The Center for Media and Democracy is submitting the testimony below to the U.S. Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Human Rights for the hearing today on "'Stand Your Ground' Laws: Civil Rights and Public Safety Implications of the Expanded Use of Deadly Force." The hearing, where the mother of Trayvon Martin has been asked to testify about the devastating effects of radical changes to gun laws that were backed by the American Legislative Exchange Council in partnership with the NRA, will be webcast live on Tuesday, October 29 at 10am eastern/9am central at this link. Also, here is a letter thanking the Senate Judiciary Committee for shedding light on "Stand Your Ground" laws and ALEC's role in pushing for such laws, from organizations that cumulatively represent more than 10 million Americans.
Mr. Chairman, and Members of the Committee, my name is Lisa Graves, and I am the Executive Director of the Center for Media and Democracy, the publisher of PRWatch.org, ALECexposed.org, SourceWatch.org, and BanksterUSA.org. The organization I lead is a national investigative watchdog group based in Madison, Wisconsin, that has more than 150,000 supporters.
I previously served as the Chief Counsel for Nominations for the Chairman and then Ranking Member of the Senate Judiciary Committee, Senator Patrick Leahy. I also served as Deputy Assistant Attorney General in the Office of Legal Policy/Policy Development at the U.S. Department of Justice and as the Deputy Chief of the Article III Judges Division of the Administrative Office of the U.S. Courts, in addition to other posts in the non-profit sector on national security issues.
I commend the Committee, and its Chairman, for holding this hearing to examine the deadly consequences of so-called “Stand Your Ground” (SYG) laws that have proliferated in the states since 2005, at the urging of the National Rifle Association (NRA) and the American Legislative Exchange Council (ALEC).
SYG laws were peddled by the NRA and ALEC alongside bills to expand the number of people carrying concealed firearms, creating a volatile combination that puts more and more American children and adults at risk of being shot and killed. This Committee has held countless hearings over the years on both federal and state crime policies that affect the rights of Americans, and it is fitting that the Senate examine SYG and the organizations that have urged that SYG become binding law.
I am especially concerned about the activities of ALEC to push the NRA’s agenda into law because ALEC has routinely filed tax returns with the IRS claiming it engages in no lobbying, zero. Yet, ALEC and its agents have routinely bragged about getting SYG introduced and passed – the very definition of lobbying – while claiming to the IRS and the public that it spends not a single dollar on lobbying. Today, I will describe the evidence that shows that ALEC is no ordinary non-profit and the ways in which it has misled the public about the true nature of its activities.
I will also detail the role of the NRA in ALEC and ALEC’s role in pushing for SYG laws. I will also discuss the effect of the three main parts of that law, and how that law affected the initial treatment of George Zimmerman’s killing of Trayvon Martin; how it affected the trial; and how it may affect a civil suit.
In an accompanying appendix to the statement I am submitting for the record, I also describe the role of corporations, such as Koch Industries, and numerous other grantees of the Koch family fortune in advancing the ALEC corporate agenda, along with other aspects of ALEC’s legacy, such as efforts to make it harder for American citizens to vote, as well as its current legislative agenda.
ALEC “Is a Corporate Lobby Masquerading as a Charity”
ALEC describes itself as the largest voluntary group of state legislators in the country, but it is really a corporate-financed lobby that facilitates getting special interest legislation into the hands of lawmakers from every state in the country. In the words of Bill Moyers, ALEC is “the most influential corporate-funded political force most of America has never heard of” as noted in the “United States of ALEC.”
At the Center for Media and Democracy (CMD), we launched ALECexposed.org in July 2013 after a whistleblower provided me with nearly 1,000 “model” bills secretly voted on by corporate lobbyists through ALEC. We analyzed ALEC’s operations in detail and broke the initial story with The Nation magazine.
Among other things, CMD examined more than a decade of federal tax filings by ALEC, and we discovered that while ALEC likes to tell the press it is an association of lawmakers, more 98% of its revenue is from corporations and sources other an legislative dues. Lawmakers pay nominal “dues” of $50 a year -- largely window-dressing -- while corporations pay thousands of dollars a year to be part of ALEC and gain special access to legislators at resorts, up to three times a year. ALEC claims it is just like the National Conference of State Legislators, but we found striking differences: NCSL does not hide corporate-funded trips for lawmakers; in NCSL, the parties alternate leadership, and corporations are not equals to lawmakers in NCSL and do not vote as equals as legislators.
ALEC is the epitome of a pay-to-play operation that gives special interests special access, but the way it conducts its operations is very unusual and troubling. That is why ALEC is subject to no fewer than three separate tax fraud complaints to the IRS, with supporting evidence provided by four groups: Common Cause, Clergy Voice, the Voters Legislative Transparency Project, and my organization, CMD.
ALEC Is Subject to Three Complaints Alleging Tax Fraud
ALEC is registered as a 501(c)(3) non-profit organization, which means that corporations can theoretically deduct the thousands of dollars they pay ALEC to get their legislative wish lists in the hands of lawmakers. ALEC has routinely told the IRS that it engages in zero lobbying, even though numerous communications have been obtained through open records requests and other sources that show ALEC asking for legislation to be introduced, urging that specific legislation be adopted, and taking credit when its legislation becomes law. ALEC is no “charity” – it is a lobby that has routinely boasted to its corporate members that each year nearly 1,000 ALEC bills are introduced in state legislatures and nearly 20% become law.
A review of ALEC task forces by CMD revealed that almost all of the for-profit corporations that participate in ALEC task forces are represented by their registered lobbyists or are described by their employers as their “government affairs” staffer within the corporation’s internal lobbying shop. CMD and Common Cause have also obtained documents showing that corporations have secretly and routinely sponsored bills at ALEC Task Force meetings and then voted on those bills with legislators at ALEC meetings. Under ALEC’s published bylaws, its state legislative leaders are tasked with a “duty” to get ALEC bills “introduced,” and they do. Some ALEC corporations then lobby for them without disclosing they pre-voted on them.
That is, as Common Cause pleaded to the IRS, the for-profit corporations that are part of ALEC may also be liable under federal tax laws for taking charitable deductions for activity that is at its root lobbying for legislation through ALEC. CMD agrees with the words of the late former Congressman Bob Edgar, “ALEC is a corporate lobby masquerading as a charity.” The potential liability for the tax fraud alleged could subject ALEC, and possibly those bankrolling it, to criminal and civil liability according to Marcus Owens, the former chief of the IRS’ non-profit division.
ALEC has repeatedly claimed to the IRS that it spends no money on travel for federal or state officials, but CMD has extensively documented that these claims are also contrary to the evidence. DBA Press and CMD obtained a three-year spreadsheet of corporate funding for trips by lawmakers along with the names of every corporation that funded the trips and all of the lawmakers who took them.
The amounts spent on lawmaker travel totaled about $500,000 per year for lawmakers’ hotel, airfare, and other expenses, yet each year ALEC claimed it spent nothing for travel. As CMD wrote in its joint report with DBA Press and Common Cause, ALEC’s “scholarships” warrant a thorough IRS investigation of its operations.
CMD also documented that lawmakers routinely solicit funds for these trips from corporations with business before the state and that corporations were told that they could take a charitable deduction for such gifts. ALEC has taken in millions of dollars cumulatively for this travel including one check from PhRMA for $356,000.
Some states have barred legislators from accepting such gifts, while other states have considered or are considering whether ALEC has violated state ethics laws. We know ALEC told the IRS that state lawmakers control the travel fund while ALEC also told state ethics boards the opposite: that state lawmakers do not control it, ALEC does.
VLTP’s Bob Sloan has filed an IRS whistleblower complaint against ALEC based primarily on its scholarship program. Clergy Voice also complained about ALEC’s non-disclosed lobbying and how donations bring lawmakers to meet with corporate lobbyists and ALEC meetings while giving the corporations a tax write-off.
Additionally, CMD and Common Cause recently submitted supplemental evidence to the IRS in support of the initial complaint filed by Common Cause’s Mr. Edgar after CMD launched ALECexposed in July 2013. The supplemental filing last month provided the IRS with numerous documents obtained by DBA Press, CMD, and Common Cause in a number of states that show that ALEC has spent a projected $2 million for lawmaker travel in recent years on the state “scholarship” travel alone – in addition to more sums for lawmaker travel via the ALEC task forces. CMD and Common Cause have also asked each state Attorney General to examine whether ALEC is operating in violation of state law.
ALEC’s Corporate Funders Were Known Well before this Hearing
Accordingly, it is astonishing ALEC and a small number of its legislators – many of whom get their trips to ALEC resort meetings paid for by corporations, whose identities are well known to them – are taking umbrage at this Committee for inquiring about ALEC’s legislative agenda and which corporations have bankrolled it. The lawmakers know who funds ALEC’s bill machine and their trips, but until we launched ALECexposed two years ago, the public was largely in the dark about these special interests and the one-stop shopping ALEC provides for corporations and trade groups to secretly advance the same cookie-cutter bills in nearly every state.
Despite the hoopla trumped up over Senator Durbin’s letter, quite frankly, every single for-profit and non-profit corporation this Committee asked about its support for ALEC and its long-standing gun agenda is a corporation that is publicly known to have funded ALEC or participated in its meetings about bills, based on the investigative research of CMD, along with others like Common Cause, DBA Press, VLTP, CAP, Greenpeace, bloggers at Daily Kos, and many, many ordinary citizen sleuths.
Indeed, for more than two years, many thousands of citizens and customers have been conducting a corporate responsibility campaign to ask corporations to stop supporting ALEC’s extreme agenda. CMD launched that initiative in July 2013 with a postcard campaign to Coca Cola asking what Coke was doing behind closed doors with ALEC and Koch Industries, and why Coke was supporting a group that was working to thwart efforts to address climate change (and pushing “denialist” legislation), working to make it harder for college students and other Americans to vote through restrictive Voter ID bills, and, among other things, trying to privatize social security which has long been part of the agenda of David and Charles Koch.
These and other CMD reports highlighting the damaging ALEC agenda being funded by corporations were aided by public outreach by Common Cause, People for the American Way, Progress Now, VLTP, and Greenpeace, to name a few, plus numerous bloggers and concerned citizens. Countless workers and their unions, like AFT, NEA, AFL-CIO, AFSCME, SEIU, and others, have also publicly spoken out about ALEC’s extreme agenda. The civil rights group Color of Change also began an effort in late 2011 to contact community engagement representatives of public corporations about their concerns about ALEC’s voter restriction agenda and also spearheaded a corporate accountability campaign on ALEC's gun agenda in 2013.
In the aftermath of public outrage over the way Florida’s SYG law was cited to prevent the arrest and prosecution of George Zimmerman’s pursuit and killing of unarmed African American teen Trayvon Martin, at least 49 for-profit corporations and six non-profit corporations publicly said they stopped funding ALEC. More than 70 lawmakers sought to break from ALEC, too, and, in addition, more than 100 ALEC members lost or left their seats last year.
CMD has documented which corporations that have left ALEC and those that have continued to fund its meetings, as well as state and national reports on ALEC’s operations, through CMD’s publications–PRWatch.org, ALECexposed.org, and SourceWatch.org. We have also launched a clearinghouse for information about the “State Policy Network” (SPN) groups that amplify ALEC’s legislative agenda, and which is funded by some of the same corporations and foundations. (We have also exposed the funding of Fix the Debt, NFIB, and other fronts.)
Here is a link to CMD's op-ed about the PR campaign waged by ALEC in response to the Senate letter about ALEC corporations.
Lobbying Can’t Escape Scrutiny by Calling It “Freedom of Association”
I find it especially absurd for the Wall Street Journal -- whose editorial board members have close ties to ALEC that they have failed to disclose in all but one of its numerous editorials and op-eds backing ALEC or the ALEC legislative agenda -- to claim that this Committee is engaged in any kind of McCarthyism, by asserting that corporations have been asked “are you now or have you ever been a member.” As far as I can tell, every corporation asked about SYG has been publicly documented to have funded or supported ALEC long before now. For more than two years, CMD has been documenting the for-profit and non-profit corporations that have been working behind closed doors with ALEC lawmakers. That list is fully accessible to the public, including Senators and the press, along with the sources.
The Wall Street Journal’s hyperbole, echoed by some of the SPN “think tanks,” like the Goldwater Institute, that work closely on ALEC’s agenda, is reckless and wrong. The Journal owes the Chairman an apology for its slurs. It also owes its readers an apology for failing to acknowledge its own conflict of interest and that of its editorial board member Steven Moore regarding ALEC in all except one editorial, which was penned after CMD called out the Journal for its failure to acknowledge Moore’s close ties to ALEC. To date, it has still refused to detail how much money, if any, its editorial board member receives from outside for-profit or non-profit groups that he works closely with and then promotes on the editorial page.
Moreover, it is extremely dangerous, in my view, to validate the notion that corporations have an unlimited “right” to keep their identities secret when they are involved in lobbying. Indeed, the Republican Texas Attorney General rejected just such a claim last month in response to an ALEC legislator’s efforts to shield ALEC from her compliance with state open records laws under the spurious claim that complying with state transparency laws about groups contacting legislators about changing the law would violate ALEC’s supposed freedom of association for itself and its corporate bankrollers.
Although ALEC denies that it lobbies, hundreds of documents have been provided to the IRS that show ALEC’s staff asking for specific bills to be introduced, voted on, and approved, satisfying the IRS definition of lobbying and related definitions in numerous states. ALEC and its representatives have repeated those denials to the press despite literally pounds of physical evidence to the contrary. Whether the IRS will take action on these claims -- in the face of political pressure by some to claim that its examination of a flurry of groups seeking non-profit status focused only on right-leaning groups, even though documents released after the scandal broke reveal the both progressives and “conservatives” were examined – remains to be seen. In my view, it would be a scandal if the IRS did not find ALEC to have engaged in a multi-year pattern of deception in its IRS filings regarding lobbying and trips to resorts for lawmakers, funded by corporations.
ALEC is using corporations with legislative interests before the state to fund its operations, but corporate lobbyists also use ALEC to obtain access to, and funnel gifts of travel to, lawmakers whom they want to change state laws. Recognizing such a putative “right” to hide lobbying activity would limit the actual rights of the people those legislators were elected to represent and limit the ability of citizens to protect against the corruption of our lawmakers. Such a claim of “associational” rights, if accepted, could be used to thwart not only the enforcement of state ethics laws but also federal lobbying and disclosure laws.
Such claims also fly in the face of long-standing clean government laws, even though such laws – as we have seen and documented in the aftermath of the Supreme Court’s Citizens United decision – remain inadequate to obtain all the disclosure needed to protect the integrity of the democratic process. (Unsurprisingly, ALEC opposed the addition of new disclosure rules in response to that case and its former long-standing member the Center for Competitive Politics in its press release about Senator Durbin’s letter uses that as a vehicle to complain about the Senate’s DISCLOSE Act as a purported abuse of transparency and disclosure rules.)
In a healthy democracy, the powerful cannot just create a secretive “club” made of legislators and lobbyists where legislation is discussed and pushed, and then claim it is a violation of “freedom of association” if a legislative body or a citizen asks who is funding such operations and what legislation has been advanced with such funds. The American people have a fundamental right to know which corporations or special interests are seeking to influence their elected lawmakers, and which corporation’s lobbyists are wining and dining their representatives in our republic. The People have a fundamental right to regulate or bar such corrupting activities.
ALEC Opposes Transparency and Threatens State Sunshine Laws
In many states citizens have a right to see the letters or emails of for-profit or non-profit corporations that contact lawmakers, in order to help citizens protect against corruption of their representatives. Yet ALEC and its allies have recently started claiming that ALEC has an unlimited right to associate and communicate secretly with legislators that trumps citizens’ rights under state open records laws.
In the aftermath of open records disclosures that have become the basis of complaints to the IRS alleging ALEC is defrauding taxpayers, ALEC has started claiming that its communications with lawmakers -- who are part of ALEC because they are lawmakers and who are often put on ALEC Task Forces that coincide with their state legislature’s substantive committee assignment – are no longer subject to, or responsive to, government transparency laws in some states.
ALEC has literally stamped communications about bills it wants lawmakers to introduce with a disclaimer that such documents and emails are not subject to open records laws. It has also demanded that lawmakers give it special treatment and notify it of every open records request and consult with it before providing any documents to the public. This constitutes a real obstruction of the law, in my view.
One of ALEC’s primary objections, its reason for being, is to get state laws changed. As noted above, under ALEC’s published bylaws, the state legislative leaders that aid ALEC have been tasked for years with a “duty” to get ALEC legislation introduced into law, as they have for SYG bills and in numerous other areas of the law. ALEC legislative leaders are also tasked with helping to raise funds for ALEC, and as CMD has documented some lawmakers have used their office and official letterhead to solicit money from corporations for ALEC, for their trips.
CMD is in the midst of a fight to preserve open government in Wisconsin, where an ALEC politician is trying to void the state’s tradition of transparency by claiming that legislators are now immune from enforcement of open records laws.
That claim by Wisconsin state Senator Leah Vukmir has been condemned by the Wisconsin Freedom of Information Council, which noted that “no lawmaker has ever before tried to defeat the state's open records law by employing this ruse.” Papers across the state are editorializing against this effort to thwart transparency.
Another state freedom of information foundation has also condemned a related ALEC attempt to claim a “freedom of association” right against lawmakers complying with traditional open records laws, noting that “ALEC's arguments reflect a dangerous trend of claiming a constitutional right to close the public off from governmental body deliberations,” including who is communicating to lawmakers.
The truth is that ALEC successfully moved its legislative agenda in the states in secret for decades with little public scrutiny or sustained attention, before CMD launched ALECexposed.org. Now that the public and press can connect the dots between ALEC corporate funders, the legislation those special interests want adopted, and the lawmakers introducing ALEC bills, ALEC is throwing up all kinds of claims, such as having a right to associate with lawmakers in secret, in spite of laws requiring lobbying and gifts to be disclosed, which ALEC has defied, in my opinion.
ALEC and its allies among some right-wing outlets have also sought to demonize those who dare to speak up about ALEC’s agenda and its dubious operations, through the Orwellian claim that when citizens speak out about ALEC and what companies are funding the American people are supposedly suppressing the speech of powerful corporations. But corporations have enormous treasuries to advance their legislative agendas, and people have a right to hold them accountable.
ALEC also seeks to wrap itself in the First Amendment even as its agenda includes legislation to criminalize journalism, as with its bill to impose onerous restrictions on investigations of factory farms (through its “Ag-Gag” bill), for example. ALEC has recently entertained the idea that it might support anti-SLAPP legislation sought by Yelp, but it remains to be seen if its legislators will put any real effort behind that bill or whether this overture will be just a talking point for PR purposes that does not get any momentum from ALEC lawmakers in the states.
ALEC has also claimed to unwitting reporters that its meetings are open to the press, while denying credentials to reporters, denying press with credentials from seeing the task force meetings where corporations vote alongside legislators, and hiring security and police officers who have interrogated reporters for speaking to un-credentialed reporters or activists.
It has even circulated “face sheets” containing the photos of those who have written stories critical of ALEC (including me). Its PR operations have also helped deploy opposition research against journalists whose investigations have revealed unfavorable facts about it and then touted such stories in emails to lawmakers.
ALEC has recently decided to use the slogan “Protect Free Speech: Be Heard. Speak Up,” but its record indicates contempt for investigative reporters as well as citizens who speak up and ask to be heard on their objections to ALEC’s special interest legislation and to elected representatives voting on ALEC model bills with lobbyists of out-of-state or even foreign companies, behind closed doors. The fact that such legislation still has to be voted on in a legislature before it becomes law does not negate what it means for corporations to vote first. Plus, we have seen in recent years that ALEC legislation has been rammed through legislatures by ALEC legislators, often without hearings and allowing no amendments to bills pre-approved by ALEC corporations.
For these and other reasons, the Committee’s inquiry into ALEC is just and modest, under the circumstances. If this Senate cannot make inquiries into a non-profit or for-profit corporation which has enormous influence on lawmaking and which has been accused of federal tax fraud by numerous citizens, then the Senate needs to be reformed and its investigative powers must be made much stronger.
We commend the Chairman’s courage in holding this hearing and for asking tough questions about the shady operation known as ALEC and its role in remaking U.S. gun laws, as well as many other areas of law affecting people’s human rights and civil rights under our federal Constitution and our state constitutions.
The ALEC/NRA SYG Laws: Their Roots and Their Fruit
By most accounts, the SYG laws that have spread across the country had their genesis in 2005, when the first SYG law passed in Florida, but that ignores the legal and political landscape that preceded that event.
By all accounts, the National Rifle Association is one of the richest non-profit groups in the country. Unlike ALEC, the NRA discloses the costs of its extensive lobbying activities ($2.9 million federally in 2012, an additional sums in the states, through its “Institute for Legislative Action,” the NRA-ILA). The various arms of the NRA had revenues and expenses of nearly 250 million in 2011, the most recent year for which its tax filings are available.
The NRA receives untold sums from global gun sellers, and it also charges $35 per year for people to become subscribers. The NRA and its related organizations paid its Executive Director, Wayne LaPierre, a corporate-style salary of just under $1 million in total compensation in 2011, along with hundreds of thousands in compensation it paid to other NRA executives, according to tax forms.
The NRA is a formidable power in American politics, though it counts only a fraction of American gun owners among its members. It had 3.1 million subscribers to its magazines in 2012, out of an estimated 70 million gun owners in the U.S. In addition to lobbying spending, the NRA’s PAC spent nearly $2 million on direct contributions to political candidates (predominantly Republicans) in 2012, and the NRA spent an additional $19 million on “outside spending” in political advertising, most of which were for negative ads against Democrats and a smaller portion of advertising that favored Republicans. In 2010, the NRA spent an estimated $28 million on political contributions, outside spending, and federal and state lobbying.
To understand the push for the SYG laws, it is important to understand the election cycles that preceded it. In the 2000 presidential race, the NRA ran heavy ads in West Virginia and in Democratic presidential candidate Al Gore’s home state of Tennessee. Gore lost both states. In West Virginia, where I volunteered for ‘Get Out the Vote” activities, the NRA also bought an hour-length ad to abut “60 Minutes” the Sunday before the election that featured hunters and union men in tears, stoked by the NRA that Gore would take away their guns.
In spite of the unprecedented intervention of a majority of the U.S. Supreme Court to stop the recount of votes in Florida counties and the flawed butterfly ballot and ballot punches, part of the political lore of that election has become that Gore lost due to the spending power of the NRA, which worked hard to defeat him in his home region. There was no evidence that Gore had any intent or desire to take away the guns of law-abiding citizens, but that was irrelevant to NRA attack ad campaigns.
After President George W. Bush was sworn in, dozens of new political appointees, such as Ted Cruz who would later be elected Senator from Texas, entered the Justice Department and began working on changing federal laws, including the interpretation and application of gun laws. In the Office of Policy Development, I was the deputy tasked near the end of the Clinton Administration, and after the tragic gun massacre at Columbine, with working with the Deputy Attorney General’s office on gun policy, among other issues. I became the managing editor of the National Integrated Firearms Violence Reduction Strategy, which included inter- and intra-agency recommendations for strengthening U.S. gun laws.
I continued to meet as part of the firearms working group during the transition to the new administration after Bush was sworn in and that is how I came to work briefly with Ted Cruz, who now represents Texas in the Senate. He had been tasked with working on gun issues at the Justice Department as a new Bush appointee who had spent time on the presidential campaign as part of the “Bush-Cheney Florida Recount Team”
In the midst of the transition while I continued to participate in the firearms working group meetings on substantive issues as a career staff member at DOJ, I learned that one of the first activities of the political appointees on the Justice Department’s gun working group was to go on an outing with NRA reps to a shooting range nearby. I was also told that the Attorney General and some of the Schedule C appointees down the hall in the Deputy AG’s office were meeting regularly with NRA reps and critics of Clinton gun policies, like John Lott and others.
Subsequently, newly sworn in Attorney General John Ashcroft issued a letter to the NRA effectively changing decades of Justice Department policy regarding the interpretation of the Second Amendment, to state that it protected a fundamental individual right, suggesting that any regulation of that right is subject to strict scrutiny. That position was contrary to assurances he made in his Senate confirmation hearings, but it signaled a sea change for the Justice Department on gun policies. Seven years later, a split Supreme Court – with the addition of two Bush appointees – would rule 5-4 in favor of the position of Ashcroft and the NRA on that point.
As many recall, in the mid-term elections of 2002, the Republicans took back the Senate, and with one-party control of the political branches, Congress lacked the political will and the numbers to stop the Clinton Administration’s “assault weapons” ban from expiring in late 2004, a presidential election year. Bush was declared the winner of that race, and the Republicans also increased their margin in the Senate.
Following that election, the NRA had no major Democratic bogeyman at the federal level to fundraise against or to stoke fears that Democrats were coming for people’s guns. A majority of state legislatures and state governorships were also under Republican control, which made it easier for the NRA to get its legislation adopted. I believe the NRA was in search of another wedge issue that would suggest that people’s rights were at risk and that would allow the NRA to push through legislation that might aid gun sales while also providing another means to politically punish anyone who dared to vote against its legislative agenda.
How the “Castle Doctrine”/SYG Bill Became the Law
It is against this backdrop that in late 2004, the NRA’s lobbyist and former president, Marion Hammer, invented what became known as SYG legislation.
The bill she “conceived” was dubbed the “Castle Doctrine,” a name that evokes the phrase “your home is your castle.” The name is misleading because in Florida and in every other state, Americans’ rights to defend themselves in their homes from an intruder is well-protected under long-standing laws of self-defense. However, the bill name masked the fact that it was designed to dramatically change the effect of invoking a self-defense claim and to change the substantive law of what counts as justifiable homicide, as described in more detail below.
Ms. Hammer approached two Florida lawmakers who were members of ALEC -- Florida state Sen. Durell Peaden (R-Crestview) and Rep. Dennis Baxley (R-Ocala) -- to get her idea introduced as a bill. In 2005, Sen. Peaden was an ALEC leader, serving on the Executive Committee of ALEC’s “Health and Human Services Task Force.” Baxley, a former head of the Christian Coalition in Florida, is also a member of ALEC. His legislative résumé includes sponsoring bills creating license plates honoring the Confederacy and the Rev. Martin Luther King Jr.
The NRA’s bill was converted to legislative language with the help of other lawmakers, and it was adopted by both houses of the Florida legislature in the spring of 2005. During the votes, Ms. Hammer was reportedly observed staring down lawmakers. The bill was signed into law on April 26, 2005, by Governor Jeb Bush, with Ms. Hammer, looking over his shoulder.
However, because the new law would require that Florida’s jury instructions be changed its implementation was delayed until the fall of the 2005. New jury instructions were to be written over the summer to apply to claims of justifiable homicide before the new law could take effect.
How the Florida SYG Law Became an ALEC “Model” for the Nation
In the summer of 2005, at ALEC’s annual meeting in Grapevine, Texas, the the NRA’s Hammer asked legislators and lobbyists at a closed-door meeting of ALEC’s ‘Criminal Justice Task Force” to adopt the Florida Castle Doctrine/SYG bill as an ALEC model bill. Notably, it was the NRA that brought the bill to ALEC, not the ALEC legislators who sponsored it. That’s because, like many ALEC bills, it was really the special interest’s legislative agenda, not the brainchild of the legislators.
The NRA-ILA posted at the time that Hammer’s pitch “was well received,” and the bill was approved “unanimously” at the ALEC Task Force meeting.
That ALEC Task Force was co-chaired by Wal-Mart, the world’s largest retailer of ammunition; it is nation’s largest seller of guns and ammunition. Also, ALEC's crime Task Force director was Chris Oswald, former “State Liaison” for the NRA.
As noted above, corporate lobbyists and state legislators on ALEC Task Forces have equal votes on proposed model legislation, so the Florida law was ratified by Wal-Mart and its 2005 public sector co-chair, Texas Rep. Ray Allen, along with other state legislators and corporate lobbyists. It was also endorsed by a representative of the Koch-funded Heritage Foundation, according to minutes of the secret meeting. The full list of lawmakers, corporate lobbyists, and special interest groups at that meeting has not been disclosed.
In September 2005, that bill was adopted by ALEC's National Board of Directors, which has a procedure to allow model bills to be approved if there is no objection. At the time, the public sector portion of ALEC’s board was chaired by Georgia state Rep. Earl Ehrhart; the corporate board included Koch Industries, Altria (parent of Philip Morris), Coors, Bell South, and Verizon. (ALEC has said its corporate board does not vote. Corporations and elected officials have an equal vote in the task forces, and the board usually defers and ratifies the model bills adopted.)
At the next ALEC Criminal Justice Task Force meeting, in Coeur D’Alene, Idaho, in 2006, the NRA’s rep reported on the “continued success” in securing passage of the ALEC/NRA Castle Doctrine/SYG bill in other states.
Similarly, in 2007, an ALEC “Legislative Report Card” boasted that the ALEC/NRA Castle Doctrine/SYG bill was introduced or passed in numerous states. ALEC also highlighted legislators who introduced versions of its model bill, including Texas state Sen. Jeff Wentworth and Rep. Joe Driver.
Then, in 2008, ALEC filed an amicus brief in a U.S. Supreme Court case on the same side as the NRA to adopt the Ashcroft view of the Second Amendment. Later, at the American Conservative Union's CPAC meeting, the NRA's Cam Edwards interviewed Michael Hough, who was then ALEC's “Public Safety and Elections Task Force” director/staffer, to discuss “ALEC's strong relationship with the NRA and explain the support of gun rights and ownership.” Hough told listeners that ALEC worked “with our partners, the National Rifle Association” on the brief.
ALEC’s Hough also praised the relationship between ALEC and the NRA on issues like the Castle Doctrine/SYG legislation, stating: “Some of the things that we were pushing in states was the ‘Castle Doctrine,’ we worked with the NRA on that. That's one of our model bills we have states introduce . . . .”
To be clear, this is just one of many instances in which ALEC has talked about what any reasonable person understands to be lobbying, and yet ALEC has repeatedly filed IRS reports claiming to the agency that it does no lobbying at all.
Notably, the NRA was a long-time member and long-time funder of ALEC. An NRA representative was an active part of ALEC’s renamed Public Safety and Elections Task Force, and its predecessor task forces, for at least two decades.
Tara Mica, the NRA-Institute for Legislative Action State Liaison, was also the co-chair of ALEC's Public Safety and Elections Task Force in 2008, 2009, and 2010 and into 2011. While the NRA was co-chair, that ALEC Task Force approved legislation to make it harder for Americans to vote through its controversial "voter ID" bill and also the Arizona anti-immigrant legislation, SB 1070, before it was introduced in the state legislature, in addition to other bills that benefit the private prison industry.
To date, the ALEC/NRA Castle Doctrine/SYG bills have been passed in whole or in part in more than two dozen states. Only in the past year or so has the bill become known as the SYG bill as opposed to the Castle Doctrine, which is the name it bears in almost every state in which it was introduced to become law.
In 2012, ALEC announced it was abandoning its Public Safety and Elections Task Force in the wake of the outcry over Trayvon Martin’s killer walking free. Despite efforts to distance themselves from the Castle Doctrine/SYG legislation, neither ALEC nor the corporations that are funding it have done anything to undo the damage done by this law or other aspects of ALEC’s extreme gun agenda. Despite its efforts to get the bill adopted, it has done nothing to get them repealed.
How the ALEC/NRA SYG Law Changed the Law
The SYG law passed in Florida and adopted as an ALEC model in 2005 makes three main changes to the law.
It attempts to create immunity from criminal prosecution, which it defines broadly to include “arresting, detaining in custody, charging or prosecuting,” for the use of deadly force if a person who claims self-defense, under certain circumstances.
Under traditional criminal law, when a person is killed the state can arrest and charge a person who uses deadly force with a crime and the defendant can assert a defense to the crime, but pre-SYG a state could not be blocked from arresting a suspect in a killing and letting a jury decide if the use of force was justified. The state has the burden of proof of establishing the elements of intentional murder or unintentional manslaughter, beyond a reasonable doubt, and the defense may seek to argue an excuse for the killing, such as self-defense or, in other words, to claim that the killing was justified and so the defendant should not be convicted. While traditionally prosecutors have discretion not to charge in cases of deadly force where self-defense is claimed, what the SYG law does is attempt to tie the hands of police and prosecutors.
It also changes the burden of proof by creating a legal “presumption” that a person had a reasonable fear of imminent death or great bodily harm if that person kills someone believed to be unlawfully entering a home or vehicle, for example. That is, the person who kills another in those circumstances may not actually have had a reasonable fear of death or serious harm, but the SYG law changes the rules to make the law presume that such fear was reasonable and thus killing was justified. It also provides that someone who “attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence,” even if that was not their actual intent.
These presumptions can have the effect of barring the arrest and prosecution of someone who kills another attempting to enter their home. What this means is that the SYG law is designed to prevent a jury from considering whether someone who used deadly force was justified, acted reasonably, and used reasonable force.
Regardless of whether someone who shoots another to death seeks to invoke these presumptions and obtain criminal immunity, the SYG bill also changes the underlying substantive law of the state regarding justifiable homicide.
The ALEC/NRA SYG bill provides that: “A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony.”
By its terms, the NRA/ALEC model bill transports the traditional rules for self-defense in one’s home to any place a person has a right to be, including any public place, such as a bar or a sporting event. This is significant because under traditional criminal law a person outside his home has a duty to retreat and avoid using deadly force if possible.
As a result of the SYG law, Florida’s model jury instructions had to be re-written. Here are the instructions that would have been given, prior to 2005:
"The defendant cannot justify the use of force likely to cause death or great bodily harm unless he used every reasonable means within his power and consistent with his own safety to avoid the danger before resorting to that force.
“The fact that the defendant was wrongfully attacked cannot justify his use of force likely to cause death or great bodily harm if by retreating he could have avoided the need to use that force."
Here is the jury instruction as a result of the SYG law passing in Florida:
“If [the defendant] was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.”
This jury instruction contains the exact language used in the SYG law.
SYG also changes the law to grant immunity from civil suit for a defendant claiming deadly force was justified under the circumstances provided. It does not, however, specify a time-frame for making such a motion.
It also provides that if a judge grants immunity then the plaintiff – the family of the shooting victim – would have to pay the killer’s attorney’s fees and lost wages.
What this part of the law does is make it harder for the family of a shooting victim to sue the killer of their child, spouse, or parent.
It can be difficult to obtain a criminal conviction when self-defense is claimed. A civil trial, however, has many advantages over a criminal trial when someone has died at the hands of another. The first advantage is that the burden of proof is more easily met. Rather proof beyond a reasonable doubt, the plaintiff would have to prove what more likely happened.
The second advantage of a civil case is that, unlike a criminal trial where a defendant cannot be compelled to testify against himself in risk of criminal jeopardy, the victim's family can put the killer under oath. That is, the killer would not be able to invoke Fifth Amendment protections and he or she would be subject to cross-examination by an adversary. If a civil case were not barred by the SYG grant of immunity from suit, a killer who used deadly force causing the death of another would have to justify himself before a jury, which could consider his claims about what happened without any SYG-imposed presumption that deadly force was reasonable or presumption that a victim had any intent to use force or violence. Additionally, upon cross-examination, a defendant’s history of violence could potentially impeach him.
However, the SYG law is designed to try to prevent a jury from considering the facts on the merits, without the thumb of the NRA on the scale of justice.
CMD has assembled an appendix to this statement that provides more details about the evidence in the ZImmerman case and how the law affected the Zimmerman case. That appendix, which is attached below, also discusses the role of the Koch family fortune in funding ALEC and related groups.
For all of these reasons, I applaud the Committee’s consideration of the damaging effects of the SYG laws, the effect of these laws, and who is behind them.
Thank you for considering my views.
Please see the Appendix to CMD's testimony here.