Against "Mastermind" Narratives: Conservative Organizing in Alexander Hertel-Fernandez's State Capture
Interest group influence on American public policy and the political progress is so widely accepted it approaches the level of a truism. Political scientists since the 1970s have had their eye on the growth of this category at the expense of the power of formal political party organizations. But interest groups are far more numerous, their forms more diverse, and their workings far less transparent than the parties they have largely captured. One must combine the sensibility of the scholar with the grit of the investigative journalist to successfully sketch their contours. The best books on the subject perform just this feat; they attend closely to the empirics of power and influence, the specifics of organization and networking, and rely on a plurality of evidence and methods, empirical and theoretical, to do so. The worst books are more keen on selling villain narratives to the hapless, often on the basis of very thin evidence.
Despite the critical acclaim with which it was initially met, Nancy MacLean’s Democracy in Chains was undoubtedly a book of the second sort. MacLean promised readers an explanation of the “master plan” behind the Koch network, as ostensibly devised by Virginia economist James Buchanan. Yet this “master plan” never materializes in the book. In fact it is clear that MacLean not only failed to understand how the Koch network operates, but failed to try. The book is consistently inattentive to detail. In a typical move, she draws a parallel between Buchanan and slavery apologist John C. Calhoun, arguing that “both devised constitutional mechanisms” to achieve their ends, and later quoting a scholar who states that Calhoun utilized a “set of constitutional gadgets.” Not once does MacLean explain what those “mechanisms” or “gadgets” are, for either figure. It is difficult to avoid the impression that MacLean understands neither Calhoun’s “gadgets” nor Buchanan’s theoretical work.
Henry Farrell and Steven Teles rightly worried that liberals would read the book and walk away with the idea that the best way to organize themselves was to devise a master plan and stick to it with diligence. This comic-book notion does not translate well into real world political action, as Teles himself has ably documented in several works, including his now classic The Rise of the Conservative Legal Movement.
In contrast, Alex Hertel-Fernandez’s State Capture delivers on what MacLean merely promises; the book offers a rich, detailed account of the American Legislative Exchange Council (ALEC), its institutional mechanisms and how they developed, along with similar but shorter discussions of the State Policy Network (SPN) and the Koch-run Americans for Prosperity (AFP), and to some extent the broader Koch network. Hertel-Fernandez does not offer much in the way of evil masterminds or other narrative red meat, but few books better equip their readers with the tools to understand conservative and right-libertarian political organization in this country—and to begin thinking about the long-term effort that will be required to effectively counter them.
ALEC and SPN
Teles and Hertel-Fernandez both share an attention to detail and an impatience with bogeyman narratives, even for organizations which do, on their face, have a pervasive influence. Teles, in The Rise of the Conservative Legal Movement, does much to demystify the Federalist Society, which many liberals view as a malevolent puppetmaster pulling the strings of conservative jurisprudence. In fact, the Federalist Society is a network which goes out of its way not to have an “official” position in order to better accommodate a membership of relatively conservative and right-libertarian perspectives. By serving as an alternative to the largely center-left environment found in law schools, but not attempting to influence jurisprudential substance beyond this formal affiliation, the Society is able to accommodate unitary executive conservatives alongside libertarians who are less than comfortable with the implications of that theory.
The Federalist Society has played an undeniably important role in the rise of the conservative law community as a force in American politics. But how it has played that role is important to understand; specifics matter.
Like the Federalist Society, ALEC is first and foremost a network; it brings together state legislators, corporations and industry associations, as well as think tanks and other political organizations. These players work together to develop “model bills” which are then introduced with minimal modification—or in some cases, as we will see, no modification at all—as bills by the legislators. Unlike the Federalist Society, however, ALEC’s origins are much more straightforwardly activist, and ALEC staff do play a key role in the development of model bills by doing the research for and otherwise assisting the legislators who are dues-paying members. Access to this staff is in fact one of the key incentives for membership among cash-strapped and understaffed local legislators, as Hertel-Fernandez discusses:
In a state like Pennsylvania, you would have access to year-round staffers who worked exclusively for you in both your capital and your district offices. According to the most recent data from the National Conference of State Legislatures, there are well over 2,000 staffers for Pennsylvania lawmakers, or an average of about 9 staffers per member. Many of these staffers are highly trained and well compensated. (. . .)But not all states spend as much as Pennsylvania does on staff for their legislatures, and you would be hard-pressed to get assistance in a state like Idaho, where you would only have access to shared staff members in your capital office, and no staff in your district. And in (. . .) North Carolina, staff work only part-time when the legislature is between sessions. If your staff is not an option, where else might you go for help thinking through policy proposals and designing legislation? (. . .)one appealing option for resource-strapped legislators is ALEC, given that the group provides precisely the policy tools that many lawmakers (. . .)lack.
He provides statistical evidence that ALEC is most likely to get a foothold in “states that offer their lawmakers fewer staffers, have shorter sessions in office, and pay their lawmakers the least.” For those legislators with an interest in working on policy, ALEC provides the support and the resources to participate in developing model bills. For those who simply want to look competent, membership offers access to ALEC’s vast library of already existing model bills, as well as “the research, evidence, and political talking points and polling” for any public debate the bills might spur. ALEC staff also assists freshman legislators in navigating the procedural details of their legislatures. ALEC also offers all-expenses-paid corporate sponsored events, paying even for family members to make the trip—-practically a free vacation for underpaid state legislators.
These events, an important component of ALEC’s revenue, are one of many mechanisms by which ALEC acts as matchmaker between legislators on the one hand and interest groups of various kinds on the other. The biggest interests by far are private sector corporate ones, but think tanks and other activist organizations such as the NRA also rely on ALEC for access to and influence with state legislators.
Though ALEC was founded to push a specifically conservative agenda—-and to some extent still does—by the 90s it had moved towards fashioning itself as more of a business, selling “the opportunity to write state policy to private-sector businesses and advocacy groups.” At the core of this strategy were task forces, whose costs are covered by their members and which are “individually responsible for producing and disseminating model bills directly to state legislatures.”
The task forces are designed to generate revenue, influence state policy, and crucially, adjudicate differences among ALEC members.
Even as ALEC’s increasingly entrepreneurial task forces addressed the challenge of attracting financial support in the mid-1990s, the group began facing another obstacle: conflicting policy preferences between its members. Here again, the task forces developed a solution. First, there would be an explicit division of labor between ALEC’s task forces by substantive policy areas, so, for instance, only the agricultural task force could produce and disseminate policy proposals related to agriculture.
(. . .)This division of labor reduced potential conflicts about which issues and policies the group should be promoting. While other national political associations might find their membership deadlocked over deciding which legislative issues to prioritize each year, ALEC delegated its agenda to the companies and activists most invested in those corresponding policy domains. Thus, there were few cases where the group would need to choose whether to pursue, say, policy proposals related to agriculture instead of proposals related to healthcare. It also had the effect of giving the most voice within ALEC to the businesses that had the most to win or lose from a policy—like extractive resource companies fighting measures to address climate change, tobacco companies pushing bills to avoid public health regulation, and telecommunications companies trying to gain access to new markets.
As a result, it’s not uncommon to have bills pushed by one task force be in conflict with the conditions of success for the bills pushed by another task for; Hertel-Fernandez cites bills from the tax and fiscal policy task force aimed at reducing overall state spending, on the one hand, and bills from the criminal justice task force aimed at increasing spending on prisons on the other. Companies like Google, which fund climate change initiatives quite at odds with the output of ALEC’s energy and the environment task force, were nevertheless able use ALEC for their own ends through telecommunications task force.
Level of influence is determined by a tiered membership system based on funding levels.
[T]he group’s leaders established clear criteria for which members would prevail in conflicts within task forces: businesses or activists that contributed more to the organization and enjoyed a higher level of membership would have the last word. The basic level of membership, for instance, qualified members to participate in task forces, but did not grant voting rights over task force decisions. For that, members would need to contribute at least three times more. For an even higher level of membership, members could be guaranteed that their issues would be addressed by a task force: “In addition to the benefits of Lincoln Club membership, Madison Club members may have a Legislative Director work on their behalf on a specific project.” And for still higher levels of membership, corporate managers or activists could be assured that they would have specific input into the design of topics and speakers for the group’s annual meetings.
Thus, if a company found itself at odds with another corporate ALEC member over a particular model bill, both businesses would have a clear expectation of how that conflict would be resolved: the matter would come down to the amount that managers at each company were willing to pay to have that idea spread across ALEC’s membership. This decision rule prevented ALEC from suffering many of the same intra-association conflicts described by other authors in groups like the US Chamber of Commerce or the Business Roundtable. It also created bidding wars between corporate members of ALEC that helped bring in more revenue.
The bidding mechanism itself is very clever for all the reasons Hertel-Fernandez lists in the above passages, but any activist reading this with interest ought to pause before appropriating this device. One can only profit from an auction when one provides a good that buyers desire enough to bid against one another to obtain. ALEC spent decades building relationships with state legislators, who in turn provide word of mouth marketing to their junior colleagues. They can boast approximately a quarter of all state legislators among their membership. That is a major commodity which ALEC can gatekeep access to. Their success in milking this advantage for funds gives them a further advantage in investing in the very things that attract the state legislators in the first place: staff, all-expenses-paid events, and to some extent access to the corporate patrons themselves. It is a classic multi-sided market, a very difficult thing to replicate.
ALEC’s own success was hardly foreordained. Though business interests and small government conservatism seem like a natural marriage from an abstract point of view, the consummation of this relationship is, in practice, frequently elusive. Teles documented how this marriage went awry in the early days of the conservative public law movement, as the narrow interests of the donor class effectively cut off any sort of broad strategic action. Rather than a large scale coordinated network, these early organizations became balkanized, particularized, and died off at the first whiff of conflict between the ideology of the rank and file and the interest of a major donor. ALEC itself was anemic for its first decade, and even as it reinvented itself it would not find its footing until it was into its third decade, reaching the greatest heights of its influence actually quite recently.
There was never a master plan. There was a great deal of trial and error, and the organization was on the path to insolvency more than once. The ultimate institutional design they arrived at was by no means obvious; we cannot be certain that anyone else would have come up with it had they gone broke before devising it themselves. There is a contingency in all of this which must not be underestimated by those who would seek to replicate its model, but nor should it obscure the possibility of learning genuinely useful lessons.
SPN’s existence is even more contingent—in fact it is specifically contingent on ALEC’s early and continuing support, and that codependence remains to this day. When it began in the mid-80s, the head of ALEC shared the organization’s donor list with SPN (then known as the Madison Group), and “waived ALEC’s hefty task force and conference participation dues to encourage Madison Group attendance at ALEC’s events.” SPN continues to be a major participant in the development of ALEC model bills and indeed uses this fact as marketing for itself.
SPN is a “national association of conservative, state-level think tanks across the country that share resources, tactics, and information.” At a 2013 event which drew “a group of nearly 800 conservative policy experts, activists, donors, and corporate executives from 48 states,” SPN President Tracie Sharp called the organization’s approach an “IKEA model.”
[I]nstead of selling cheap beds and end tables made of pressed wood, SPN conceived of itself as producing policy change across the states around a common set of policy goals: stymieing implementation of President Obama’s landmark healthcare and environmental programs, reducing the power of labor unions, tightening voting requirements, cutting labor market and environmental regulations, and privatizing state services. To achieve these goals, SPN provided “raw materials” and “services” from a “catalogue” to its affiliated conservative policy groups operating within each state, materials that SPN members could use to design legislative campaigns that worked best given their own local political and economic climates.
What are these “raw materials”? SPN offers a number of services for its member-think tanks, many of which involve information sharing and coordinating action. They host regional and national gatherings and training sessions, and administer a set of surveys to member organizations in order to “gauge their effectiveness, strategies, the landscape of opposition and allies they faced in each state, and what the national network could provide to affiliates to better support the work that they did. (. . .)The questions ranged from the more general—explaining an affiliate’s origins—to the very specific—listing salary ranges for all personnel and computer equipment used by those staffers. SPN also used the opportunity of the survey to encourage affiliates to reach out to other conservative think tanks and advocacy groups outside of the network, especially ALEC.”
SPN develops and attenuates the services it provides its members based in part on the results of these surveys. Among the benefits is a “think tank school” for the leadership of new “market-oriented think tanks” that helps to develop “relevant think tank skills, foster professional standards, and advance state think tank work as a vocation.” In addition, SPN plays an important role as matchmaker for fundraising, in providing tips on how members can develop donor relationships of their own, as well as providing direct funding in the form of grants.
As mentioned, SPN is deeply tied to ALEC.
On an institutional level, SPN is a member of ALEC (and vice versa), and many SPN members serve as private-sector members on ALEC’s task forces. At last count, some twenty-two affiliates had formal membership in ALEC working groups. SPN encourages such ties, seeking donor funding to pay for more of its affiliates to cover the hefty dues to join ALEC’s task forces (think tanks, in principle, pay similar rates to private-sector companies). This was a special priority for current SPN head Tracie Sharp, who made a push for fundraising to pay for ALEC dues beginning in the mid-2000s. After that, SPN affiliates “have been at the table with state legislators and other private sector members to draft model legislation,” glowed one SPN newsletter in 2009.
(. . .)Examining the sources of the deep ties between ALEC and SPN highlights a strength of SPN as an association. On the one hand, SPN affiliates are institutionally and legally separate from SPN national headquarters. This lets each affiliate make the case to lawmakers, journalists, and political observers that they are homegrown operations, run by staff who are deeply embedded in their local political scenes.
(. . .)Yet even as the SPN think tanks bill themselves as institutions that have been independently created and run within each state, the national network—through SPN headquarters—steers individual affiliates toward particular policy agendas and priorities through sizable grants earmarked for specific purposes— like defeating Medicaid expansion or participating on specific ALEC task forces. Through that strategically directed support, SPN can get the benefits of the appearance of affiliate independence while also ensuring that those affiliates are generally on the same page when it comes to resources and policy coordination.
It is, once again, not useful to think of ALEC and SPN as masterminds pulling the strings behind the scenes. They are organizational mechanisms—which exist in close symbiosis with one another—that turn what might otherwise be a smattering of unrelated or loosely related legislators, corporate interests, activist organizations, and think tanks, into a coordinated community of political action.
Americans for Prosperity (AFP) and the Koch network
Nowhere does Hertel-Fernandez’s commitment to careful, scholarly analysis shine so brightly as in his treatment of the Koch network, a subject which has drawn a great deal of scrutiny in the last decade. Right at the beginning of the first chapter, he builds up a great deal of credibility for those familiar with the matter:
Another source of confusion comes from accounts of ALEC that emphasize its connections to Charles and David Koch, the two mega-wealthy libertarian industrialists who are often known colloquially as the “Koch brothers.” (. . .)It is certainly true, as we will see, that ALEC has been supported by the Kochs’ main corporate arm. But to call ALEC part of the vast “Kochtopus” of organizations created and managed by the two brothers mischaracterizes both ALEC and the Koch network. ALEC is not now, nor has it ever been, part of the Kochs’ main network of political organizations. As best as we can tell, funding for ALEC flows not from the Koch brothers’ “seminars” of wealthy donors that finance their more ideological spending, but rather through their business. And unlike the other organizations that the Kochs direct, ALEC is not helmed by close Koch Industries operatives.
In other words, Koch Industries makes use of ALEC like any other corporation attempting to influence state legislation in order to advance its pecuniary interests. Charles and David Koch’s activism network is a distinct creature.
Charles Koch is, of course, one of the two chief villains of MacLean’s dime store novel history; he is the will-to-power builder to whom James Buchanan supposedly played the role of architect and mastermind. Hertel-Fernandez does not minimize the very large role of the Koch network in our political order, but he does attend to its actual outlines, its specifics. For example:
Let’s start with the first misconception about the Koch network: that it is all about the brothers themselves. It is certainly true that Charles and David have invested large and unprecedented sums of their own money into politics, including recent elections. In 2016, for instance, Charles and his wife donated a total of over $4 million to Republican candidates for federal office, according to disclosed Federal Election Commission records. Yet the most important part of the Koch political story is not the brothers, nor election-time giving. Rather, it is the overlapping set of organizations that they have created over many decades. Not only do those organizations raise funds that easily surpass the brothers’ individual giving, but these groups wind up being more influential, hiring staffs of hundreds of political organizers and strategists who oversee efforts to intervene in politics year in and year out, in both elections and policy debates and across levels of government. It is these core organizations that have either been created by the Kochs and their top associates, or that are mostly (if not entirely) supported by Koch funding streams, that merit our attention.
He pushes back not only on the MacLean-type sensationalists, but even the investigative journalists who have done good work but perhaps emphasized the wrong details.
Investigative journalists have tended to focus on the “maze of money” that the Koch network has distributed through its “secret bank” of the Freedom Partners Chamber of Commerce to hundreds of disparate right-leaning groups. Working with The Washington Post’s money in politics team, the Center for Responsive Politics assembled a tangle of organizations—ranging from the National Rifle Association to the US Chamber of Commerce—that had received Koch backing in 2012. Important as that work is, trying to parse the “labyrinth of tax-exempt groups and limited-liability companies” obscures just how concentrated Koch giving really is in recent years. Though the Koch network has at times made an array of grants to many different conservative organizations, most of the money raised at the seminars flows to a handful of the main Koch-directed and controlled groups. From 2013 to 2014, nearly 80 percent of all Koch-raised funds in the Freedom Partners “bank” flowed to just nine of the main Koch groups (. . .)and of those core funded Koch organizations, the largest share went to AFP. By 2015, over 90 percent of Freedom Partners grants were directed to the Kochs’ main groups, and again mostly to AFP.
He provides a useful typology of the network, and the oldest by far are “organizations dedicated to developing and disseminating libertarian political philosophies and policy ideas” such as the Cato Institute. Next are several straightforward lobbying groups, and then a pair of hubs for donors through which money is acquired and distributed to the larger network. Quite recently they have spun up what Hertel-Fernandez refers to as “election utilities,” about which he says little, but includes their data analytics operation i360. Most of his attention is given to AFP, which falls under what he calls “constituency mobilization.”
AFP began its life as Citizens for a Sound Economy (CSE) but was rebranded after the Kochs broke with CSE chairman Dick Armey. It was substantially reorganized after this divorce.
Like CSE, it combines central direction—policy agendas and broader strategy are set from AFP’s national headquarters—with grassroots volunteers and activists who can be mobilized as needed for political campaigns. Yet AFP goes well beyond CSE’s initial structure by establishing a clear federated operation that has institutionalized state and regional staff embedded in the local political landscape.These directors organize grassroots supporters to stage rallies, write, call, and visit elected officials, and contact the media. Directors are generally responsible for raising money from in-state donors themselves to run their operations, but can also count on funds from the treasury controlled by AFP’s headquarters to run television, print, and radio ads supporting issues and candidates as part of national campaigns. Most state directors have previously served in Republican politics, and many will return to work for GOP campaigns, legislative offices, and organizations after their tenure at AFP, giving these directors an important source of influence and pressure within their local Republican establishment.
Further unlike CSE—and unlike many other organizations operating in US politics—AFP directs this political clout in both policy and electoral campaigns, seamlessly moving from electing very conservative state and federal lawmakers to aggressively lobbying those same politicians to enact their preferred legislation.
So-called astroturfing organizations like AFP are often blamed for outbreaks of mass protest like the Tea Party, Occupy Wall Street, or the more recent George Floyd protests, but these are very different phenomena. The spontaneous, social media induced, and leaderless nature of these protests, many of which swept the world last year, is well documented. Martin Gurri, my father, wrote the book on it. That book offers the best phenomenology and basic theory of contemporary mass protests, and yet there is a kind of organization he argues is basically extinct which is difficult to square with the existence of AFP:
Not long ago, a revolutionary was a dedicated professional. To achieve his goal, he needed an organization to conduct command and control, a published program to explain the need for radical change, resting on an ideology which persuaded and attracted large numbers of the public—who would then be formed into a mass movement by means of command and control.
Today, each individual member of such organizations can air its dirty laundry and internal divisions on social media, and often do. Organizational discipline of the old sort, exemplified, for example, in the “self-purification” rituals which the SCLC would engage in, is difficult, perhaps impossible, under current technological conditions.
But then how to explain AFP, which is not only a large organization with a centrally mandated program, but which is ostensibly “resting on an ideology which persuaded and attracted,” according to Hertel-Fernandez, “2.4 million activist-volunteers.” The methods by which AFP achieves such numbers are fairly prosaic:
AFP enrolls volunteers by hosting events and rallies, knocking on the doors of known GOP voters, making phone calls to potential conservative allies, and relying on sign-ups on its social media and Internet pages. The reasons that grassroots volunteers sign up are varied. Some join because they are committed to the specific agenda of AFP, like lower taxes or less environmental regulation. Others may be more interested in the social issues that AFP studiously avoids—like immigration, gay rights, or abortion—but are willing to support the same ultra-conservative politicians AFP backs.
In many cases, AFP draws from existing conservative groups in the states, especially local Tea Parties. And sometimes AFP simply pays individuals to sign up as volunteers. In 2012, for instance, Florida’s AFP chapter paid local Tea Parties $2 per volunteer they signed up for AFP. “It’s an opportunity for tea parties to raise dollars for their organizations by helping AFP with an awareness and membership drive,” explained AFP-Florida’s director. Regardless of how they are recruited, grassroots volunteers have little say on the agendas and activities of their state or local AFP chapters. By all accounts, AFP is directed just like other Koch operations: from the center, with tight control and little room for error. Poorly performing state directors, for instance, can expect a transfer or even dismissal.
We are living in neither the end of history nor the end of organized social and political action, though the history may take unexpected turns and the organizations may adapt in unpredictable ways. We need work like State Capture to help us understand the contours of the possible, to see what has been done and what roadblocks have proved fatal.
Taking the long view
And what a work it is. Hertel-Fernandez employs a variety of methods to trace the shape of his subject matter. The most novel involves following the path of bills that have been copy and pasted, verbatim—errors and typos and all—from ALEC model bills to bills introduced in state legislatures. This involved the very labor-intensive work of traveling to specific state legislative libraries and scanning in around 1,000 unique bills. He then used this as the basis for statistical analysis. Nor was this the only data on which he performed analysis of this type. The book is also full of case studies and draws on organizational newsletters and personal correspondence. In short, it is a phenomenal and well rounded work of scholarship.
He closes the book with an analysis of why liberal counter organizations have thus far failed to meet the challenge posed by the “troika” of conservative state-level coordinators. He offers several, but I will highlight one in particular: myopia. Many of the attempts that Hertel-Fernandez discusses ran out of funding when Democrats enjoyed any success at the federal level, as donors lost interest in anything more local. Contrary to what the MacLean types might believe, the problem here is not a lack of funds; Hertel-Fernandez addresses this specifically. The problem is how the funds are used.
No one can deny, after almost four years of President Donald Trump, that federal elections in general and the presidency in particular matter. But liberal ends cannot be truly and reliably met by means of these brittle instruments alone. Though the liberal and leftist policy sphere contains many capable single-issue organizations, and an embarrassment of think tanks, it contains nothing that combines expansiveness of scope with innovativeness of organizational form in so effective a combination as ALEC in particular, but SPN and AFP as well.
The liberal ALEC cannot be a clone, for the particular affinity with corporate interests will not translate readily into a liberal or leftist organization. But there is still much to learn from these organizations, the specific challenges they faced, and the methods they developed to meet those challenges.
Hertel-Fernandez offers some tentative thoughts on possible avenues for liberals to pursue that caters to their particular political strengths. For this reason and more, liberals seeking to understand our current political landscape with the hope of changing it owe it to themselves to read State Capture. Read it, begin to organize, and then invest in organizers with vision and a commitment to the long view.
Featured Image is The Bosses of the Senate
