November 21, 2003

Lessons from Oregon's Open Source bill

Author: Ken Barber

On March 5, Oregon became the first state in U.S. history to
formally consider legislation relating to government acquisition
of Open Source software.  Within two weeks a similar bill was
introduced into the Texas state legislature. Microsoft-funded lobbyists descended in swarms upon both capitols to destroy the proposals.
Anyone interested in working for Open Source-related legislation
elsewhere would do well to study what happened.

A brief overview of the process

State laws in the U.S. begin when a legislator introduces a bill,
which is assigned a number and is sent to a committee for
examination.  After holding one or more hearings the committee
decides whether to send the bill to the floor of its respective
chamber (i.e., House of Representatives or Senate) for a vote.  If the bill passes
the floor vote, it then moves to the other chamber where it is
again assigned to a committee and must undergo the same process
it endured in the first chamber.  Only a tiny handful of bills
make it through this process; those that survive it go to the
state governor for final approval (or a veto).  

It's a good process on
the surface, but is easily subverted by powerful interests.

The leaders of every legislature in the U.S. (i.e., the Speaker of
the House or the Senate President) are chosen along party lines
and are incredibly powerful individuals.  They alone choose who
will chair each of the various committees that work on the bills.  
Hand-picked by party bosses for their obedience (lest they be
relieved of their position), these committee chairs are also
powerful individuals.  They can kill a bill simply by neglecting
to schedule a hearing for it, and indeed this is the way most
bills die.

Every legislator and lobbyist knows this, and in the end few bills
are ever considered on their merits; they usually get a hearing
because the committee chair either likes the bill or needs a
favor from some other committee.  A
lobbyist representing a large bloc of voters (or a large campaign
donation) can also have a huge influence over which bills will
get a hearing and which will be shut out into the cold to die.

If you choose to lobby for a bill you will not be in a game with nice people who play
by the rules.  The game was rigged before you ever got to the
table; and just as a Smith & Wesson beats any hand, your
adversaries have no qualms about using force and raw power to
trump you.  Neither do they care about the costs to society of
the corruption they're bringing to the process.  They have no
intention of playing fairly.  Get used to it.

In the end, the process is mostly about power and the money that
buys power.  Complain if you want, but to be effective you
have to learn how to deal with that reality.  Understand
that if you get involved you could become somewhat of a cynic.

Winning against a stacked deck

It is not realistic to expect a new idea to pass the first time it
is proposed.  The best you can expect is to get a committee
hearing.  Since only a tiny fraction of bills get that far, this
is considered a major accomplishment by itself.  You
will find that the press (which never had time to talk with you
before) is suddenly interested the moment your bill is scheduled
for a hearing.

Getting to a hearing requires two things:  a legislator to introduce
the bill in the first place and a strategy for shepherding it
through the roadblocks that stand in your way.

Since most of politics is about connections, getting to know a lot
of politicians is probably the most important part of the whole
process.  If you don't know any, the best place to start is with
the ones who represent you at your state capital.  There will be
two of them:  one in the Senate and one in what in most states
is called the Assembly or the House.  The author of Texas's open
source bill simply contacted his own State Senator and asked him
to introduce it.

In writing the bill, get help from some recognized experts. I wish to acknowledge a few people who helped me write Oregon's HB 2892:  
Walt Pennington (author of a proposal in California that was
never introduced), Jeremy Hogan of Red Hat Corporation, and Bruce
Perens of the Open Source Initiative (OSI).  Larry Rosen of the
OSI also contributed valuable advice after the fact.  While
history may credit me as the bill's author, in the end it is
actually a special attorney's office known as Legislative Counsel
that writes the final drafts.  They can take a few days or a few
weeks to convert your proposal to formal legal language.  During this time, an
effective legislator will quietly talk to colleagues to see whom
he can count on for support.

The importance of stealth

A good legislative campaign is a lot like a mushroom:  most of it
exists underground, out of the public eye.  When it finally
appears, it does so with very little warning -- and in many cases
is quickly tromped in disgust by someone who doesn't like it!  

When planning to introduce Open Source legislation in your state,
it is important to remember that stealth is essential.  As soon
as your opponents learn that such a bill is coming they
will pay a visit to the chair and the members of the committee
that will receive the bill, attempting to persuade them not to
schedule a hearing.  If they are successful, your bill will have
about the same fate -- and lifespan -- of most mushrooms.

So don't tip your hand.  The bill will become public knowledge the
day it is introduced; there is no need for your opponents to know
about it before then.  The legislator who introduces your bill
should have a pretty good idea which committee will get it.
It's a good idea to visit the chair and members of that committee
ahead of time and mention "a bill that I'm working on with Sen.
or Rep. so-and-so."

In the case of HB 2892, this saved our bill's neck.  By the time
Microsoft heard about the bill and sent someone to talk to the
committee chair about it, he was already in favor of it and
flat-out told them "This bill is going to get a hearing."  We had
also lined up about half of the committee members in support.

This is the way successful legislation gets passed.  Experienced
lobbyists will tell you (if you know any well enough to get them to confide
this) that most committee hearings are nothing more than a show;
by the time a bill gets to a hearing most members have already
made up their minds, and in some cases even the floor votes have
been counted!

Our opponents were, of course, very experienced and had a
considerable amount of campaign cash to spread around.  I think
we surprised them when they found out how well we had prepared.
But as I already mentioned, Microsoft's lobbyists do not play by
the rules.  A few years ago in Maryland they got UCITA
legislation pushed through by convincing the House Speaker (after
making sizable donations) to send the bill to a committee of
their choosing.  

They saw that they were losing the battle in Oregon.  We had done
our homework well:  before the committee vote an insider assured
us that the bill was "greased" and we knew that it would pass the
floor vote.  Then Jim Craven of the American Electronics
Association, a lobby representing $400,000 in campaign donations,
showed up in the office of Speaker of the House Karen Minnis and
ordered her to "make this bill go away."  And two hours before
the committee was to vote the bill out to the floor, the
committee chair obediently pulled the bill.  

Speaker Minnis took a huge amount of heat in the local press for
this, and it is expected to become an issue in her re-election
campaign next year.  

Remember that in the end it's all about
power and the money that buys it.  If you want to win you
have to learn how to wield power, and there's nothing more
powerful than bringing down a politician who ignored the needs of
the people in exchange for campaign cash.

Ken Barber been a computer tech for about 20 years, starting out as
a programmer, then moving to desktop support and finally to
network administration. He teaches Linux system administration at a local community college.

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