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J UNE | 2009 alec.




Criminals on the Streets

your right to know

Reducing Recidivism
and Treating Individuals

Why Green Jobs Are a Liability

Preventing Election Fraud

june | 2009

Speaker Bill Howell
Virginia House of Delegates
Citizen’s Right to Know 7
by michael hough and rebecca hurley Private Enterprise Board Chairman
Jim Epperson, AT&T
Project Update. Across the country, govern-
ment agencies have taken on the awesome
responsibility of releasing defendants from jail Executive Director
prior to their court dates. Alan B. Smith

Senior Director, Policy and Strategic

Michael Bowman
Senior Director, Events and Meetings
Rachael Heiner
Reducing Recidivism and 4
Treating Individuals Senior Director, Membership and
by Michael Hough Development
Mike Conway
The Jewish Recovery Houses in Pikesville, Md.,
treat substance abusers dealing with severe drug INSIDE ALEC STAFF
and alcohol addictions. Editor
Jorge Amselle
Blowing Bubbles 6
by Matt Warner
Drop Cap Design, LLC
Why “Green” Jobs Are a Liability, Not an
Asset. Can the government limit and tax energy ALEC EXHIBITS AND ADVERTISING
Ron Pallace
generation, redirect revenues and claim a net
exhibits@alec.org or (202) 466-3800
Exhibiting or advertising at an ALEC event
is a great way to promote your company
The Challenge of Photo ID 13 to members of both the private and public
by Stephen Elzinga sectors. If you are interested in exhibiting
or advertising at an ALEC meeting, please
Can legislation prevent election fraud contact Ron Pallace.
without disenfranchising voters? Requiring
voters to provide photo ID or alternative docu-
ments a method of fraud prevention at the polls.
© American Legislative Exchange Council

1101 Vermont Ave., NW, 11th Floor

Washington, DC 20005
(202) 466-3800
Fax: (202) 466-3801)
State Spotlight Mississippi Reaffirms 10th Amendment Rights 3 www.alec.org
Member News from Memphis and Kansas 15
ALEC Meetings Calendar 16

2 • Inside ALEC | June 2009


Mississippi Reaffirms
10th Amendment Rights

teve Palazzo, ALEC member and Mississippi State Representative, recently
introduced a resolution based on ALEC’s Model Resolution to Restate State
Sovereignty, calling on the federal government to respect the 10th Amendment to the U.S. Constitution, which states
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” The resolution also calls on the federal government to repeal legislation that sends unfunded and
unconstitutional mandates to the states.

“The federal government is en- After the federal government enacted to take care of a family member. For
croaching into our every day lives at the enormous stimulus bill, filled with states whose unemployment funds were
an alarming rate, from dictating how unfunded mandates and requirements already in the red, this is a recipe for di-
we teach our children to funding fed- for states, similar resolutions were intro- saster once federal funds run out.
eral initiatives that many believe to be duced in 35 states and enacted in five. In States now review the fine print when
immoral, over-regulating and taxing Texas, Gov. Rick Perry signed his state’s agreeing to partner with, or incorporate
our citizenry, meddling in our personal 10th Amendment resolution saying, “I federal policy into, their state laws. The
lives and interfering with the affairs of believe that our federal government has 10th Amendment resolutions represent
our state. We must stop this unchecked become oppressive in its size, its intru- state lawmakers calling on the federal
growth of the government before it’s too sion into the lives of our citizens and its government to stop forcing its agenda
late. State legislators must lead the fight interference with the affairs of our state. onto the states and to respect the system
because the power the federal govern- That is why I am here today to express my of federalism created by our founding
ment is illegally assuming is ours,” said unwavering support for efforts all across fathers. Resolutions, like the one intro-
Rep. Palazzo. our country to reaffirm the states’ rights duced by Rep. Palazzo, are needed now
affirmed by the 10th Amendment.” more then ever.
Governors of several states, includ- In the words of Thomas Jefferson,
ing Alaska, Idaho, Louisiana, Missis- “When all government, domestic and
sippi, Texas and South Carolina, have foreign, in little as in great things, shall
indicated they will reject federal stimu- be drawn to Washington as the center
lus funds because of required changes of all power, it will render powerless
to state laws that will increase spending the checks provided of one government
and create future budget liabilities. An on another, and will become as venal
example of this are the strings the federal and oppressive as the government from
government attached to states who take which we separated.” Constitutional
Mississippi State Representative Steve Palazzo money for their unemployment funds. power must be restored to the states and
is the owner of CPA firm Palazzo & Company, In order to receive full federal funding, to the people. It is the duty of each state
PLLC. Steven has been in the legislature since
2007 where he is Treasurer of the Conservative states have to liberalize their unemploy- to reaffirm its sovereignty and serve no-
Coalition and Co-Chairman of the MS Legislative ment laws by giving unemployment tice to the federal government to cease
Sportsmen’s Caucus. He is also a Marine veteran
of the Persian Gulf War and currently serves in benefits to part-time workers and work- and desist all activity outside the scope
the MS Army National Guard. ers who leave a job to go to school or of its constitutional powers. ||

Michael Hough is the director of ALEC’s Commerce, Insurance and Economic Development & Public Safety and Elections Task Forces.

Inside ALEC | June 2009 • 3


Reducing Recidivism
and Treating Individuals

couple of weeks ago I toured free while they stay at the house. They Contin and then moved on to heroin.
the Jewish Recovery Houses must also pay $125 in rent a week and Mr. Rokos stated that privately-run fa-
in Pikesville Maryland, which maintain a job or attend school. All cilities like the Jewish Recovery Houses
treat Jewish substance abusers dealing of the clients are Jewish and there are were not only helping addicts, but also
with severe drug and alcohol addic- separate housing facilities for men and aiding society as a whole because the
tions. One of our ALEC members, State women. Like most 12-step programs, cost for not treating these individuals
Senator Alex X. Mooney (MD), accom- the spiritual nature of recovery is pro- would be increased crime. Research has
panied me on the tour. moted and residents are encouraged to born this point out with studies con-
Given that ALEC’s Public Safety and attend services at the local synagogue. sistently showing a strong correlation
Elections Task Force is focusing on the Program Director Michael Rokos ex- between illegal drug-use and criminal
issues of reducing recidivism and treat- plained to us that the homogeneous activity:
ing individuals with drug and alcohol culture allows clients to feel they are
addictions, I thought it would be help- part of a community during recovery, • The Department of Justice found
ful to tour a privately-run treatment and this helps a great deal because that over 27 percent of violent crimes
facility that is having great success in these individuals have severed most of were committed by individuals who
treating addiction. their relationships in life. were using drugs at the time of the
Residents at the Jewish Recovery Most of the residents at this facility offense;
Houses must remain drug and alcohol started off abusing legal drugs like Oxy-
• Almost 10 percent of inmates in
state prisons committed their vio-
lent crime in order to get money for

• In 2006, there were 14,990 drug-

related homicides

Many are now concluding that pro-

viding treatment for drug addiction
both in and out of prison is a sound in-
vestment to reduce crime. Facilities like
the one Sen. Mooney and I visited make
a good case for increasing funding for
addiction treatment. After leaving our
tour, Sen. Mooney remarked “I talked
and met with residents of the facility
who were turning their lives around. I
truly believe these people would still be
Inmates completing faith-based rehabilitation are significantly less likely to be rearrested or re- suffering if it were not for this unique
incarcerated. treatment facility.”

Michael Hough is the director of ALEC’s Commerce, Insurance and Economic Development & Public Safety and Elections Task Forces.

4 • Inside ALEC | June 2009


Sen. Alex X. Mooney (MD), on right, and Task Force Director Michael Hough touring a Jewish addiction treatment facility”

In fact, many other facilities with programs for inmates to ready them for that states should adopt a voucher pol-
similar goals around the country do not life outside of prison. They run the In- icy which would allow each individual
measure success rates, partly because terchange Freedom Initiative, which is to choose the type of drug treatment
they are hard to track and partly be- privately-funded and operates in Texas, they wanted, whether faith-based or
cause the results can be discouraging. Minnesota, Iowa, Kansas, Arkansas and secular. The key he said is to fund pro-
On the other hand, over half of the in- Missouri. grams that effectively treat addiction
dividuals who graduate from the Jewish Most state prisons offer some sort of and thereby relieve prison overcrowd-
Recovery Houses are able to stay clean treatment program – even though many ing and reduce crime.
and sober for the five-year period that are sorely lacking. Twenty-three states How states ultimately decide to deal
the organization measures. This level of currently operate faith-based treatment with prison overcrowding and crime,
success is consistent with other faith- facilities. While individuals in these comprehensive drug and alcohol treat-
based treatment facilities. prisons may get treatment, it is often ment should be part of that solution.
A six-year evaluation of a faith- much more difficult for those on the Privately-funded facilities are doing
based prison reentry program called outside to find help. great work and states should work with
the InnerChange Freedom Initiative A great number of drug addicts lack them as an ally to battle addiction. ||
(IFI) found that inmates completing the health insurance, and facilities like the
program were significantly less likely to Jewish Recovery Houses rely on private
be rearrested (17 percent versus 35 per- donations to operate. Because of federal
cent) or re-incarcerated (eight percent and state restrictions on funding, many For more information about the Jewish Re-
versus 20 percent). IFI is administered private facilities with homogeneous covery Houses you can visit their website
by the Prison Fellowship Ministries, populations or faith-based treatment at www.jewishrecoveryhouses.org and for
which recently joined ALEC as a pri- plans cannot receive funding. information about the Prison Fellowship
vate-sector member. Prison Fellowship Mr. Pat Nolan, the Vice President of Ministries or to sign up for their e-reports,
Ministries operates voluntary prerelease Prison Fellowship Ministries, advised go to their website at www.pfm.org.

Inside ALEC | June 2009 • 5

SPEC IAL R E POR T: Nat ural R eso urces

Blowing Bubbles
Why “Green” Jobs are a Liability, Not an Asset

hile this year’s cap-and- designed to reduce CO2 emissions. What is Cap and Trade?
trade showdown has not Washington, which was one of the first
quite reached its zenith in states to follow California’s lead in CO2 A cap and trade policy for greenhouse
gases would limit the nation’s greenhouse
Congress, the big hurdles for cap-and- reduction policies, was unable to pass
gas emissions by issuing or auctioning a
trade proponents have already emerged new cap-and-trade legislation this ses- limited number of permits to those who
in polls, state-level debates and infight- sion despite it being the top legislative emit. The purpose of cap and trade is not
ing on Capitol Hill. These hurdles be- priority of the state’s governor. Oppo- simply to reduce greenhouse gases but
came undeniable early this year in the nents complained the proposal would also to raise energy prices so that conven-
Pew Research Center’s January poll hurt the economy and would “lead to tional sources of energy lose their natural
results1 which put “global warming” job losses and business failures.”2 cost advantages over alternatives.
twentieth on a list of issues Americans Maryland proponents of similar
consider “top priorities.” Number one legislation were able to win passage in in statute that the state needs to remain
and two on the list were “economy” and their state but the compromises they competitive with other states and pre-
“jobs.” This is a major thorn in the side were forced to make reveal just how serve existing jobs. The legislation gives
of those hoping to impose new costs on difficult it is to ignore the economy and the state’s Department of the Environ-
America’s conventional sources of ener- jobs hurdles. The legislation calls for a ment the unenviable and, some would
gy through a cap-and-trade system for CO2 emissions reduction of 25 percent say, impossible task of coming up with
carbon dioxide emissions. below 2006 levels by 2025 and 90 per- a plan to meet the targets in “a manner
This priority set has continued to cent by 2050, but it exempts the larg- that promotes new “green” jobs, and
emerge at the state level as legislatures est emitters, including manufacturing protects existing jobs and the state’s
have debated new or strengthened laws and electricity generators, explaining economic well being.”3
In the nation’s capitol, House Dem-
ocrats have begun to challenge openly
the priorities of Speaker Nancy Pelosi
(D-CA), and committee chairmen Rep.
Henry Waxman (D-CA) and Rep. Ed
Markey (D-MA), cosponsors of cap-
and-trade legislation entitled American
Clean Energy and Security Act of 2009.The
Democrats are hoping to avoid tough
votes on cap-and-trade legislation that
will hurt energy-intensive industries in
their states and cause job losses.4
With these tall hurdles to clear,
proponents of cap-and-trade have tried
to go on the offensive claiming eco-
nomic benefits associated with cap-
and-trade legislation and, in particular,
continued on page 11 - Green

Matt Warner is the director of ALEC’s Natural Resources Task Force.

6 • Inside ALEC | June 2009


Citizen’s Right to Know

Private Bail Agencies Help States Monitor Criminals

ver the last couple of months, I have traveled across the country discussing one of ALEC's
new State Factor policy briefs, “Criminals on the Streets: A Citizens Right to Know.” I’ve
traveled to Tennessee, Florida and Texas to discuss our paper and model bill. Due to the
tough economy, legislators are facing difficult budget decisions this year. At ALEC we are
looking for wasteful government programs legislators can cut or reform. One program legislators should
look at is government-run pretrial release (PTR) agencies.
Across the country, in almost ev- are government entities, a large portion which operates at no cost to the tax-
ery state, there are government agen- of their funding comes from tax dollars. payer – with a less efficient government
cies which have taken on the awesome Currently there are about 400 PTR op- alternative. In fact, commercial bail gen-
responsibility of releasing defendants erations scattered throughout the coun- erates tax revenues and when a crimi-
from jail prior to their court dates. In try. They range in size from hundreds nal absconds the bail agent must forfeit
most states there are two methods for of employees with multimillion dollar the full amount of the bond to the state.
releasing defendants from jail – the first budgets to small, part-time operations. In contrast, when the government runs
method is commercial bail, which re- Overall, they cost the public close to bail, once the defendant disappears no
quires defendants to pay a small portion $100 million per year. one pays bail. In Philadelphia alone, as
of their bond in order to be released. The For those who believe in limited recently reported by the Philadelphia En-
second method is government-run PTR government and the supremacy of the quirer, criminals have cost the city $1
agencies, in which defendants pay noth- free-market, these agencies are frustrat- billion over the last 30 years by skip-
ing or only a small deposit and are re- ing as they replace a well-functioning ping out on city-issued bail bonds. This
leased from jail. Because PTR programs private-sector model – commercial bail, “revolving door of justice” essentially

Michael Hough is the director of ALEC’s Commerce, Insurance and Economic Development & Public Safety and Elections Task Forces.
Rebecca Hurley is a research assistant at ALEC.

Inside ALEC | June 2009 • 7

alec policy forum

forces taxpayers to subsidize the release police. They don’t have the resources to In addition to the Department of
of dangerous criminals who are left free chase fugitives and the only place they Justice, the academic world has spoken
to commit new crimes. are likely to re-arrest an absconder is at a out on this subject. In April 2004, the
The government has proven to be random traffic stop or during apprehen- University of Chicago Law School Jour-
ineffective when it comes to making sure sion for another offense. In contrast, in nal of Law and Economics published an
defendants return to court after they are the commercial bail industry, due to the article by economic professors Eric Hel-
released and apprehending them when existence of a financial incentive, appre- land and Alexander Tabarrok, that con-
they skip bail. Not surprisingly, in states hension of the absconder is the highest cluded:
where the government is the only option priority for a bonds agent. In fact, bail
for bail, the number of fugitives and the agents return close to 97 percent of their “Defendants released on surety
number of failures-to-appear in court skips. bond are 28 percent less likely
have dramatically increased. In Oregon, Among those freed using govern- to fail to appear than similar de-
which banned commercial bail in 1978, ment-issued bonds was Paul Merle fendants released on their own
“the failure-to-appear rate has skyrock- Eischeid, a member of the notorious recognizance [via PTR], and if
eted,” said District Attorney Joshua Mar- motorcycle gang, the Hell’s Angels. Eis- they do fail to appear, they are
cheid, who was arrested for his connec- 53 percent less likely to remain at
tion with a brutal assault and murder of large for extended periods of time
In the commercial bail an Arizona woman, was released on his ... Given that a defendant skips
industry, due to the own recognizance and required to wear town, however, the probability
a tracking device. In short order, he se- of recapture is much higher for
existence of a financial cured a spot on America’s Most Wanted those defendants released on a
incentive, apprehension list after removing the device and flee- surety bond. As a result, the prob-
ing. ability of being a fugitive is 64
of the absconder is the In Oregon, a man with 49 previous percent lower for those released
highest priority for a bonds arrests and at least 15 convictions was on surety bond ... These findings
released on a government bond while indicate that bond dealers and
agent. Bail agents return awaiting trial for burglary. During this bail enforcement agents ... are ef-
close to 97% of their skips. time, he kidnapped and raped a 13 year- fective at discouraging flight and
old girl. at recapturing defendants.”
Also in Oregon, Robert Holliday
quis. Criminal who skip court dates cost was kidnapped and murdered by Lee We can also look at individual states
taxpayers in terms of rearranging and Knoch, who was out on government to see how PTR is working.
rescheduling court dates, finding and bail and awaiting trial for a previous as-
apprehending fugitives, and wasting the sault against Holliday. • Illinois, which was the first state to
time of judges and prosecutors. Not to Not only are there numerous hei- adopt the 10 percent cash deposit
mention the additional costs resulting nous examples, but thanks to a recent system, according to the Illinois
from any new crimes committed while study by the Department of Justice, it Criminal Justice Authority reports a
the criminal is free. In it's 1997 study, is clear that upwards of 30 percent of failure-to-appear rate of 21 percent
“Run Away Losses,” ALEC found that the defendants released by the government, for women and 30 percent for men;
cost to the local system for every failure who fail to appear in court, remain fugi-
to appear is $1,273.81. The equivalent tives after one year as compared to 19 • Oregon, which outlawed commer-
of $1,688.17 in today’s dollars. percent of defendants released on com- cial bail, has a failure-to-appear rate
Unlike the commercial model, in mercial bail. The Department of Justice of 40 percent;
PTR agencies there is no incentive for study concluded the following:
government agencies to retrieve crimi- • New Jersey eliminated their 10 per-
nals who become fugitives. In fact, de- “Compared to release on recog- cent government bail program in
fendants who abscond represent one less nizance, defendants on financial 1995.
person a government bureaucrat has to release were more likely to make
supervise. When a person fails to appear all scheduled court appearances. By comparison we know the free-
at a court hearing, a warrant is issued Defendants released on an unse- market alternative commercial bail does
for their arrest and they are entered into cured bond or as part of an emer- a good job of supervising pretrial de-
a national FBI criminal database. The gency release were most likely fendants. Commercial bail also causes
warrant squads of most law enforcement to have a bench warrant issued other parties to become stakeholders
agencies are minimally staffed and the because they failed to appear in in the future of the defendant. In many
pursuit of fugitives is a low priority for court.” cases, family members or friends will

8 • Inside ALEC | June 2009


pay the fee required to release the de- court, more and more judges are relying the Citizen’s Right to Know Act. Unfor-
fendant from jail and place liens on their on commercial bail. In fact, the percent- tunately in Texas, where the law was en-
property in order to post bail. The bail age of defendants released on commer- acted in 1995, many PTR agencies are
bond creates a circle of responsibility cial bail has increased from 25 percent refusing to turn over required informa-
wherein family or friends have a mon- in 1990 to over 40 percent in 2004. tion, or what they turn over is impossi-
etary incentive to make sure the defen- The Department of Justice study, ble to decipher by the public. Last year,
dant makes all of his or her scheduled along with a number of academic stud- this problem led ALEC's Public Safety
court appearances. Studies have shown ies, prove the public is appreciably safer and Elections Task Force to amend its
that commercial bail helps maintain so- with defendants released by commercial Citizen’s Right to Know model bill by
cial control over defendants during the bail than by government PTR. Which adding an enforcement sanction for PTR
pretrial period. system does the taxpayer fund? The agencies who do not comply with the
Commercial bail has a long history in more dangerous one. law.
America as it is an outgrowth of English If state and local governments are If necessary reforms in the criminal
common law. In medieval times a mag- going to continue to fund and operate justice system are to occur, the public
istrate would travel the countryside and PTR agencies, there needs to be some ac- and legislators need to know how much
try defendants. Rather than hold these countability brought to the system. Just money is being spent to bail criminals
defendants until the magistrate arrived, as a number of states are enacting trans- out of jail, and how many individuals
the local sheriff would release them into parency requirements when it comes to are skipping their court-appointed hear-
the custody of friends or family. This spending, similar laws should be enact- ings and subsequently committing new
system carried over into America and ed when it comes to PTR agencies. The crimes. With many states facing tight
is enshrined in the U.S. Constitution in primary purpose of government is the budgets and deficits in the years ahead,
the Eighth Amendment which prohibits protection of life and property. Unfortu- the question needs to be asked "Why do
the use of “excessive bail.” In the current nately, information about the effective- lawmakers continue to fund a govern-
system, when a criminal is incarcerated ness of PTR agencies is woefully lacking. ment service that is being provided for
upon probable cause, he or she has bail About half these agencies do not even free and better by the private-sector?"
set by a judge and once bail is posted keep track of their failures to appear. States with PTR agencies should at a
they are let out of jail until their next Furthermore, it is a matter of justice minimum adopt ALEC’s Citizen’s Right
hearing. For a small fee – usually 10 per- to the taxpayer that PTR agencies should to Know Act. The information from this
cent of the total bond amount – a bail keep records on those they release and bill is needed so legislators can reform
bonds agent will take responsibility for make that information available to the dangerous PTR agencies that are po-
the defendants bail. A bail bonds agent public. PTR agencies owe an account tentially increasing crime and releasing
works with an insurance company who of their stewardship to the public who criminals at the taxpayer’s expense. ||
acts as a “surety” and guarantees the full funds them and for whom they work.
amount of the bond. The Citizen’s Right to Know bill would
At a minimum, agents have to meet right this wrong by demanding that PTR
the state’s licensing and continuing edu- agencies reveal:
cation requirements. They have to com-
ply with other regulations pursuant to • Their budgets and staffing;
business and professional codes. In addi-
tion, they have to honor their contractu- • The number of, and kind of, release ©2009 by the American Legislative
al requirement with the courts and their recommendations made; Exchange Council. All Rights Reserved.
insurance company on every bond they Except as permitted under the United
States Copyright Act of 1976, no part
write. They are subject to a tax on in- • The number of defendants released of this publication may be reproduced
surance premiums and exposed to legal and under what kind of bond; or distributed in any form or by any
liabilities like any other business. If their means, or stored in a database or
client skips, they have to pay a forfeiture • The number of times a defendant retrieval system without the prior
permission of the publisher.
in favor of the state. The commercial has been released, his or her failure
bail bonds industry is a natural market- to appear for court and crimes com- Published by
driven development. Over the last 100 mitted while on release; American Legislative Exchange Council
years, commercial bail has become well 1101 Vermont Ave., NW, 11th Floor
Washington, DC 20005
established and 47 states have enacted • Report the above in a timely and in-
statutes allowing public authorities to telligible way and make it available Phone: (202) 466-3888
accept commercial bail. Because this to the public. Fax: (202) 466-3801
system costs taxpayers nothing and does www.alec.org
a good job bringing defendants back to Both Texas and Florida have enacted

Inside ALEC | June 2009 • 9

O P- E D

Rage Against Anti-pre-emption proponents often

contend that federal regulations provide
only “minimum standards.” This is very

Federal Pre-Emption misleading. It focuses on only part of a

product. “Strengthening” one aspect of a
“minimum” design may create new risks
Does it Hurt Public Safety? and decrease a product’s overall safety.
BY victor schwartz & cary silverman Regulators consider complex scien-
tific, technical and public policy issues.
Their goal is to provide the most good
for the greatest number of people.

here are a narrow range of prod- Without pre-emption, a lay judge
ucts – the cars we drive, the and jury – even with the best intentions
medicines we take, the equip- – may undo these well-reasoned deci-
ment workers rely upon – that are sub- sions. Their focus is on one highly sym-
ject to rigorous federal oversight. In pathetic injured person in a courtroom
these areas, Congress, federal agencies and a battle of experts. The thousands of
and the courts have found that random people who benefited from the product
liability lawsuits, claiming that a prod- or service are not in the courtroom. They
uct could somehow be made “safer” or are totally absent from the jury’s view.
“stronger” or include even more fine Unfortunately, Congress and the
print disclaimers, disrupt the agency’s President seem poised to take the law-
In the 1980s, the National Highway
delicate balancing of risks and benefits. Transportation Safety Administration found suit industry’s bait on broad abolish-
Judges call this “pre-emption.” that airbag technology of the time posed an ment of pre-emption.
unacceptable risk of hurting or killing people,
Pre-emption helps ensure that law- and decided not to require air bags. Recently, President Obama issued a
suits do not undermine regulators little-noticed Executive Memorandum
charged with protecting public health mandating air bags just as seatbelt usage instructing federal agencies to identi-
and safety. Nevertheless, pre-emption is was slowly gaining public acceptance fy, review and potentially reverse, their
under major assault by wealthy personal could lead passengers to abandon seat- views in favor of pre-emption dating as
injury lawyers and some politicians. belts entirely. Wisely, the U.S. Supreme far back as the Clinton Administration.
Eliminating pre-emption would in- Court rejected lawsuits that would have The Obama memo comes on the
crease the number of lucrative lawsuits effectively reversed NHTSA’s carefully- heels of a Congressional hearing on leg-
against industries that are closely regu- reasoned decision. That’s pre-emption islation that would overturn a sound
lated by the government. But if anti-pre- working to protect public safety. U.S. Supreme Court ruling that experts
emption personal injury lawyers have Today, enterprising plaintiffs’ lawyers at the FDA, not individual judges and lay
their way, Americans will be the true have new theories to sue auto manufac- juries, should decide whether medical
losers, at risk of loosing their lives. turers. They would like to claim vehicles devices are safe, effective and available
In the 1980s, the National High- should exceed strengthened roof crash for potentially life-saving treatments.
way Transportation Safety Administra- standards, even when NHTSA found These are the first steps toward the
tion (NHTSA) decided not to require air that would render many vehicles more personal injury bar’s collective goal of
bags. NHTSA found the airbag technol- prone to rollovers. eliminating all pre-emption so that its
ogy of the time posed an unacceptable Plaintiffs’ lawyers would also assert members can have free reign to sue. Fed-
risk of hurting or killing people, partic- that manufacturers should wedge four eral agencies, Congress and the courts
ularly “out-of-position” passengers such seatbelts in the back seat of a car, even should not let personal injury lawyers
as small women and young children. as NHTSA cautions that cramped seat- pre-empt the health and safety of the
NHTSA was also concerned that ing discourages the use of seatbelts. American public. ||

Victor Schwartz and Cary Silverman are members of Shook, Hardy & Bacon L.L.P.’s Washington, D.C.-based Public Policy Group and nationally recog-
nized experts on product liability law. Edited for length. Re-printed with permission from the Washington Examiner, June 2, 2009.

10 • Inside ALEC | June 2009


continued - Green The government expenditure in favor policies with blinders on, looking only
the promise of new “green” jobs. While of theater workers is seen but the sixty at what is created, not destroyed. Even
the definition of “green” job is a subject thousand francs worth of economic ac- more troubling, jobs that emerge as a
of some debate, it generally refers to any tivity that did not occur because of the result of political decisions are highly
job that contributes to the production tax or fee responsible for the govern- unlikely to produce as well for the econ-
of renewable energy or supports efforts ment revenue is not seen and almost omy since they do not represent true
to reduce the carbon dioxide emissions never contemplated by subsidy pro- demand. Bastiat makes this point well
of any economic activity. The argument ponents who claim only the benefits when he writes, “for the best proof that
that “green” jobs will be an economic including, in this case, employment.
boon to the nation is used frequently Bastiat argues, “Surely, no one will dare Proponents of “green”
and widely by proponents of cap-and- maintain that the legislative vote has
jobs like to evaluate the
trade and other policies pushing renew- caused this sum to hatch out from the
able energy sources. President Obama’s ballot box; that it is a pure addition to economic impact of their
Web site promises to create five million the national wealth ... It must be admit- policies with blinders on,
“green” jobs as part of an economic re- ted that all that the majority can do is
looking only at what is
covery.5 In the press release of the Wax- to decide that they will be taken from
man-Markey discussion draft, both somewhere to be sent somewhere else, created, not destroyed.
sponsors touted the “green” jobs their and that they will have one destination
legislation would create. In Rep. Mar- only by being deflected from another ... theatrical work [ed: think “green” em-
key’s words, “We will create jobs by the Let us not, then, yield to the childish il- ployment] is not as productive as other
millions, save money by the billions and lusion of believing that the vote ... adds work is that the latter is called upon to
unleash energy investment by the tril- anything whatever to national well-be- subsidize the former.”
lions.”6 Analysis of the bill performed ing and employment. It reallocates pos- The result is a bubble industry that
by the Environmental Protection Agen- sessions, it reallocates wages, and that requires continual support from public
cy (EPA) goes along with the sponsors’ is all.”8 sources to keep from collapsing, since
claims concluding the bill would “play Proponents of “green” jobs like to there is insufficient private sector de-
a critical role in the American economic evaluate the economic impact of their mand to support the supply created
recovery and job growth.”7
Can these claims be true? Can the
government limit energy generation
among conventional energy sources,
tax remaining generation activity by
requiring the purchase of allowances,
redirect these revenues towards em-
ployment in the renewable and energy
efficiency sectors, and claim a net ben-
efit for the national economy? Both eco-
nomic theory and practice say no.

Theory from France, Practice from

Arguing against a proposed subsidy of
sixty thousand francs for the theater
industry in the mid-1800s, economist
and statesman Frédéric Bastiat ex-
plained that when government takes
money from one sector and redirects it
to another, it does not create something
without also destroying something else.

Inside ALEC | June 2009 • 11

SPEC IAL R E POR T: Nat ural R eso urces

by government reallocation of capital. da Álvarez show that the public invest- pacity grew 806 percent in 2007 and
This support has many forms including ments in Spain have destroyed 2.2 jobs 903 percent in 2008.12
subsidies (production tax credits, e.g.), for every “green” job they have created. In 2007, the Spanish government
mandates (renewable portfolio stan- Calzada arrives at this figure by totaling began to revise these policies by reduc-
dards, e.g.), taxes (cap-and-trade, e.g.) the subsidies provided to the renew- ing the subsidies and imposing annual
and direct investment (stimulus bill al- able energy market (wind, solar and caps on capacity growth in an attempt
locations for energy efficiency projects mini-hydro) between 2000 and 2008 to head off further explosions in public
and “green” jobs). In fact, the premise (£28,671,000,000) and dividing that liabilities. It was too little, too late for
for the policy is to support with govern- total by the total number of jobs cre- at least 15,000 laid-off workers so far
ment money those sectors that are not ated in those sectors during that time this year whose jobs depended on arti-
economically viable on their own. They (50,200). Then he divided that figure ficial demand in the solar energy sector.
are valued by the political class, not the (£571,138) by Spain’s average stock of Calzada concludes, “This reflects the
energy consuming public, as evidenced capital per worker over the period 1995 boom/bust nature of the renewables in-
by today’s consumption preferences in to 2005 (£259,143).10 dustries, or any others which exist and
the energy market. For example, in the This finding reveals some of the true subsist solely due to subsidies, mandates
electricity market, the national fuel mix costs of public investment in “green” jobs and similar regimes,” and cautions that
in 2008 was 49 percent coal, 21 per- and it confirms the theory that the costs this phenomenon, “must not be ignored
cent natural gas, 20 percent nuclear, 6 are likely to be higher than the benefits. by any country claiming a desire to rep-
percent hydropower and only 3 percent Calzada also warns that the bubble cre- licate Europe’s experience.”13
renewable sources.9 ated by Spain’s renewable energy poli- Debates over the economic impact
Bastiat’s arguments from two centu- cies is very likely to burst, especially of cap-and-trade should never be won
ries ago aside, we have a contemporary in the solar energy sector, which is the by proponents who point to “green”
example of the “green” jobs phenom- costliest to subsidize per kilowatt hour. jobs as the answer. “Green” jobs rep-
enon in the case of Spain and its gov- The combination of the government’s resent another costly government pro-
ernment’s heavy investment in renew- pro-renewable energy policies which gram, not a cost-mitigating solution to
able energy and “green” jobs. We know include subsidies, regulated prices (575 cap-and-trade. Whether government
Spain’s case is worth visiting since it is percent above the mean reference rate uses the revenues from a cap-and-trade
often touted by U.S. advocates includ- for smaller renewable energy operations program or some other revenue source
ing President Obama as an economic and 300 percent above the same rate to fund new “green” jobs is irrelevant.
recovery and job creation strategy. But for larger operations),11 and guaranteed Either way the “green” jobs come at
the findings of a new study by King purchase caused extraordinary growth a cost – a cost we can be sure will be
Juan Carlos University’s Gabriel Calza- in recent years. For example, solar ca- higher than any benefits promised. ||

1 Economy, Jobs Trump All Other Policy Priorities in 2009. The Pew Research 7 EPA Analysis of the Waxman-Markey Discussion Draft: The American Clean
Center for the People and the Press. January 22, 2009. http://people- Energy and Security Act of 2009. Executive Summary. April 20, 2009.
press.org/report/485/economy-top-policy-priority http://epa.gov/climatechange/economics/pdfs/WaxmanMarkeyExecu-
2 Lawmakers Thwart Gregoire’s Cap-and-Trade Plan on Climate. Lawrence tiveSummary.pdf
Cornwall. Seattle Times. March 16, 2009. http://seattletimes.nwsource. 8 What Is Seen and What Is Not Seen. Selected Essays on Political Economy.
com/html/politics/2008865324_capandtrade16m.html Frédéric Bastiat. http://www.econlib.org/library/Bastiat/basEss1.html
3 Annotated Code of Maryland. Environment Section 2-1201 through 9 U.S. Department of Energy, Energy Information Administration, Power
2-1211. Subtitle 12. Greenhouse gas Emissions Reductions. www.state. Plant Operations Report (EIA-923). 2008 preliminary generation data.
md.us www.eia.doe.gov
4 Democrats Duel over Climate Bill. Patrick O’Connor and Lisa Ler- 10 Study of the effects on employment of public aid to renewable energy sources.
er. The Politico. May 5, 2009. http://www.politico.com/news/sto- Gabriel Calzada Alvarez. King Juan Carlos University. March 2009.
ries/0509/22052.html p.28. http://www.instituteforenergyresearch.org/green-jobs-resources/
5 New Energy for America. Barack Obama website. http://my.barackobama. 11 Ibid. p. 13.
com/page/content/newenergy. 12 Ibid. p. 15.
6 Chairmen Waxman, Markey Release Discussion Draft of New Clean Energy 13 Ibid. p. 18.
Legislation. U.S. House of Representatives Committee on Energy and
Commerce. March 31, 2009. http://energycommerce.house.gov/index.

12 • Inside ALEC | June 2009

The Challenge of Photo ID
Can Legislation Prevent Election Fraud without Disenfranchising Voters?

2002, Congress passed
the Help America Vote Act
(HAVA), which established
ID requirements for first-time voters who
register to vote by mail without provid-
ing an ID document, a driver’s license
number, or the last four digits of a social
security number. HAVA requires such
voters to present a government-issued
photo ID or a copy of a current utility
bill, bank statement, government check,
paycheck, or other government docu-
ment that shows the name and address
of the voter. Twenty-four states have
subsequently adopted voter ID require-
ments that go beyond HAVA. The most
proactive states in this area are Arizona, – both in terms of the cost in time and The provision of free ID
Georgia, Indiana and Missouri – all of money for obtaining an ID – amounted
which have acted to secure the integrity to a “severe” restriction on the right to
cards for non-drivers is an
of the election process by requiring all vote. Second, the judge found a sub- essential step in preventing
voters to present photo ID at the polls. stantial likelihood that the law imposed the disenfranchisement of
The experiences of these states provide a a de facto poll tax by requiring someone
helpful guide for other states interested to sign an affidavit of indigence before
voters according to the U.S.
in enacting similar legislation. being able to obtain an ID card without Supreme Court.
Two potential constitutional limita- charge.
tions for voter ID legislation came to A week after this initial district court voters aware of this new requirement.
light in the court battle over Georgia’s ruling, the 11th Circuit Court of Ap- The Eleventh Circuit Court of Appeals
2005 voter ID law. The law required peals upheld the injunction. However, a has upheld that decision. A similar law
voters to present photo ID at polling lo- 2007 rewrite of the law including a new in Missouri that provided free IDs was
cations in order to vote and charged a section providing free IDs upon demand struck down by the Missouri Supreme
twenty-dollar fee for obtaining a special was eventually upheld by the same dis- Court under a provision of the state
ID card for those that did not already trict court judge, who rejected the claim constitution.
possess a photo ID. In 2005, a federal that this was a severe burden on the In 2008, the U.S. Supreme Court up-
district court issued a preliminary in- right to vote or that the incidental costs held the photo ID requirement of Indi-
junction against the enforcement of this involved in obtaining an ID amounted ana’s voter ID law in Crawford v. Marion
law, citing two primary faults. First, the to a poll tax. The district court judge County Election Board. In a complex split
judge found a substantial likelihood also approvingly cited the extensive ed- decision, the court upheld the Indiana
that the difficulty of obtaining photo ID ucation efforts made by Georgia to make law by a 6-3 vote, but issued two sepa-

Stephen Elzinga is a research assistant working with ALEC's Public Safety & Elections Task Force. He is currently a senior at Patrick Henry
College majoring in government.

Inside ALEC | June 2009 • 13


rate opinions as to why the law was con- cast a provisional ballot and return • Comprehensive distribution of ID
stitutional.1 In Crawford, the court rec- later with valid photo ID.5 cards
ognized that “even handed restrictions” A concerted effort to provide ID
protecting the “integrity and reliability Because a key consideration in the cards to all citizens, especially to mi-
of the election process itself” are consti- Crawford decision was that Indiana was norities, the elderly, and the disad-
tutional. The three-judge plurality opin- able to demonstrate several problems vantaged would mitigate some of the
ion found that Indiana’s distribution of in their election system that a photo ID objections that photo ID laws are dis-
free voter ID cards and the availability of law would fix – including highly tainted criminatory. While a state may find it
provisional ballots for voters without ID voter rolls with the names of thousands hard to meet the costs of a sustained
satisfied the first part of this test; the sec- of persons who had moved, died, or re- push to disperse ID cards, a transi-
ond part was met by Indiana’s interests cently been convicted as felons – other tional program that lasts for a year or
in “deterring and detecting voter fraud,” states should carefully consider whether two and includes mobile office units
safeguarding against registration rolls their own unique situation may require being sent to disadvantaged commu-
with a number of “persons who are either additional precautions. However, there nities, nursing homes, and the like is
deceased or no longer live in Indiana,” was no requirement that Indiana show entirely within reason.6
and “safeguarding voter confidence.”2 prior evidence of impersonation fraud
The three-judge concurring opinion in Indiana to justify a voter ID law. Taking these precautions may be the
went further by holding that whether or In 2005, the bipartisan Commission difference between success and failure.
not the law “imposed a special burden on Federal Election Reform, co-chaired Such provisions will not only broaden
on some voters is irrelevant” and that the by former President Jimmy Carter (D) the appeal of photo ID laws, but also
law was valid because “the overall bur- and former Secretary of State James A. provide an additional layer of protection
den is minimal and justified.”3 Baker, III (R), issued a report entitled in the event of a court challenge.
An analysis of Crawford suggests “Building Confidence in U.S. Elections.” ALEC’s model bill on this issue, the
several critical elements that must be In addition to recommending photo ID Taxpayer and Citizen Protection Act re-
present in a voter ID law for it to be requirements, the report suggests two quires qualified electors to present one
constitutional. States can improve the provisions that can be added to voter form of identification that bears the
chances of a law being upheld in court ID laws that would not only give such name, address, and photograph of the
by including two key parts in any pro- laws more bipartisan appeal, but also al- voter or two different forms of identifi-
posed photo ID legislation: leviate some concerns that lower courts cation that bear the name and address
have raised about voter ID laws in the of the voter prior to receiving a ballot.
• Distribution of free voter ID cards past: A requirement that voters provide either
The provision of free ID cards for photo ID or two alternative identifica-
non-drivers is an essential step in • Aggressive promulgation of new tion documents (instead of just one non-
preventing the disenfranchisement voter ID requirements photo ID like HAVA requires) is a strong
of voters according to the U.S. Su- When it comes to the right to vote, step toward the prevention of fraud at
preme Court.4 normal means of promoting public the polls. ||
awareness of a change in the law
• Availability of provisional ballots may not be enough. An aggressive
The U.S. Supreme Court held that advertising campaign to notify vot- To view ALEC’s Taxpayer and Citizen
Indiana law provides an adequate ers of new ID requirements before Protection Act, visit the model legislation
remedy for voters who forget their ID the first election in which they take page of the Public Safety & Elections
on Election Day by allowing them to affect could make a big difference. Task Force at www.alec.org.

1 Crawford v. Marion County Election Board, 553 U.S. ---, 128 S.Ct. 1610, 4 Id, at 1620 (Stevens, J., plurality).
1613 (2008) (Stevens, J., plurality). 5 Id, at 1621 (Stevens, J., plurality).
2 Id. at 1617-1620 (Stevens, J., plurality). 6 Commission on Federal Election Reform, “Building Confidence in U.S.
3 Id. at 1624 (Scalia, J., concurring). Elections,” (American University, 2005), 33-34.

14 • Inside ALEC | June 2009


Rich States, Poor States in Kansas

ALEC's Rich States, Poor States issue briefing in Kansas was a huge success. Jona-
than Williams met with Wichita business leaders, gave an interview on local TV,
and attended a dinner for community leaders, including Rep. Steve Brunk – a Tax
and Fiscal Policy Task Force member. Jonathan then traveled to Topeka and was
interviewed on the Jim Cates radio show before going to the Capitol to meet with
ALEC state chairs Ron Hein and Majority Leader Ray Merrick. ALEC’s issue brief-
ing luncheon attracted more than 40 legislators (including the new Speaker of the
House) to hear about Rich States, Poor States and its implications for Kansas. Speak-
ers included Donna Arduin (a partner of Art Laffer) and Dr. Art Hall of Kansas
University (and a task force advisor) who addressed the current budget shortfall,
federal stimulus dollars and possible tax increases. Americans for Prosperity and
The Flint Hills Center for Public Policy co-sponsored the lunch with ALEC. Rich States, Poor States
Grabs National Attention

Legislators Gather in Memphis » Rush Limbaugh talked

about people fleeing New
ALEC’s Spring Task Force Summit in Memphis, TN, held May 1-2 was tremen- York's high taxes and dis-
dously successful and one of the best attended ALEC spring meetings. ALEC Task cussed ALEC's Rich States,
Force members considered many important Model Bills, and heard valuable pre- Poor States report April 13
and May 18.
sentations on the federal stimulus and the states from Mississippi Governor Haley
Barbour and Congressman Marsha Blackburn (TN). Speaking on climate change
issues were Kimball Rasmussen, CEO of Deseret Power, and Phelim McAleer and
» Jonathan Williams, Direc-
tor of ALEC's Tax and Fiscal
Ann McElhinney, producers of the environmental film “Not Evil, Just Wrong.” Policy Task Force and a co-
Please look for additional information on new ALEC Model Legislation from this author of Rich States, Poor
meeting in future issues of Inside ALEC. States, appeared on the
Glenn Beck Program May
18, discussing why more
taxes are not the answer to
state budget problems.

» Williams appeared on the

Lou Dobbs Radio Show On
May 20 to discuss the Cali-
fornia state budget mess.

» An editorial by Dr. Arthur

Laffer and Stephen Moore
featuring RSPS appeared in
The Wall Street Journal on
May 18, the New York Post
on April 19, and the May
Mississippi Governor Haley Barbour with 28 edition of The Washing-
ALEC’s Tennessee State Chairman, ton Times.
Rep. Curry Todd (top).

ALEC Private Sector Board Members Preston

Baldwin, Vice President State Government
Affairs for UST Public Affairs Inc., and David Order a hardcopy or
Powers, Vice President State Government download the complete PDF:
Relations for Reynolds American Inc., enjoy a www.alec.org
day at Graceland (right).

Inside ALEC | June 2009 • 15

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CALENDAR Mark your calendar now,

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