ALEC, Corporate-Funded Bill Mill, Considers Model State Bill Cracking Down on Pipeline Protesters

Protesters march with a banner against the Dakota Access pipeline

At its recent States & Nation Policy Summit, the American Legislative Exchange Council (ALEC), a group that connects state legislators with corporations and creates templates for state legislation, voted on a model bill calling for the crack down and potential criminalization of those protesting U.S. oil and gas pipeline infrastructure.

Dubbed the Critical Infrastructure Protection Act, the model legislation states in its preamble that it draws inspiration from two bills passed in the Oklahoma Legislature in 2017. Those bills, House Bill 1123 and House Bill 2128, offered both criminal and civil penalties which would apply to protests happening at pipeline sites. Critics viewed these bills as an outgrowth of the heavy-handed law enforcement reaction to protests of the Dakota Access pipeline.

At the time the bills were still under proposal, the Oklahoma American Civil Liberties Union (ACLU) criticized them, saying they had the potential to quash free speech and the right to assemble as protected by the First Amendment.

The First Amendment protects our right to stand in the Capitol rotunda,” Ryan Kiesel, executive director of the Oklahoma ACLUtold the Oklahoma Gazette in March. “It also protects the rights of Oklahomans and Americans to engage in speech and activity, knowing that if they engage in civil disobedience, that the penalties they face should not be disproportionate. If we chill and keep people home, away from the cameras and away from the public they are trying to wake up on any number of issues, we are doing a real disservice to our democracy.”

Alyssa Hackbarth, a spokesperson for ALEC, did not respond to multiple requests for comment clarifying whether the model bill actually passed through the Energy, Environment and Agriculture Task Force. Officials working for the Task Force also did not respond to a request for comment. ALEC's website still lists the bill as a draft proposal introduced on December 7.

Hackbarth formerly worked as a research assistant for Off the Record Strategies, one of the public relations firms hired by the National Sheriffs' Association during the protests against the Dakota Access pipeline in North Dakota. In a set of Off the Record Strategies talking points obtained by DeSmog via open records law, the firm compared anti-pipeline protesters to violent “anarchists” and “Palestinian activists” who possessed “guns, knives, etc.”

Off the Record was founded and is run by Mark Pfeifle, who worked for the George W. Bush administration on its communications strategies to garner public support for the wars in Iraq and Afghanistan.

ALEC's Energy, Environment and Agriculture Task Force is now run by recent hire Grant Kidwell, who previously worked as a senior policy analyst for Americans for Prosperity, the lobbying, advocacy, and electioneering group funded and founded by money from the Koch Family Foundations and Koch Industries. Kidwell also formerly worked as a policy analyst for the Charles Koch Institute and attended graduate school at George Mason University, a key intellectual laboratory for Koch-funded economic and regulatory ideology.

Model vs. Original Bills

The ALEC model bill combines the two pieces of Oklahoma legislation by breaking them up into separate sections, one for criminal penalties and another for civil penalties. 

Oklahoma's HB 1123 calls for citizens to receive a felony sentencing, $100,000 fine, and/or 10 years in prison if their actions “willfully damage, destroy, vandalize, deface, or tamper with equipment in a critical infrastructure facility.”

The ALEC model bill, by comparison, calls for those who “willfully trespass or enter property containing a critical infrastructure facility without permission by the owner of the property or lawful occupant thereof shall, upon conviction, be guilty of a misdemeanor punishable by a fine of not less than {dollar figure}, or by imprisonment in the county jail for a term of {length of time}, or by both such fine and imprisonment.”

HB 2128, the Oklahoma bill which uses the civil law system to crack down on protests of “critical infrastructure” like pipelines, allows for the civil law system in Oklahoma to dole out additional financial penalties to losers of lawsuits brought under the auspices of this legislation.

A person who is arrested or convicted of trespass may be held liable for any damages to personal or real property while trespassing,” reads that bill. “A person or entity that compensates or remunerates a person for trespassing as described in subsection A of this section, may also be held vicariously liable for any damages to personal or real property committed by the person compensated or remunerated for trespassing.”

ALEC's model bill, meanwhile, mandates more concisely that “Any person who is arrested for or convicted of trespass may be held liable for any damages to personal or real property while trespassing.”

Model bills for ALEC are voted on behind closed doors, in which its dues-paying members — corporate lobbyists and state legislators, generally of the Republican Party variety — receive an equal voice and vote. ALEC itself is heavily funded by corporations, who become members with the ability to deploy lobbyists to ALEC annual meetings. 

Oklahoma-based oil and gas companies Chesapeake Energy and Continental Resources — the latter of which has its oil pumping through Dakota Access — are both ALEC members. Continental Resources founder and CEO Harold Hamm served as an energy adviser for Donald Trump's 2016 presidential campaign.

Anti-Protest Bills Nationwide

Even before the ALEC model bill's introduction, dozens of anti-protest bills were introduced in statehouses nationwide in 2017.

While all of the bills mandated different things, with some more similar than others, what they share in common are the implications for what First Amendment proponents call a threat to free speech and freedom of assembly. Including Oklahoma, the bills have passed in four states.

Among the other states which saw bills pass was North Dakota, the epicenter of the uprising against the Dakota Access pipeline. North Dakota's legislation included increased criminal penalties for “riot” offenses and additional criminal punishment for wearing a mask while committing a crime.

The ACLU, which created a map tracking where various anti-protest bills were introduced and their status, sees this trend as a threat to essential democratic rights enshrined in the First Amendment.

“Is this spate of anti-protest bills a coincidence? We think not,” wrote the ACLU in a blog post. “State representatives around the country should be celebrating the fact that their constituents are getting out into the streets and making their voices heard. Instead, state representatives are … proposing bill after bill that would criminalize protest or even put the lives of protesters in danger.”

After these bills appeared in various statehouses, David Kaye, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and Maina Kiai, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, came out in opposition to such legislation. The two pointed to the Oklahoma bill as particularly problematic.

“We are concerned this Bill would target peaceful protests in certain contexts, such as protests which focus on environmental rights, imposing disproportionate penalties on protesters,” wrote Kaye and Kiai. “We are even more concerned that the Bill reportedly was prompted by the Dakota Access pipeline protests in North Dakota.”

If the ALEC model bill draft proposal does indeed become an official model, the template will be distributed to legislators in statehouses across the country. Put another way, what happens in Oklahoma won't necessarily stay in Oklahoma in 2018.

Main image: Dakota Access pipeline protesters against Donald Trump. Credit: Fibonacci BlueCC BY 2.0