Another Swing and Miss from The Guardian in Desperate ALEC Smear

A recently published smear piece by Chris McGeal in The Guardian took aim at a failed draft model policy from 2020, claiming it sought goals of “complete immunity” for defendants in public nuisance actions. Falling far from the truth, the article exposed an astounding lack of comprehension skills and a fundamental ignorance about ALEC and its role in the public policy domain.

ALEC is a non-profit, non-partisan, membership organization comprised of private organizations and state legislators. It is a hub of trusted policy solutions, designed to assist any state legislator or organization interested in learning more about policy matters, participating in policy reform conversations, and collectively developing model legislation.

It’s important to note that ALEC model policies are not staff-produced. They are created through a unique, democratic process — quite similar to the legislative process in every statehouse across the country.

Here’s how it works:

1. A state legislator (exclusively) submits a draft model policy to ALEC for consideration.
2. The draft model policy is assigned to the appropriate ALEC Task Force and posted to our website for members to review.
3. Presentations and discussions on the draft model policy are held in several forums by members of the relevant Task Force.
4. Subcommittee meetings are held to serve as “mark-up” hearings, where further discussion ensues and amendments may be proposed.
5. The Task Force convenes to formally present the draft model policy, hold discussion, debate, and to conduct the final votes on amendments and the final form of the draft model policy.
6. Two separate votes are taken in a bicameral manner: one for legislators and one for the private sector. Both must yield a majority vote for the draft model policy to pass the Task Force.
7. If it receives Task Force approval, the draft model policy is submitted to ALEC’s Board of Directors, a body comprised exclusively of state legislators, for final approval.
8. Upon approval by the Board of Directors, the draft model policy becomes an official ALEC model policy. Drafts that do not survive this process are removed from the ALEC website.

The purpose of the ALEC model policy process is to bring multiple experts and perspectives together to foster robust policy discussion and ideas. It is extremely common for staff at think tanks, unions, and other organizations to develop model legislation according to their organization’s principles and values. ALEC, on the other hand, utilizes a unique and collaborative process to develop model policy that puts state legislators at the helm, in accordance with our shared principles of limited government, free markets, and federalism.

The draft model policy mentioned in this smear article is the “Public Nuisance Reform Act.” It is not official ALEC model policy because it failed to receive a majority vote from ALEC’s Civil Justice Task Force. The draft did not make it to the ALEC Board for a chance at final approval. Once the draft failed, it was removed from the ALEC website — which is why The Guardian resorted to the Wayback Machine to find an archived draft version of the model policy. The Guardian falsely presented this archived draft as an official policy position of ALEC and did not reach out to us for comment or clarification.

The draft “Public Nuisance Reform Act” proposed reforms to public nuisance suits, however, none of its language resembled anything near “complete immunity” for potential defendants. What it did include were limitations on bringing public nuisance actions regarding lawful activities expressly authorized by the controlling government, requirements of clear and convincing evidence to prove the tort, and a provision that plaintiffs can receive compensatory damages for special injuries.

So why did the legislative sponsor of this model policy advocate for these reforms? Most likely to curb the drastic abuses of public nuisance actions seen throughout the states. Like tools in a toolset, causes of action should be utilized for the appropriate tort in the appropriate context. Public nuisance lawsuits are not necessary to address many of the issues they have been applied to, even if the defendant may in fact be liable for something else. Instead, they have become a “catch-all” for plaintiff lawyers seeking large payouts from companies, because they may not have a strong enough case to recover under the appropriate cause of action.

ALEC has worked on tort reform for decades.  Members have sought to minimize frivolous and unfounded litigation to improve the American judicial system. ALEC members overwhelmingly believe in accountability for bad or negligent actors. But just as each individual is entitled to file suit in the pursuit of justice, defendants are also entitled to fair trials and procedure. The ethos from which our justice system is founded demands it.

To any reporter still reading, don’t be like The Guardian’s Chris McGeal. Reach out to us, and we’ll help you separate myth from fact.