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Lessons from Oregon's Open Source bill
From: Dave Farber <dave () farber net>
Date: Tue, 25 Nov 2003 14:46:41 -0500
Delivered-To: dfarber+ () ux13 sp cs cmu edu Date: Tue, 25 Nov 2003 13:27:30 -0500 From: Srini Ramakrishnan <cheeni () cmu edu> Subject: [For IP] Lessons from Oregon's Open Source bill To: David J Farber <dfarber () cmu edu> Organization: Carnegie Mellon University For IP if you wish: Lessons from Oregon's Open Source Bill http://www.newsforge.com/article.pl?sid=03/11/20/1628212 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. ------------------------------------- You are subscribed as interesting-people () lists elistx com To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
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- Lessons from Oregon's Open Source bill Dave Farber (Nov 25)