Linux Access in State and Local Government, Part IV

In this article, we look at the process of getting legislation passed at the state level of government. Against that backdrop, we explore how our efforts fared in supporting this year's open-source bills. Finally, we look at what proponents of Linux need to do to succeed in our objective of having governments adopt open-source standards.

The state legislative process appears consistent throughout the United States. A citizen can petition a member of the house and/or senate to introduce a bill if the issue addressed has merit. The First Amendment to the US Constitution established one's right to petition Congress. The Supreme Court expanded the right beyond the original wording.

In the electronic age, elected officials view the transmission of faxes or e-mail as petitioning. If different constituents send a letter of identical content, the receiving official views that as a petition. That occurrence may compel the member to assess/address the issue.

Other ways of initiating legislation exist. In the circumstances of open-source legislation, sponsors' constituents began by presenting a business case. For example, I presented an argument based on cost savings. My senator (Senator Carona of Texas) liked the idea and moved forward. According to Carona's senator's aide, I presented more research than was needed. Most lobbyists or special interests achieve results with far less information. Fortunately, Senator Carona knew about Linux and open-source software as a businessperson.

If you want to initiate legislation in your own state, keep in mind that your presentation helps in formulating their ideas. Present a compelling case. Let legislators take your idea and develop it further. They have to own the idea before they can successfully share it with other members.

Once the legislator develops the idea, he or she drafts the bill and files it with the secretary of state or equivalent functionary. Once filed, an official of the house or senate reads it to the assembled body for the first time. At this point, the official enters the reading into the official record and refers it to a committee. In the case of SB 1579, a bill to make the state of Texas consider OSS, the State Affairs Committee of the Senate received the bill. It remained dormant on the committee's agenda until the chairman announced a public hearing.

I didn't know it at the time, but the supposedly dormant bill drew immediate opposition from lobbyists. Other legislation may encounter opposition from a number of sources, such as other constituents, associations and special interest groups. SB 1579 became targeted by Microsoft. Members of the committee received visits from lobbyists and documents aimed at discrediting open-source software.

During the same period, Chip Rosenthal of EFF-Austin put SB 1579 on the group's agenda and their foundation endorsed it. For the next two months, Chip became the equivalent of an unpaid lobbyist. In most causes, he did the legwork of a typical lobbyist and a community supporter.

I also discovered that the senator had to make a number of requests before the committee would schedule a public hearing for the bill. Scheduling a hearing can be difficult. Being an influential and well-liked representative such as Senator Carona helps this process.

Many factors may have contributed to the committee's busy agenda. Many of us believe lobbyists got to at least the chairman of that committee; he was not present for the hearing. Fortunately, a hearing took place and no one present killed the bill.

At this point, proponents of a bill can begin the process of support. On its web site, the state publishes the names and contact information for the members of each committee. Receiving e-mails, faxes and letters from the public helps committee members recognize the bill's support in the community. Such support can outweigh the influence of lobbyists, as constituents are the ones who elect legislators.

We do not know how much support Oregon's similar open-source bill received at this particular stage. We do know that SB 1579's committee received little, if any community support. EFF-Austin (the Posse) did ask members of the Texas Open Source community to help. A copy of one of the appeals exists on the NTLUG archives. Considering the effort put forth by the Posse, one has to wonder what else we need to do to mobilize the Open Source community in these matters. Here's an excerpt:

Texas's bill received a public hearing and remained in committee. One has to give credit to the senator sponsoring the bill and the skill of EFF-Austin in staging support at the hearing.

The purposes of the committee hearing are to flush out the topic and provisions of a bill, obtain constituent input and listen to vested interests. Considering the associations registered as opposition, the people of the state had scant representation.

At this point, let's consider the rights of the people as defined by the First Amendment. The First Amendments reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The right of petition expanded as the result of a Supreme Court ruling in favor of an industry coalition in EASTERN R. CONF. v. NOERR MOTORS, 365 U.S. 127 (1961) 365 U.S. 127. The right of petition no longer lives in the confines of demanding “a redress of grievances”. It allows an exercise by the government of its powers in furthering the interest and prosperity of the petitioners and their views on politically litigious matters. Essentially, this allows people to petition Congress to initiate legislation to advance commercial interests.

This decision went against the lower court rulings, where the plaintiffs had demonstrated that railroad's business practices resulted in restraint of trade. This important decision opened the door for you and I to request legislation for open-source software. It also allowed a company like Microsoft to fund groups to support its interest, despite the fact that those interests do not necessarily benefit the interests of the citizens of Texas or any other state.

At the hearing, the opposition can testify against the bill. It sets the stage by lobbying against it in the first place. In Oregon, I can only guess what went on between the filing of bill and the hearing. Looking at the results, though, I think the lobbyists out-influenced the constituents.

One may wonder how the industry lobby of a monopolist represents interests of the people. I too can only question the logic of this supposition. In this particular legislative session, Texas cut funding for health and human services, while licensing fees continue to make their way to Redmond, Washington.

Neither Texas nor Oregon saw their bills make it to the next stage; call that a failure to influence our representatives. The failure began prior to the committee hearing and after the hearing. People familiar with legislative procedures call this stage the informal process. It begins after the public hearing and is where the smoke-filled room metaphor originated.

In Texas, a letter writing campaign could have forced SB 1579 out of the informal process and into a vote. Unfortunately, the bill did not have the attention of the members. As the session came to an end, the committee reduced the bill's priority.

In the normal course of legislation, a bill reaches the stage where it is voted on and moved out of committee. The committee looks at the testimony during the original hearing and considers the information gathered during the informal process. After discussion, they vote either to kill the bill or to recommend it to the general membership. Once it hits the floor of the membership, it receives a second reading where the members discuss the bill in open forum.

If we do our job, we get the community to go on a letter writing campaign aimed at the larger membership of the voting body. In the case of Texas, the senate membership would receive faxes, e-mails and letters. In Oregon, the community would inform the House membership.

As those faxes, e-mails and letters pile up in the office trays of the members, they pay attention. In the past, people have told me otherwise, but now I know each member's staff does watch those indicators carefully.

If it passes on the floor of the originating body, the bill then is sent to the other legislative body and goes through the same process. If amended, it goes to a conference committee. This is where the lobbying gets hot and heavy.

If the bill passes the second legislative body, it then goes to the governor for signing. If signed, it becomes law; a regulating body must promulgate it into practice. To this end, the regulatory body writes its interpretation of the law and begins enforcing it.

Conspiracy theorists of the world like the notion of smoke-filled rooms where politicians and wealthy barons of industry plan the destiny of working class Americans. Fortunately, the anti-tobacco movement succeeded, and smoke no longer fills those rooms. Some other grass root reforms also succeeded, as we did not see any politicians in smoke-filled rooms either.

Given the apathy I observed from the community, people truly must believe in the myth of smoke-filled rooms—the myth where no one makes a difference. The myth allows us to abdicate our responsibilities because, after all, our fate lies in someone else's hands.

If you believe that, I have a bridge in Brooklyn I'd like to sell you. Otherwise, I hope to see you next session.

Tom Adelstein works as a Linux consultant in Dallas, Texas. His current interest lies in the field of web services, security and supporting Linux deployments.