued an Open Records Law request for access to my emails since January 1 in response to a blog entry I posted on March 15 concerning the role of the American Legislative Exchange Council (ALEC) in influencing recent legislation in this state and across the country. I find this a disturbing development, and hope readers will bear with me as I explain the strange circumstances in which I find myself as a result.

 

Bill Cronon Posts His First-Ever Blog Entry

Last week was quite a roller coaster for me.  I spent the weekend of March 12-13 drafting an op-ed for the New York Times (published on March 22, and available at this link: http://www.nytimes.com/2011/03/22/opinion/22cronon.html) about the several ways in which I believe that Scott Walker and the current leadership of the Republican Party in Wisconsin have departed not just from the longstanding culture of civility and good government in this state, but in fact from important traditions of their own party. In the course of writing that op-ed, I did some research trying to figure out where the current wave of conservative legislation in Wisconsin and elsewhere might be coming from.

 

As a result, last Tuesday night, March 15, I launched my first-ever entry for a blog I had long been planning on the theme of “Scholar as Citizen,” about how thoughtful scholarship can contribute to better understandings of issues and debates in the public realm. In my first blog entry, I published a study guide exploring the question “Who’s Really Behind Recent Republican Legislation in Wisconsin and Elsewhere?” I by no means had all the answers to this question, but I thought I had found enough useful leads that it was worth sharing them to help others investigate the American Legislative Exchange Council further. So I posted the link for the blog on Facebook and Twitter, sat back, and hoped that viral communication would bring the blog to people who might find it useful.

 

My little ALEC study guide succeeded beyond my wildest dreams.  Within two days, the blog had received over half a million hits, had been read by tens of thousands of people, had been linked by newspapers all over the United States, and had been visited by people from more than two dozen foreign countries. Many readers expressed considerable interest in the activities of the American Legislative Exchange Council (ALEC), and said they were grateful for the guidance I had tried to provide for people wishing to learn more about it. (A smaller number of readers were much more hostile, and you can read their comments on the blog.)

 

All this was welcome, and I’m greatly heartened by the thought that an organization that has exercised such extraordinary but almost invisible influence over American political life for the past forty years may finally start to receive more of the scrutiny that its far-reaching activities deserve.

 

The Wisconsin Republican Party Expresses Its Displeasure

What I did not anticipate—though I guess I should have seen it coming, given everything else that has happened in Wisconsin over the past couple months—was the communication that the University of Wisconsin-Madison received on Thursday afternoon, March 17—less than two days after I posted my blog—formally requesting under the state’s Open Records Law copies of all emails sent from or received by my University of Wisconsin—Madison email address pertaining to matters raised in my blog. (The acronym in many other states and in the Federal government for the laws under which such a request is usually made is “FOIA,” named for the federal Freedom of Information Act.  You can read the text of the Wisconsin Open Records Law here: http://legis.wisconsin.gov/statutes/stat0019.pdf,
and learn more about its application here:
http://www.doj.state.wi.us/dls/OMPR/2010OMCG-PRO/2010_OML_Compliance_Guide.pdf

 

Remarkably, the request was sent to the university’s legal office by Stephan Thompson of the Republican Party of Wisconsin, with no effort to obscure the political motivations behind it.  Here’s what Mr. Thompson sent to the University’s attorneys:

 

******************************************

From: Stephan Thompson [mailto:SThompson@wisgop.org]
Sent: Thursday, March 17, 2011 2:37 PM
To: Dowling, John
Subject: Open Records Request

Dear Mr. Dowling,

Under Wisconsin open records law, we are requesting copies of the following items:

Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

Sincerely,

Stephan Thompson

Republican Party of Wisconsin

608-257-4765

******************************************

(I apologize again for the length of this blog posting; if you don’t have time to read it all, feel free to skip to the final three sections, which try to summarize what’s at stake in this request.)

 

Why Did the Republican Party Make This Request?

Under Wisconsin’s Open Records Law, anyone has the right to request access to the state’s public records, and can do so without either identifying themselves or stating the reasons for their interest in those records. But since Mr. Thompson made no effort to hide his identity or his affiliation with the Republican Party, since his request came so soon after my ALEC study guide was published, and since he provided search terms to identify the particular emails that most interested him, it’s not too hard to connect the dots to figure out what this request is all about.

 

Let’s subject Mr. Thompson’s email to some textual analysis. That is, after all, what we historians do: we read documents and try to interpret their meanings.

 

The timing of Mr. Thompson’s request surely means that it is a response to my blog posting about the American Legislative Exchange Council, since I have never before been the subject of an Open Records request, and nothing in my prior professional life has ever attracted this kind of attention from the Republican Party. It doesn’t take a great leap of logic to infer that Mr. Thompson and his colleagues aren’t particularly eager to have a state university professor asking awkward questions about the dealings of state Republicans with the American Legislative Exchange Council. This open records request apparently seemed to Mr. Thompson to be a good way to discourage me from sticking my nose in places he doesn’t think it belongs.

 

I confess that I’m surprised to find myself in this strange position, since (as I said in my earlier blog post) my professional interest as a historian has always been to research and understand the full spectrum of American political opinion. I often spend as much time defending Republican and conservative points of view to my liberal friends as vice versa.  (For what it’s worth, I have never belonged to either party.) But Mr. Thompson obviously read my blog post as an all-out attack on the interests of his party, and his open records request seems designed to give him what he hopes will be ammunition he can use to embarrass, undermine, and ultimately silence me.

 

One obvious conclusion I draw is that my study guide about the role of ALEC in Wisconsin politics must come pretty close to hitting a bull’s-eye.  Why else would the Republican Party of Wisconsin feel the need to single out a lone university professor for such uncomfortable attention?

 

What Is the Republican Party Hoping to Find in My Emails?

But let’s read the request more carefully.  How does Mr. Thompson think he can hurt me with an open records request seeking access to my emails since January 1, 2011?

 

One answer is that the University of Wisconsin-Madison has explicit policies about appropriate use of its email accounts. In general, students and faculty members are only supposed to use their state email addresses for communications clearly related to the educational mission of the university.

 

Much more important, there is an explicit prohibition against individuals using state email addresses for partisan political purposes.  Here’s the crucial sentence: “University employees may not use these resources to support the nomination of any person for political office or to influence a vote in any election or referendum.” (You can read these policies for yourself at http://www.cio.wisc.edu/policies/appropriateuse.aspx.)

 

I’d be willing to bet quite a lot of money that Mr. Thompson and the State Republican Party are hoping that I’ve been violating this policy so they can use my own emails to prove that I’m a liberal activist who is using my state email account to engage in illegal lobbying and efforts to influence elections.  By releasing emails to demonstrate this, they’re hoping they can embarrass me enough to silence me as a critic.

 

What Story Does the Republican Party Hope to Tell Using My Emails?

The narrative they would like to spin about me seems pretty clear from the search terms they’ve included in their open records request.  For instance, they name eleven politicians in that request.  Three of these–Governor Scott Walker; Speaker of the Assembly Jeff Fitzgerald; and his brother, Senate Majority Leader Scott Fitzgerald—are the Republican leaders who have engineered and led the policies that have produced so much upset in the State of Wisconsin over the past two months. They would thus likely be lightning rods for any inappropriately partisan emails one might be tempted to send as a state employee using a state email account.

 

But the other eight Republican legislators named in Mr. Thompson’s open records request are probably even more important: Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Sheila Harsdorf, Luther Olsen, Glenn Grothman, and Mary Lazich.  Why seek Bill Cronon’s emails relating to these individuals?  Answer: because they’re the eight Republicans currently targeted by petition campaigns seeking to hold early recall elections in response to recent legislation.

 

It’s these eight names, in combination with a search for emails containing the words “Republican” and “recall,” that Mr. Thompson is hoping he can use to prove that Bill Cronon has been engaging in illegal use of state emails to lobby for recall elections designed to defeat Republicans who voted for the Governor’s Budget Repair Bill. (One might also infer from his request that a blog post about the influence of ALEC on Wisconsin politics might somehow have an impact on those recall elections—a thought that wasn’t much on my mind when I put together my ALEC study guide, but that seems more intriguing now that we see how forcefully the Republican Party has responded.)

 

In this context, the remaining search terms are almost certainly intended to supply a key additional element in a narrative designed to undermine a professorial critic not only for misusing state email resources, but for being a puppet of the public employee unions which Mr. Thompson and his Republican allies would like the wider public to believe are chiefly responsible for criticisms of their policies.  The request for emails containing the search phrases “AFSCME” and “WEAC” are of course seeking emails to or from or relating to the two largest public employee unions in Wisconsin. Marty Beil and Mary Bell—also named in Mr. Thompson’s request—are the leaders of those two organizations. Emails containing the words “rally,” “union,” and “collective bargaining” would just be the icing on the cake to show that I’m a wild-eyed union ideologue completely out of touch with the true interests of the citizens and taxpayers of Wisconsin.

 

I suspect this is the story Mr. Thompson would like to be able to tell about me if his open records request yields the pay dirt he imagines he will find in my emails.

 

Should Political Parties Use the Open Records Law to Try to Silence Their Critics?

If I’m right that this is the kind of story Mr. Thompson hopes to be able to tell about me, what should the rest of us think about that story and his desire to tell it?

 

My most important observation is that I find it simply outrageous that the Wisconsin Republican Party would seek to employ the state’s Open Records Law for the nakedly political purpose of trying to embarrass, harass, or silence a university professor (and a citizen) who has asked legitimate questions and identified potentially legitimate criticisms concerning the influence of a national organization on state legislative activity. I’m offended by this not just because it’s yet another abuse of law and procedure that has seemingly become standard operating procedure for the state’s Republican Party under Governor Walker, but because it’s such an obvious assault on academic freedom at a great research university that helped invent the concept of academic freedom way back in 1894.  I’ll return to that 1894 story at the end of this blog entry.

 

FOIA: A Precious Asset of Democracy in the United States

Having expressed my outrage, though, I can’t in good faith just rail against Wisconsin’s admirably strong Open Records Law or the legal traditions surrounding our nation’s Freedom of Information Act (FOIA).  First signed into law by Lyndon Johnson in 1966, the Freedom of Information Act is a bastion of American democracy, making it possible for citizens to scrutinize the actions of their government and elected officials in ways that are possible in few other nations on earth.  FOIA is a precious political heritage of the United States, and I would not want to argue that public universities should enjoy a blanket exemption from its requirements.  Over and over again, FOIA and its state-level statutory analogs have enabled journalists, historians, and other scholars to research and analyze governmental activities that would otherwise be completely invisible to ordinary citizens.

 

When should FOIA and Wisconsin’s Open Records Law apply to universities?

 

Answer: When there is good reason to believe that wrongdoing has occurred.  When formal academic governance proceedings are making important decisions that the public has a right to know about.  When teachers engage in abusive relationships with their students.  When the documents being requested have to do with official university business. And so on.

 

When should we be more cautious about applying such laws to universities?

 

Answer: When FOIA is used to harass individual faculty members for asking awkward questions, researching unpopular topics, making uncomfortable arguments, or pursuing lines of inquiry that powerful people would prefer to suppress.  If that happens, FOIA and the Open Records Law can too easily become tools for silencing legitimate intellectual inquiries and voices of dissent—whether these emanate from the left or the right or (as in my case) the center. It is precisely this fear of intellectual inquiry being stifled by the abuse of state power that has long led scholars and scientists to cherish the phrase “academic freedom” as passionately as most Americans cherish such phrases as “free speech” and “the First Amendment.”

 

It is chilling indeed to think that the Republican Party of my state has asked to have access to the emails of a lone professor in the hope of finding messages they can use to attack and discredit that professor. It makes me wonder if they have given even the slightest thought to what would happen to the reputation of this state and of its universities if they were to succeed in such an effort.

 

It also makes me wonder how a party so passionate in its commitment to liberty and to protecting citizens from abuses of state power can justify resorting to this particular exercise of state power with the goal of trying to silence a critic of its own conduct.

 

What Does Bill Cronon Have to Hide?

By now, you’re probably beginning to wonder “What does Bill Cronon have to hide?”  That is, of course, one of the predictable narrative elements of the drama that Mr. Thompson and his party have tried to set in motion by making their request.  If the victim of the request begins to squirm and tries to prevent release of the requested emails, we can all be forgiven for beginning to think they must contain something pretty interesting for the victim to make such a fuss about them.

 

That’s how these kinds of stories work: even if they turn up nothing at all, they can damage the victim simply by implying that he might have something to hide.

 

So let me quickly say that my outrage at Mr. Thompson’s request does not derive from fear—though I’d be lying if I said I’m not nervous about the prospect of having the Republican Party and its allies combing through my private and professional life in an effort to hurt or discredit me.  I am, after all, a chaired, tenured professor at one of the greatest research universities in the world—an institution that has a proud tradition of defending academic freedom from precisely the kinds of attacks that Mr. Thompson is trying to launch.

 

I’m here in Wisconsin because I love this state with all my heart, and I hope disinterested readers will recognize that the questions I’ve asked are a reflection not of partisanship but of a citizen’s love for his state and its traditions—and a historian’s fascination for the story of how American politics works.  I don’t think it would be easy for Republican state officials to fire me—and even if they did succeed in hounding me to resign, I have no doubt that I could easily get a job at another university where I would actually earn a lot more money.  (I’m very far from being one of those mythical Wisconsin workers who is earning lots more money by virtue of being a public employee; I could almost certainly increase my salary a great deal by moving to a private university in another state.)

 

Is It Naïve to Believe That the Best Defense is … the Truth?

But there’s a much more important reason I feel far less fear than anger at Mr. Thompson’s open records request, which is simply this: I haven’t actually done anything wrong.

 

Ever since moving to Wisconsin from Yale in the early 1990s, I have been careful to maintain a separation between my public @wisc.edu email address and my personal email address.  I use the latter for all communications with family members and friends, and I use it too for any activities of mine that might be construed as political rather than scholarly (though the boundaries between these two categories is harder to draw for a scholar of the modern United States than non-scholars might imagine).  I have always owned my own computers, because I haven’t wanted to worry about whether my personal and professional emails are mingling on a state-owned machine in ways that would violate Wisconsin’s rules about using state property for personal or political communication.

 

The irony goes deeper still.  As any careful reader of my blog about ALEC will probably have noticed—though I get the feeling that Mr. Thompson and his colleagues may not be such careful readers—I did not raise the questions I did about ALEC from a partisan point of view.  Quite the contrary.  I tried to write with real respect about the history of the conservative movement in the United States, because I genuinely do respect that movement and believe it has made many important contributions to our political life. Although I do have serious criticisms of the role ALEC has played in our politics, my concerns have to do with threats to core American notions of due process and transparent governance. I worked hard to avoid partisan criticism, enough so that I’m pretty sure many readers to my left thought that I wasn’t nearly critical enough in what I wrote.

 

But all of this seems to have been lost on Mr. Thompson and the Wisconsin Republican Party.  They’re eager to see my emails in the hope that they might punish and silence me for what I wrote.

 

I should add that even if I had written from either the left or the right end of the political spectrum, I still think we should oppose this kind of politically motivated intrusion on the intellectual life of universities. If he had directed the same kind of inquiry against a colleague who was more liberal or conservative in their political views than I am, it would be just as objectionable.

 

Here, alas, there are cautionary historical precedents that we would all do well to remember.

 

In the op-ed I published in the New York Times on March 22, I drew a carefully delimited analogy between what is happening in Wisconsin today and the partisan turmoil that Wisconsin Senator Joseph McCarthy worked so hard to create in the early 1950s. McCarthy, of course, thought nothing of trying to have university faculty members fired from their jobs because he believed they held objectionable political views—and many were indeed fired as a result. The kind of intervention happening in this case isn’t so overt: Mr. Thompson hasn’t yet issued a demand for me to be disciplined or fired. But it’s hard not to draw an analogy between this effort to seek of evidence of wrongdoing on my part (because I asked awkward but legitimate questions about an organization with close ties to the Republican Party) and the legal and professional consequences that might follow the discovery of such evidence.

 

Joe McCarthy was a master of using allegation and innuendo to tar the reputations of those he “investigated,” and I would argue that we should all be very firm in defending academic freedom across the entire political spectrum against that kind of political abuse. The fact that the Open Records Law is now available as a potential tool for undermining one’s enemies doesn’t make the resulting “investigations” any less sinister in their potentially chilling effects for the intellectual life of universities.

 

If There’s Nothing to Hide, Why Not Just Release These Emails?

If, as I believe, emails flagged by Mr. Thompson’s open records request contain nothing that represents an abuse of a state email account, and no politically inappropriate activities by myself as a state employee, why not just release them?

 

My answer is that records administrators and courts in Wisconsin are asked to perform a “balancing test” when deciding whether the very strong presumption in favor of full disclosure overrides other public policy considerations. Although legal precedents in Wisconsin insist that there can be no non-statutory blanket exclusions from the public records law, I’d like to argue that there are good public policy reasons why not even the Wisconsin Republican Party should seek to intrude for political reasons on the professional and personal communications of a University of Wisconsin faculty member.

 

Let me offer just a few concrete examples.

 

A number of the emails caught in the net of Mr. Thompson’s open records request are messages between myself and my students. All thus fall within the purview of the Family Educational Right to Privacy Act (FERPA, sometimes known as the “Buckley Amendment,” named for its author Senator James Buckley—the brother of conservative intellectual William F. Buckley). The Buckley Amendment makes it illegal for colleges or universities to release student records without the permission of those students, and is thus in direct conflict with the Wisconsin Open Records Law and Mr. Thompson’s request on behalf of the Wisconsin Republican Party. I don’t know whether Mr. Thompson intended his request to generate a wholesale release of student records, but I myself think that doing so would represent a dangerous intrusion on student privacy. I’m pretty sure the law supports me in this view. If you’d like to review the terms of FERPA, see
http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
and
http://www.access.gpo.gov/nara/cfr/waisidx_04/34cfr99_04.html

 

Many more of the emails that would be released under this open records request are communications with colleagues of mine at other institutions about various matters that have nothing whatsoever to do with Wisconsin politics or the official business of the University of Wisconsin-Madison—but they do involve academic work that typically assumes a significant degree of privacy and confidentiality. (Many happen to include one or more of the requested search terms because these are widely used words in the English language—for instance, a writer recalling the role of the Union Army in the post-Civil War electoral success of the Republican Party would get caught by this search three times over.) The emails include, for instance, conversations with authors and editors about book manuscripts, and also the deliberations of two professional boards on which I sit, the Organization of American Historians (OAH) and the American Historical Association (AHA), the latter of which I now serve as President-Elect. Online email exchanges among members of these boards are expected to be confidential, so that all of us are admonished not to share each other’s emails lest doing so discourage colleagues from being candid in sharing their views.

 

Even though it’s not part of official university business, I have always used my University of Wisconsin-Madison email address in professional communications of this kind, because I’m proud to declare my association with this university and this state. Neither I nor my academic correspondents imagined that my doing so might put the confidentiality of our communications at risk, and I would very much regret having to announce to the world that colleagues can no longer communicate with me using my UW-Madison email address for fear that politically motivated use of the Public Records Law might intrude on what are meant to be confidential communications. If these discussions involved something unethical or illegal, then of course a FOIA request might be appropriate—though so too would a court-ordered subpoena, which has much greater legal power to intrude on private communications.

 

But a political fishing expedition with the purpose of causing embarrassment to correspondents seems sure to have a severe chilling effect that could only undermine the university’s longstanding reputation for defending academic freedom.

 

Sifting and Winnowing

Why should anyone not at the university care about all this?

 

Most of my professional colleagues will instantly recognize this request for access to a professor’s emails as a potential threat to academic freedom: an effort by a powerful political group—the Republican Party of my own state, no less—to seek weapons they can use against me. Most of us would feel at least a little nervous about giving someone carte blanche to rummage through our online communications, and in the academic world this raises special concerns because such inquiries have often in the past been used to suppress unpopular ideas.

 

In fact, one of the most celebrated moments in the history of American academic freedom happened right here at the University of Wisconsin in 1894. In July of that year, a member of the UW Board of Regents named Oliver E. Wells wrote a letter to The Nation magazine entitled “The College Anarchist.” In it, he accused UW Professor Richard Ely, one of the nation’s leading economists, of being an anarchist and socialist for his work exploring the positive roles that labor unions could play in the American economy. Wells sought to have Ely fired from his UW faculty position, and this prompted the appointment of a special committee of the Board of Regents to investigate Wells’ allegations. The result was a report that ended with one of the most ringing endorsements of academic freedom ever made in the United States, now emblazoned on a bronze tablet by the front door of UW-Madison’s Bascom Hall:

 

Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great State University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.

 

If you’d like to learn more about this famous story, there are good accounts at the following links:

http://www.wisconsinstories.org/2002season/school/closer_look.cfm
http://www.uwp.edu/news/perspective/winter9899/sifting.pdf
http://www.library.wisc.edu/etext/wireader/Contents/Sifting.html
http://en.wikipedia.org/wiki/Richard_T._Ely

 

http://www.secfac.wisc.edu/SiftAndWinnow.htm

 

Why Do I Hope the Republican Party Might Withdraw This Request?

Let me conclude by repeating that I have nothing to hide in the emails I have sent and received using my UW-Madison email account, but I think we will all lose if the Republican Party of Wisconsin insists on pursuing the reckless course of action that has prompted it to issue this Open Records Law request. If the University of Wisconsin-Madison is forced to turn over my emails in response to this request, here are some of the things that are put at risk:

 

1) Questions will inevitably be asked about whether the University and the State of Wisconsin have struck a proper balance between the unquestioned value of open records for the democratic oversight of formal governmental processes and the rights of privacy for students and faculty members at a research university to pursue lines of inquiry even if they offend powerful political interests.

 

2) Anyone using email to communicate with University of Wisconsin professors will likely have second thoughts about whether they can afford to be candid and honest in such emails.

 

3) When a faculty member like myself becomes an officer of a major scholarly organization, questions may be raised about whether it is wise or safe to use UW-Madison email addresses for communications relating to that organization.

 

4) If such requests were to become a common feature of life at UW-Madison, it would likely become much harder for the university to recruit the best professors in the country to join its faculty—and it’s easy to imagine the most marketable professors leaving our campus if subjected to this kind of harassment.

 

Faculty members like me can probably avoid many of these problems by never using their UW email addresses for any of their professional communications, even with their own students…but that in itself would seem to be a most unfortunate outcome of the Republican Party’s reckless action.  I have always felt honored to use my @wisc.edu address when communicating with colleagues as a way to declare the delight and privilege I feel being a faculty member at the University of Wisconsin-Madison.  Ceasing that practice, or adding a note to all my emails warning colleagues that they must always be cautious when they write me lest political inquiries intrude upon our private communications: I would feel a deep sense of regret about such an outcome and the chilling effect it would have on virtually all university communications.

 

Abusing Essential Tools of Democracy

I want to close by repeating that I support the Open Records Law and the freedom of information traditions of the United States. They are precious guardians of our democratic liberties.

 

But this particular request demonstrates that they also have the potential to be abused in ways that discourage dissent and undermine democracy.

 

Here, it’s not too much of a stretch to draw an analogy to the abuse of the subpoena power that was one of Senator Joseph McCarthy’s most dangerous tactics during the 1950s. The subpoena power too is crucial to our democracy: the criminal justice system could not work without the power to compel witnesses to testify, and Congress needs a similar power to compel testimony if its deliberations are to be properly informed. As with open records, our democracy would be far less effective if the subpoena power did not exist.  The same can be said of the Fifth Amendment, which exists to protect individuals from having to give self-incriminating testimony in response to the subpoena power—but McCarthy was skilled at undermining that bulwark of American liberty as well.

 

When such tools are turned toward purely partisan ends, and when they are used with the express purpose of intimidating or punishing those with whom powerful people disagree, then precious institutions of democracy are deployed to subvert the very liberties we all cherish. It is for this reason that I have spent so much time trying to articulate why I don’t believe the Wisconsin Republican Party should be invoking the Open Records Law to single me out for scrutiny—and implicitly for punishment—in this way.

 

The consequences of this highly politicized Open Records Law request, in other words, in which one of Wisconsin’s two great political parties seeks to punish a faculty member at its state university by seeking access to that professor’s emails, seem potentially so damaging to the University, the State, and even to the Republican Party itself that my idealistic self hopes even Mr. Thompson and his Republican colleagues will see the dangers in the tactic they have deployed.

 

This is very different from asking an elected official or a government agency to turn over emails relating to their formal duties and their formal exercise of state power.  It asks a university professor to turn over personal emails relating to the day-to-day life of an intellectual community in its “sifting and winnowing” in pursuit of truth. This would not happen at private universities like Harvard or Stanford, and I would like to think it shouldn’t happen at the University of Wisconsin-Madison, which has played a more central role in defining and defending academic freedom than most other institutions in the United States.

 

If the University cannot avoid turning over my emails, then so be it. But I truly do hope that wiser heads in the Republican Party will prevail, and that this Open Records Law request will be seen for what it is: an ill-advised political intervention into traditions of academic freedom that are among the proudest legacies of this state.

 

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A Study Guide for Those Wishing to Know More

After watching the sudden and impressively well-organized wave of legislation being introduced into state legislatures that all seem to be pursuing parallel goals only tangentially related to current fiscal challenges–ending collective bargaining rights for public employees, requiring photo IDs at the ballot box, rolling back environmental protections, privileging property rights over civil rights, and so on–I’ve found myself wondering where all of this legislation is coming from.

The Walker-Koch Prank Phone Call Reveals A Lot, But Not Nearly Enough

The prank phone call that Governor Scott Walker unhesitatingly accepted from a blogger purporting to be billionaire conservative donor David Koch has received lots of airplay, and it certainly demonstrates that the governor is accustomed to having conversations with deep-pocketed folks who support his cause. If you’ve not actually seen the transcript, it’s worth a careful reading, and is accessible here:
http://host.madison.com/wsj/article_531276b6-3f6a-11e0-b288-001cc4c002e0.html

But even though I’m more than prepared to believe that David and Charles Koch have provided large amounts of money to help fund the conservative flood tide that is sweeping through state legislatures right now, I just don’t find it plausible that two brothers from Wichita, Kansas, no matter how wealthy, can be responsible for this explosion of radical conservative legislation. It also goes without saying that Scott Walker cannot be single-handedly responsible for what we’re seeing either; I wouldn’t believe that even for Wisconsin, let alone for so many other states. The governor clearly welcomes the national media attention he’s receiving as a spear-carrier for the movement. But he’s surely not the architect of that movement.

So…who is?

Conservative History Post-1964: A Brilliant Turnaround Story

I can’t fully answer that question in a short note, but I can sketch its outline and offer advice for those who want to fill in more of the details.

I’ll start by saying–a professorial impulse I just can’t resist–that it’s well worth taking some time to familiarize yourself with the history of the conservative movement in the United States since the 1950s if you haven’t already studied the subject. Whatever you think of its politics, I don’t think there can be any question that the rise of modern conservatism is one of the great turnaround stories in twentieth-century American history. It’s quite a fascinating series of events, in which a deeply marginalized political movement–tainted by widespread public reaction against Senator Joe McCarthy, the John Birch Society, and the massively defeated Barry Goldwater campaign of 1964–managed quite brilliantly to remake itself (and American politics) in the decades that followed.

I provide a brief reading list at the end of this note because many people from other parts of the political spectrum often seem not to take the intellectual roots of American conservatism very seriously. I believe this is a serious mistake. One key insight you should take from this history is that after the Goldwater defeat in 1964, visionary conservative leaders began to build a series of organizations and networks designed to promote their values and construct systematic strategies for sympathetic politicians. Some of these organizations are reasonably well known–for instance, the Heritage Foundation, founded in 1973 by Paul Weyrich, a Racine native and UW-Madison alumnus who also started the Moral Majority and whose importance to the movement is almost impossible to overestimate–but many of these groups remain largely invisible.

That’s why events like the ones we’ve just experienced in Wisconsin can seem to come out of nowhere. Few outside the conservative movement have been paying much attention, and that is ill-advised.  (I would, by the way, say the same thing about people on the right who don’t make a serious effort to understand the left in this country.)

It’s also important to understand that events at the state level don’t always originate in the state where they occur. Far from it.

Basic Tools for Researching Conservative Groups

If you run across a conservative organization you’ve never heard of before and would like to know more about it, two websites can sometimes be helpful for quick overviews:
Right Wing Watch: http://www.rightwingwatch.org/
SourceWatch: http://www.sourcewatch.org
Both of these lean left in their politics, so they obviously can’t be counted on to provide sympathetic descriptions of conservative groups. (If I knew of comparable sites whose politics were more conservative, I’d gladly provide them here; please contact me if you know of any and I’ll add them to this note.) But for obvious reasons, many of these groups prefer not to be monitored very closely. Many maintain a low profile, so one sometimes learns more about them from their left-leaning critics than from the groups themselves.

I don’t want this to become an endless professorial lecture on the general outlines of American conservatism today, so let me turn to the question at hand: who’s really behind recent Republican legislation in Wisconsin and elsewhere?  I’m professionally interested in this question as a historian, and since I can’t bring myself to believe that the Koch brothers single-handedly masterminded all this, I’ve been trying to discover the deeper networks from which this legislation emerged.

Here’s my preliminary answer.

Telling Your State Legislators What to Do:
The American Legislative Exchange Council (ALEC)

The most important group, I’m pretty sure, is the American Legislative Exchange Council (ALEC), which was founded in 1973 by Henry Hyde, Lou Barnett, and (surprise, surprise) Paul Weyrich. Its goal for the past forty years has been to draft “model bills” that conservative legislators can introduce in the 50 states. Its website claims that in each legislative cycle, its members introduce 1000 pieces of legislation based on its work, and claims that roughly 18% of these bills are enacted into law. (Among them was the controversial 2010 anti-immigrant law in Arizona.)

If you’re as impressed by these numbers as I am, I’m hoping you’ll agree with me that it may be time to start paying more attention to ALEC and the bills its seeks to promote.
You can start by studying ALEC’s own website. Begin with its home page at
http://www.alec.org
First visit the “About” menu to get a sense of the organization’s history and its current members and funders. But the meat of the site is the “model legislation” page, which is the gateway to the hundreds of bills that ALEC has drafted for the benefit of its conservative members.
http://www.alec.org/AM/Template.cfm?Section=Model_Legislation1

You’ll of course be eager to look these over…but you won’t be able to, because you’re not a member.

Becoming a Member of ALEC: Not So Easy to Do

How do you become a member?  Simple. Two ways.  You can be an elected Republican legislator who, after being individually vetted, pays a token fee of roughly $100 per biennium to join.  Here’s the membership brochure to use if you meet this criterion:
http://www.alec.org/AM/pdf/2011_legislative_brochure.pdf
What if you’re not a Republican elected official?  Not to worry. You can apply to join ALEC as a “private sector” member by paying at least a few thousand dollars depending on which legislative domains most interest you. Here’s the membership brochure if you meet this criterion:
http://www.alec.org/am/pdf/Corporate_Brochure.pdf
Then again, even if most of us had this kind of money to contribute to ALEC, I have a feeling that membership might not necessarily be open to just anyone who is willing to pay the fee. But maybe I’m being cynical here.

Which Wisconsin Republican politicians are members of ALEC? Good question. How would we know? ALEC doesn’t provide this information on its website unless you’re able to log in as a member. Maybe we need to ask our representatives. One might think that Republican legislators gathered at a national ALEC meeting could be sufficiently numerous to trigger the “walking quorum rule” that makes it illegal for public officials in Wisconsin to meet unannounced without public notice of their meeting. But they’re able to avoid this rule (which applies to every other public body in Wisconsin) because they’re protected by a loophole in what is otherwise one of the strictest open meetings laws in the nation. The Wisconsin legislature carved out a unique exemption from that law for its own party caucuses, Democrats and Republicans alike. So Wisconsin Republicans are able to hold secret meetings with ALEC to plan their legislative strategies whenever they want, safe in the knowledge that no one will be able to watch while they do so.
(See http://www.doj.state.wi.us/dls/OMPR/2010OMCG-PRO/2010_OML_Compliance_Guide.pdf for a full discussion of Wisconsin’s otherwise very strict Open Meetings Law.)

If it has seemed to you while watching recent debates in the legislature that many Republican members of the Senate and Assembly have already made up their minds about the bills on which they’re voting, and don’t have much interest in listening to arguments being made by anyone else in the room, it’s probably because they did in fact make up their minds about these bills long before they entered the Capitol chambers. You can decide for yourself whether that’s a good expression of the “sifting and winnowing” for which this state long ago became famous.

Partners in Wisconsin and Other States: SPN, MacIver Institute, WPRI

An important partner of ALEC’s, by the way, is the State Policy Network (SPN), which helps coordinate the activities of a wide variety of conservative think tanks operating at the state level throughout the country. See its home page at
http://www.spn.org/
Many of the publications of these think tanks are accessible and downloadable from links on the SPN website, which are well worth taking the time to peruse and read. A good starting place is:
http://www.spn.org/members/

Two important SPN members in Wisconsin are the MacIver Institute for Public Policy:
http://maciverinstitute.com/
and the Wisconsin Policy Research Institute (WPRI):
http://www.wpri.org
If you want to be a well-informed Wisconsin citizen and don’t know about their work, you’ll probably want to start visiting these sites more regularly. You’ll gain a much better understanding of the underlying ideas that inform recent Republican legislation by doing so.

Understanding What These Groups Do

As I said earlier, it’s not easy to find exact details about the model legislation that ALEC has sought to introduce all over the country in Republican-dominated statehouses. But you’ll get suggestive glimpses of it from the occasional reporting that has been done about ALEC over the past decade. Almost all of this emanates from the left wing of the political spectrum, so needs to be read with that bias always in mind.

Interestingly, one of the most critical accounts of ALEC’s activities was issued by Defenders of Wildlife and the Natural Resources Defense Council in a 2002 report entitled Corporate America’s Trojan Horse in the States. Although NRDC and Defenders may seem like odd organizations to issue such a report, some of ALEC’s most concentrated efforts have been directed at rolling back environmental protections, so their authorship of the report isn’t so surprising. The report and its associated press release are here:
http://alecwatch.org/11223344.pdf
http://www.nrdc.org/media/pressreleases/020228.asp
There’s also an old, very stale website associated with this effort at
http://alecwatch.org/

A more recent analysis of ALEC’s activities was put together by the Progressive States Network in February 2006 under the title Governing the Nation from the Statehouses, available here:
http://www.progressivestates.org/content/57/governing-the-nation-from-the-statehouses
There’s an In These Times story summarizing the report at
http://www.inthesetimes.com/article/2509/
More recent stories can be found at
http://www.huffingtonpost.com/miles-mogulescu/alec-states-unions_b_832428.htmlview=print
http://www.inthesetimes.com/article/6084/corporate_con_game (about the Arizona immigration law)
and there’s very interesting coverage of ALEC’s efforts to disenfranchise student voters at
http://campusprogress.org/articles/conservative_corporate_advocacy_group_alec_behind_voter_disenfranchise/
and
http://www.progressivestates.org/node/26400

For just one example of how below-the-radar the activities of ALEC typically are, look for where the name of the organization appears in this recent story from the New York Times about current efforts in state legislatures to roll back the bargaining rights of public employee unions:
http://www.nytimes.com/2011/01/04/business/04labor.html
Hint: ALEC is way below the fold!

A Cautionary Note

What you’ll quickly learn even from reading these few documents is that ALEC is an organization that has been doing very important political work in the United States for the past forty years with remarkably little public or journalistic scrutiny. I’m posting this long note in the conviction that it’s time to start paying more attention. History is being made here, and future historians need people today to assemble the documents they’ll eventually need to write this story. Much more important, citizens today may wish to access these same documents to be well informed about important political decisions being made in our own time during the frequent meetings that ALEC organizes between Republican legislators and representatives of many of the wealthiest corporations in the United States.

I want to add a word of caution here at the end. In posting this study guide, I do not want to suggest that I think it is illegitimate in a democracy for citizens who share political convictions to gather for the purpose of sharing ideas or creating strategies to pursue their shared goals. The right to assemble, form alliances, share resources, and pursue common ends is crucial to any vision of democracy I know. (That’s one reason I’m appalled at Governor Walker’s ALEC-supported efforts to shut down public employee unions in Wisconsin, even though I have never belonged to one of those unions, probably never will, and have sometimes been quite critical of their tactics and strategies.)  I’m not suggesting that ALEC, its members, or its allies are illegitimate, corrupt, or illegal. If money were changing hands to buy votes, that would be a different thing, but I don’t believe that’s mainly what’s going on here. Americans who belong to ALEC do so because they genuinely believe in the causes it promotes, not because they’re buying or selling votes.

This is yet another example, in other words, of the impressive and highly skillful ways that conservatives have built very carefully thought-out institutions to advocate for their interests over the past half century. Although there may be analogous structures at the other end of the political spectrum, they’re frequently not nearly so well coordinated or so disciplined in the ways they pursue their goals. (The nearest analog to ALEC that I’m aware of on the left is the Progressive States Network, whose website can be perused at
http://www.progressivestates.org/
but PSN was only founded in 2005, does not mainly focus on writing model legislation, and is not as well organized or as disciplined as ALEC.) To be fair, conservatives would probably argue that the liberal networks they oppose were so well woven into the fabric of government agencies, labor unions, universities, churches, and non-profit organizations that these liberal networks organize themselves and operate quite differently than conservative networks do–and conservatives would be able to able to muster valid evidence to support such an argument, however we might finally evaluate the persuasiveness of that evidence.

Again, I want anyone reading this post to understand that I am emphatically not questioning the legitimacy of advocacy networks in a democracy. To the contrary: I believe they are essential to democracy. My concern is rather to promote open public discussion and the genuine clash of opinions among different parts of the political spectrum, which I believe is best served by full and open disclosure of the interests of those who advocate particular policies.

I believe this is especially important when policies are presented as having a genuine public interest even though their deeper purpose may be to promote selfish or partisan gains.

Reasserting Wisconsin’s Core Values: Decency, Fairness, Generosity, Compromise

ALEC’s efforts to disenfranchise voters likely to vote Democratic, for instance, and its efforts to destroy public-sector unions because they also tend to favor Democrats, strike me as objectionable and anti-democratic (as opposed to anti-Democratic) on their face. As a pragmatic centrist in my own politics, I very strongly favor seeking the public good from both sides of the partisan aisle, and it’s not at all clear to me that recent legislation in Wisconsin or elsewhere can be defended as doing this. Shining a bright light on ALEC’s activities (and on other groups as well, across the political spectrum) thus seems to me a valuable thing to do whether or not one favors its political goals.

This is especially true when politicians at the state and local level promote legislation drafted at the national level that may not actually best serve the interests of their home districts and states. ALEC strategists may think they’re serving the national conservative cause by promoting legislation like the bills recently passed in Wisconsin–but I see my state being ripped apart by the resulting controversies, and it’s hard to believe that Wisconsin is better off as a result. This is not the way citizens or politicians have historically behaved toward each other in this state, and I for one am not happy with the changes in our political culture that seem to be unfolding right now. I’m hoping that many of my fellow Wisconsinites, whether they lean left or right, agree with me that it’s time to take a long hard look at what has been happening and try to find our bearings again.

I have always cherished Wisconsin for its neighborliness, and this is not the way neighbors treat each other.

One conclusion seems clear: what we’ve witnessed in Wisconsin during the opening months of 2011 did not originate in this state, even though we’ve been at the center of the political storm in terms of how it’s being implemented. This is a well-planned and well-coordinated national campaign, and it would be helpful to know a lot more about it.

Let’s get to work, fellow citizens.

William Cronon

 

P.S.: Note to historians and journalists: we really need a good biography of Paul Weyrich.

 

An Introductory Bibliography on the Recent History of American Conservatism

John Micklethwait & Adrian Wooldridge, The Right Nation: Conservative Power in America, 2004 (lively, readable overview by sympathetic British journalists).

David Farber, The Rise and Fall of Modern American Conservatism: A Brief History, 2010.

George H. Nash, The Conservative Intellectual Movement in America Since 1945, 1976(one of the earliest academic studies of the movement, and still important to read).

Lee Edwards, The Conservative Revolution, 2002 (written from a conservative perspective by a longstanding fellow of the Heritage Foundation).

Bruce Frohnen, et al, American Conservatism: An Encyclopedia, 2006 (a comprehensive and indispensable reference work).

Jerry Z. Muller, Conservatism, 1997 (extensive anthology of classic texts of the movement).

There are many other important studies, but these are reasonable starting points.

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