Model legislation: Arizona lawmakers and no pride of authorship

Rep. Celeste Plumlee, D-Tempe, speaks on the floor of the Arizona House of Representatives on May 3, 2016. Plumlee sponsored a model legislation bill to reform employment and labor laws, which included language and ideas from previous legislation in other states and various special interest groups. House Bill 2569 did not receive a committee hearing./ Photo by Sarah Jarvis/AZCIR
Rep. Celeste Plumlee, D-Tempe, speaks on the floor of the Arizona House of Representatives on May 3, 2016. Plumlee sponsored a model legislation bill to reform employment and labor laws, which included language and ideas from previous legislation in other states and various special interest groups. House Bill 2569 did not receive a committee hearing./ Photo by Sarah Jarvis/AZCIR

Arizona Center for Investigative Reporting

When Arizona lawmakers sponsored a 2016 house bill banning the sale of ivory and rhinoceros horn products, the bill matched almost exactly to language in legislation proposed outside Arizona.

But House Bill 2176, which never got a committee hearing, was not the only bill in the state’s 52nd legislative session that borrowed ideas, either in concept or verbatim, from bills in other states.

At least a handful of the 1,361 bills introduced in Arizona this year match bills introduced in other state legislatures, according to an AZCIR analysis comparing Arizona legislation to more than 500,000 bills, proposed in other states over the past eight years.

Nearly identical legislation introduced in multiple states, or “model legislation,” comes from national or regional industry associations, individual companies, or policy think-tanks and advocacy groups.

Some seek to create legal uniformity on technical topics that were passed successfully in different states, while others propose changes on a range of issues, from partisan pet projects to regulations that advantage certain companies or industries.

Emily Shaw, deputy policy director at the Sunlight Foundation, a nonprofit organization that advocates for transparency in government, said model legislation isn’t new, and that it’s target can range from dramatic to subtle.

When model legislation is not aimed at a lightning-rod issue, Shaw said model bills frequently make slight tweaks to state law that can have a big impact on a business or an industry’s bottom line.

“It’s not just the exceptional cases like on abortion restrictions or gun sale regulations,” she said. “It’s more about where money goes.”

Groups that push model legislation such as the National Conference of State Legislatures (NCSL), the American Legislative Exchange Council (ALEC) or the State Innovation Exchange (SiX), among others, defend the practice. They argue there’s no need to reinvent the wheel in each state, and that if something is effective in one, it should be replicated elsewhere.

Others criticize model legislation, saying it reveals a pay-to-play political system by which organizations connect interest groups with lawmakers and top-dollar lobbyists who then exert outsized influence on legislators, serving the desires of those willing to finance each part of the process. They say the practice also reveals a departure from the idea that constituents’ needs drive states’ legislative agenda.

Shana Sally, a spokeswoman for ALEC, acknowledged that representatives of corporations are allowed to vote on what becomes a model ALEC bill, and said it would be unfair to leave them out, considering that they are so heavily impacted by changes in state laws and regulations.

Sally said ALEC’s model policies are available on their website, and that they’re open about what the organization represents.

“It’s the age old fight of limited government vs big government. We’re the people who represent groups that favor limited government.” Sally said. “We are not ashamed about what we do.”

legislationNick Rathod, the executive director of SiX, also acknowledges that his organization aims to change policies nationally by targeting state legislators, though SiX pushes left-leaning ideas.

“Because of the perpetual gridlock in Washington, D.C., a lot of policy making is moving to the states and people feel like they can have even more influence on state legislatures at much less of a cost,” Rathod said.

Both organizations claim ill motivation in the other. Sally said SiX serves the interests of liberal elites who fund them, such as George Soros. Rathod says the fact that ALEC allows corporations to vote on which policies to adopt means they’re in the pocket of big businesses looking only to maximize profits.

But making concrete observations about when and where it’s been used has been practically impossible, Sunlight Foundation’s Emily Shaw said.

“There’s not been an easily searchable copy of all legislation across the country,” Shaw said.

A new tool could change that.

How a bill becomes a law

The 1976 Schoolhouse Rock classic “I’m Just a Bill” told us constituents pick up the phone, explain to a legislator why a law is needed, then the lawmaker dutifully writes a bill and the legislative process ensues. If the song were written today, it would need some revision.

In 2015, the University of Chicago’s Data Science for Social Good Fellowship program developed the Legislative Influence Detector to analyze similar text in bills across the U.S.

The application combines a database of more than 500,000 pieces of proposed state legislation with an algorithm that can compare phrases to every recorded bill. The application is similar to “plagiarism detectors” frequently used by universities to check that student work is original.

For each piece of legislation passed through the algorithm, the application returns a file that shows which phrases match to previous bills. Each matching phrase is scored based on how many letters and words match.

The scores can indicate bills that might originate in other states, or come from organizations that have introduced them elsewhere.

Using the tool, AZCIR analyzed bills proposed during Arizona’s 2016 session. Some of the results showed clear pieces of model legislation. In other cases, the results indicated bills that at least partially borrow ideas from other places.

House Bill 2348: Motor vehicle dealers; compensation

House Bill 2348 would change the way auto dealers and auto manufacturers distribute the costs associated with vehicle recalls and work covered by warranties, by having car manufacturers pay the retail cost of labor and parts.

The bill was introduced by Rep. Rick Gray, R-Sun City. He said it was brought to him by auto dealers, and that the proposal would create fairer distribution of costs.

But the bill has been run in other states, and Dan Gage, of the Alliance of Automobile Manufacturers, said this is one of several pieces of legislation that tilts the costs toward manufacturers.

From his group’s perspective, Gage said the bill can lead to an overall increase in car service costs. Dealerships, he argued, could raise their service hourly costs, giving wage increases to workers, and the full cost of the labor would be passed onto the manufacturers.

Some sections of the Arizona bill match exactly to legislation in other states, such as the 2014 West Virginia Senate Bill 630.

“This isn’t a bill the Arizona dealers invented,” Gage said.

Gage said organizations such as National Automobile Dealers Association bring auto dealers together from across the country, where they discuss ideas for legislation they can advocate for in their state, often in a way that financially benefits dealerships at the expense of the auto manufacturers.

At the state level, Gage said auto dealerships typically have stronger relationships with lawmakers than auto manufacturers. State campaign finance records show auto dealerships and their owners have typically been willing to contribute large amounts of money to candidate campaigns.

“They’re on the chambers of commerce and the rotary. We do have a small PAC, but it’s nothing compared to the dealers,” Gage said.

The bill passed the Arizona Legislature and was signed by Gov. Doug

House Bill 2310: Biological products; prescription orders

Unlike most pharmaceutical drugs, which are created by mixing chemical compounds, new advances in medicine mean “biological” drugs, which are manufactured from a living organism, are becoming more common. Insulin and vaccines are biologicals that have been used for decades, but a drug like Humira, used to treat rheumatoid arthritis, is a newer example.

Regulations about how generic drugs can be substituted for name-brand drugs don’t work for biologicals because it’s impossible to create the exact same biological compounds.

Rep. Regina Cobb, R-Kingman, introduced HB2310 to establish a regulatory framework for “biosimilar” drugs, which are demonstrated to have the same outcomes as the name-brand biological drugs. Biosimilars cannot be substituted for biological drugs in Arizona without first establishing the regulatory framework.

Cobb said the legal framework benefits patients who want access to biosimilar drugs, which would come at a lower cost. But the bill initially proposed certain actions before substituting a biosimilar drug for a biological drug, requiring a pharmacist to call a prescribing doctor in any case when a biosimilar drug might be substituted for a biological.

So while the bill established the first ability to substitute the cheaper biological alternatives, it also put up barriers to do so. Groups such as the Arizona Pharmacy Alliance and America’s Health Insurance Plans initially opposed the bill, until these provisions were moderated.

Similar provisions of HB2310 can be found in bills introduced in other states. In 2015, it was introduced in Louisiana House Bill 319 and North Carolina House Bill 195. Sections of the bills match verbatim.

The bill passed the Arizona Legislature and was signed by Gov. Ducey.

House Bill 2275: Genetically engineered foods; labeling

Rep. Juan Mendez, D-Tempe, sponsored HB2275, which would require food made with genetically modified organisms to be labeled as such, with retailers responsible for labeling produce and manufacturers responsible for labeling packaged foods.

“I feel like we are part of this huge, giant scientific study that we’re not even being told that we’re being tested on,” he said. “I just want people to know what food they’re buying.”

Vermont passed a similar bill that will go into effect this summer. Two U.S. senators have proposed federal bills this session regarding food labeling—one that would prohibit states from implementing mandatory food labeling laws, and one that would require food manufacturers to label GMOs in their products.

HB2275 did not receive a committee hearing.

House Bill 2176: Ivory; rhinoceros horn; sales; prohibition

Sen. Andrew Sherwood, D-Tempe, said he has looked at other states’ legislation to get started with his own bills.

“It probably makes a more compelling case on the Congress if you say ‘look, 10 states have already done this, so let’s just do what these guys are already doing,’” Sherwood said. “This Congress isn’t doing much of anything. So if you want to get results, maybe the way you do do it is piece by piece, and you start building those coalitions on a different altitude of government.”

This session, Sherwood assisted Rep. Richard Andrade, D-Glendale, in sponsoring HB2176, which bans the sale of ivory and rhinoceros horn products apart from educational purposes.

Theoretically, lawmakers could just study good legislation in other states and incorporate laws that have proven effective into their own bills, Sherwood said. But he added that lawmakers should have their own ideas as well.

HB2176 did not receive a committee hearing.

House Bill 2569: Employment and labor omnibus

Rep. Celeste Plumlee, D-Tempe, sponsored HB2569, which implements various changes to employment regulations regarding minimum wage, equal pay, sick leave and more. Plumlee said she worked closely with Sen. Katie Hobbs, D-Phoenix, and that they took several provisions from bills in other states and from the State Innovation Exchange.

Plumlee said it makes sense to use model legislation, especially for a bill with as wide a range of topics as HB2569.

“If that’s already been kind of worked out, and some of the logic has been thought through, then it makes sense to use it,” she said.

John Fetherston, a Democratic policy advisor who worked on the bill, said the wage disclosure portions came from Minnesota, the sick leave portion came from the United Food and Commercial Workers International Union, and that the scheduling portion came from Democratic U.S. Sen. Elizabeth Warren’s Schedules That Work Act.

HB2569 did not receive a committee hearing.

House Bill 2617: Israel; boycotts; contracts; investments

House Bill 2617, which was passed with significant bipartisan support and signed by Gov. Ducey early in the session, prohibits any company that is contracted by the state or political subdivision from engaging in a boycott of Israel.

Moving forward, any company that is contracted by the state has to put as much in writing. The state will also keep a list of companies that do not meet the prohibition requirement.

Barbara Leff, a former Arizona lawmaker who supported the bill, said that although the bill isn’t being formally pushed by a national advocacy group, a strong base of support has coalesced around the idea of protecting Israel from boycott efforts.

The bill matches almost exactly to a bill passed in Illinois in 2015, and closely hews to a bill passed in South Carolina during the same year.

Interstate compacts

Agreements between multiple states—interstate compacts—are one common form of model legislation. Rep. J.D. Mesnard, R-Chandler, sponsored two interstate compacts this session, one of which calls for a balanced-budget amendment to the U.S. Constitution.

“There’s a general feeling that congress just doesn’t have the will,” he said. “I think that having a more involved role for the state has merit. I think if nothing else, it would make us look twice before we’re just upping this (debt) limit.”

Mesnard said the bill, HB2457, takes a “convention approach” that attempts to assuage fears of a runaway convention. The language of the bill has been pulled directly from one of the model policies on ALEC’s website.

“ALEC definitely has had members more recently move in the direction of this state-oriented solution,” Mesnard said. “(The national debt) is not sustainable, no one thinks it is. But unfortunately at the same time, no one seems to have the willpower to do something about it.”

Arizona lawmakers sponsored other interstate compact legislation this session, including a bill that would expedite cross-state medical licensing, another that would allow psychologists to circumvent state licensing procedure to remotely practice in other states, and one bill that would add Arizona to an interstate agreement to elect the U.S. President and Vice President by national popular vote.

Model legislation transparency means greater lobbying disclosure

After nearly 30 on-and-off years in the Arizona Legislature, outgoing Rep. Debbie McCune Davis, D-Phoenix, said she believes legislators are increasingly being drawn into national policymaking through model legislation.

McCune Davis, along with nearly every source AZCIR interviewed, cited a confluence of factors that make Arizona especially ripe for model bills. Those same factors also give more influence to the lobbyists who fight for them.

Bills receive less scrutiny because Arizona has small legislative staffs and lawmakers only serve part time, McCune Davis and others said. Alternatively, lobbyists who are paid to argue for and against bills end up becoming de facto policy experts that the lawmakers look to for advice.

Because of term limits, lawmakers come and go every few years, whereas lobbyists sometimes work at the Capitol for decades, giving them greater institutional knowledge of the Legislature, how it works, and how to get bills turned into laws.

Arizona lawmakers are paid $24,500 annually—a lower salary relative to many other legislatures—giving import to the hundreds of thousands of dollars lobbyist spend on a dinner, lunch, coffee or travel each year. During the past several legislative sessions, lawmakers were paid roughly $3 in salary for every $1 spent by lobbyists at the Capitol.

And because lobbyists contribute heavily to campaigns, bundle contributions and organize political fundraising efforts, they have better access to lawmakers.

Emily Shaw of Sunlight Foundation said one way to provide greater transparency about model legislation is increased lobbying disclosure.

In Arizona, lobbyists are required to disclose the money they spend in the course of advocating or against for legislation. And they’re required to disclose who’s paying them to lobby. But they’re not required to disclose which bills they’re batting for.

“The effort to identify model legislation reflects a failure to capture this information through lobbying disclosure,” Shaw said.

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May 2016