Protest repression and the new public/private Federalism

On July 13, Florida Gov. Ron DeSantis applauded Cuban-American protesters who proceeded to shut down the Palmetto Expressway in support of the protests in Cuba. But there was an element of irony in DeSantis’s endorsement — in April, he had signed into law a bill that “was expressly designed to dissuade protesters from vandalizing businesses, toppling monuments, or blocking highway traffic.

Florida’s law was a response to the Black Lives Matter protests that erupted across the nation following the killing of George Floyd. Among other things, the new law allowed drivers to run their cars into protesters who were blocking streets.

DeSantos did not invent this innovation in protest policing. Between 2017 and 2021, a number of states considered or passed bills that would award civil immunity to drivers who ran their cars into protesters. These states were following a trend in protest repression that began with a number of “police protection” bills after the beginning of the Black Lives Matter movement, and then with 150 anti-protest bills, beginning in North Dakota in early 2017, after a group of Standing Rock Indians and their supporters protested the plan to run a pipeline through the tribe’s sacred lands.

North Dakota is a long way from South Florida, and the Dakota Access protest was very different than the Cuban American protests in Miami in July. What connects them? Chan Suh and I recently collected data on 48 “police protection” bills and on 150 anti-protest bills considered or passed by state legislatures from 2016 to the end of 2020. These bills ranged from some that merely underscored existing laws to others that supported the suppression of protest symbolically; still others introduced new penalties for existing offenses, and a few would violate the First Amendment.

How did so many similar bills come to be considered in so many state legislatures in so short a time?

Following the literature on protest policing, we first guessed that the degree of “threat” of protest would lead to efforts to suppress protesters. It did not. We then considered the partisan coloration of the legislature and found that Republican control was the strongest predictor of a legislature considering or passing protest-suppressing bills.

But there remains the question of how so many bills could have been brought up in legislatures around the country over such a brief timespan, and this takes me to the most important innovation in American federalism in decades: the construction of webs of private actors linked to state legislators.

The trend appears to have begun in the early teens, when a number of states passed model “ag-gag” bills designed to punish whistle-blowers who had entered factory farms to expose abuses of animals. This was followed by the “police protection bills” and then by a number of “pipeline protection bills” that followed the Standing Rock protests in North Dakota.

These bills were remarkably similar and showed signs of having been drafted by a single source.

Soon after Standing Rock, the Oklahoma legislature passed two laws imposing criminal and civil penalties for trespassing on property containing “critical infrastructure.” The language of the Oklahoma bills soon appeared in a model “Critical Infrastructure Protection Act” circulated by the American Legislative Exchange Council (ALEC), a national advocacy organization that reflects the views of conservative business groups. The introduction of nearly identical protest-suppressive legislation across the country in the wake of the Standing Rock protests was partly the result of media diffusion, but more directly the efforts of inter-state organizations like ALEC.

ALEC has been around since 1973, when it was founded by a conservative caucus of state legislators. But unlike “inside the beltway” organizations like the Heritage Foundation, ALEC brings corporate funders together with state legislators in “task forces” that prepare and diffuse the organization’s model bills.

The production of ALEC’s model bills — which range in topic from education, to the environment, to gun control, and to the reduction of labor rights — has increased enormously over the last decade. And although it continues its close ties with big business, ALEC has been increasingly attracted to “culture issues” (e.g., immigration), and voter suppression bills, especially since the 2020 election. ALEC has even pushed for policies aimed at constraining governors and public health agencies from implementing anti-COVID measures.

I imagine the people who fund ALEC would have preferred the organization to stay quietly under the radar, but given its strategy of diffusing policies through state legislatures, this has proven impossible. An anti-ALEC “hit squad,” ALEC Exposed, tries to document ALEC’s every move. But “exposing ALEC” is not the object of this article; rather, I am interested in the phenomenon that ALEC represents: the creation and expansion of cross-state private networks that work to amplify and distribute policies that its funders support.

Of course, spending money to influence state policies goes back to the Gilded Age, at least. But this is different: It is an extension of the “partisan federalism” that Jessica Bulman-Pozen diagnosed in an important article in 2014 in which she argued that states check the federal government by channeling partisan conflict through federalism’s institutional framework.

But Bulman-Pozen’s article sidestepped what Daniel Schlozman and Sam Rosenfeld call “the hollowing out of party organizations.” Their work shows that parties no longer serve as the connective tissue between local instances of participation and their national organizations. Instead, private networks of activists and advocacy organizations have filled the gap that the parties have abandoned in influencing state legislatures. As Jacob Grumbach concludes:

“Whereas Madison thought that federalism would incentivize state governments to customize policy to local preferences, the state level is increasingly dominated by national groups who exploit the low-information environments of amateur legislators, inattentive local media, and ideology-focused voters.”

As attention since Jan. 6 has focused on the visible dangers to American democracy of a rightwing insurgency, we are missing a slow, insistent insertion of private networks of policy demanders between Washington and the states. That cannot be good for America’s democracy, and it is certainly not good for the civil liberties of its citizens.

Sidney Tarrow is Emeritus Professor of Government at Cornell University and an adjunct professor at the Cornell Law School. His most recent book is “Movements and Parties: Critical Connections in American Political Development,” forthcoming from Cambridge University Press.