The State of South Dakota is currently embroiled in a lawsuit in which its defense relies crucially on the contention that the state has a compelling interest in protecting its “democratic self-government” from “out-of-state infiltration.”
The State of South Dakota apparently feels to compulsion to prevent the Legislative process from out-of-state infiltration by bills like the Asbestos Transparency Act, one of many corporate copycat laws identified in a big investigative report produced by the Arizona Republic, USA Today, and the Center for Public Integrity.
Let’s start with the Asbestos Transparency Act, written by ALEC to save national insurers money:
…the bill had nothing to do with requiring companies to disclose to consumers what products contained asbestos or informing those who had been exposed to the cancer-causing mineral how to get help.
It, in effect, cast corporations as victims of litigation filed by people harmed by asbestos. The model bill requires people battling the asbestos-triggered disease mesothelioma to seek money from an asbestos trust, set up to compensate victims, before they can sue a company whose product might have caused their cancer.
That process can take months or even a year.
…The model legislation was the work of corporations seeking to limit their exposure to billions of dollars in litigation associated with asbestos. Insurance companies Nationwide, AIG, Travelers, Hartford and CNA Financial Corp. together hold more than half the nation’s asbestos claim exposure totaling over $870 million.
USA TODAY/Arizona Republic found the Asbestos Transparency Act, a product of the American Legislative Exchange Council, an industry-supported model bill factory, has been introduced in at least 17 states since 2012. It became law in at least 11 states [Rob O’Dell and Nick Penzenstadler, “You Elected Them to WRite New Laws. They’re Letting Corporations Do It Instead,” Arizona Republic/USA Today/Center for Public Integrity, 2019.04.04].
ALEC has sent a Washington, D.C., lawyer around the country to testify for this corporate cloak:
One of those experts was Mark Behrens, who logs thousands of miles a year testifying before lawmakers about ALEC’s model asbestos legislation. He has done so in at least 13 states, where he was billed as an objective authority.
Behrens is an attorney with Shook, Hardy and Bacon, which represents companies in complex civil litigation. He is a co-chairman of ALEC’s Civil Justice Task Force and is a paid consultant for the U.S. Chamber’s Institute for Legal Reform, an arm of the nation’s largest business lobby, which has the stated goal of reducing litigation [O’Dell and Penzenstadler, 2019.04.04].
Behrens led proponent testimony on 2017 Senate Bill 138, the South Dakota copy of this ALEC bill, before Senate Judiciary on February 9, 2017, then returned to make sure House Commerce and Energy did ALEC’s bidding on March 6, 2017.
The prime sponsor of 2017 SB 138 was frequent ALEC flyer Senator Jim Stalzer. But to show the depth of the corporate rot in our Legislature, ALEC got Democratic Representative and insurance salesman Spencer Hawley to be lead sponsor on the House side. Right behind Hawley on the sponsor list was Representative Don Haggar, who shortly after voting for 2017 SB 138 quit the Legislature to work for the Koch brothers, whose Koch Industries now enjoys significant protection from asbestos-related lawsuits thanks to the passage of this copycat legislation around the country. (Bonus: the grateful Koch brothers also gave Don’s daughter Senator Jenna Haggar Netherton a job that induced her to quit the Legislature last year after casting her Koch-line votes.)
That Sioux Falls paper dug through the data (which the Center for Public Integrity says is still being complied and is being kept within the USA Today network for now) and found 60 mirror model bills written by out-of-state sources and introduced between 2010 and 2018. The Legislature has passed 55% of them. They added at least one more this year, 2019 HB 1087, the fake “intellectual diversity” bill, which originated with ALEC:
The South Dakota Legislature’s intellectual diversity bill this year was a slimmed down version of last year’s bill, and the final version that passed was an even more condensed version that represented a compromise between legislators and the Board of Regents, but it still contained four sections of text nearly identical to ALEC’s model bill [Lisa Kaczke, “Special Interests Have Written Dozens of South Dakota Bills and Laws in the Last Decade,” that Sioux Falls paper, updated 2019.04.05].
If the state has any interest in clamping down on out-of-state influence in our politics, it needs to turn to the enormous influence ALEC and other far-off corporate interests have in writing and passing special-interest bills in Pierre.