CORP PERSON 2 28TH
see main node 28th corp personhood for older content
see corp person LEGAL 3
merri ok
format messed up 7/20
new tag 28
good ppl oppose thus RED
evil support purple
capt 819
messed up bottom capt 3/18
see nature rights person
i am including some overturn CU, mebbe disambig?
tool:
https://www.sourcewatch.org/index.php/Portal:Corporate_Rights
// pfaw 2014
http://united4thepeople.org/resources/
6/6/19 People For the American Way PFAW Cheers New Hampshire for Becoming 20th State Urging an Amendment to Overturn Citizens United
===
essay was originally published in The Atlantic on Aug. 28, 2022 and can be accessed online here.
We Can Be Framers Too
*The Constitution doesn’t have to be something we merely inherit; it could be something we can change ourselves—starting with rewriting the too-stringent rules for making such changes.
The recent set of watershed Supreme Court opinions pulsates with the language of democratic accountability. Dobbs v. Jackson, overruling Roe v. Wade, makes its refrain the promise to “return” the abortion question “to the people and their elected representatives.” Concurring in West Virginia v. EPA, which restricts regulators’ ability to decarbonize the electricity grid, Justice Neil Gorsuch explained that the point of the decision was to keep power in the hands of “the people’s representatives” rather than “a ruling class of largely unaccountable ‘ministers.’”
In New York State Rifle and Pistol Association v. Bruen, which struck down New York State’s 117-year-old limitation on carrying weapons, Justice Clarence Thomas presented the Court’s severe, originalist approach to the Second Amendment as a vindication of a judgment “by the people” against wishy-washy federal judges who had let the restriction stand. Indeed, while these opinions have little in common besides their conservative outcomes—Dobbs eliminated a personal right, Bruen expanded a right, and West Virginia curtailed agency interpretations of statutes such as the Clean Air Act—they all claim to protect the rightful power of “the people.”
Liberal critics, in turn, have appealed to democracy in attacking the Court as “radical” and “illegitimate.” Majorities tend to support abortion rights, climate action, and gun control, they point out, so whatever mythic “people” the justices have in mind, they are going against those people as they actually exist today. Calls to add justices to the Court, deny it jurisdiction over certain cases, or even impeach some conservative justices all come in the name of greater democratic control. Some progressives hope to get back to a more democratic Constitution, whether it is in the spirit of the reformist Warren Court of the 1950s and ’60s (the Court that gave us Brown v. Board of Education and the one-person-one-vote principle); the New Deal vision of a “second bill of rights,” including rights to good work and economic security; or even an “abolition constitution” rooted in radical traditions of freedom and equality.
But the Constitution is too fundamentally antidemocratic a document to serve democratic purposes reliably. If we want to make it genuinely and lastingly democratic, we will first have to consider changing it in the most basic way: by amending Article V, which governs amendments and so serves as the gatekeeper for living generations to say what they—we—believe American fundamental law should be. This would be a way of empowering ourselves to become founders, over and over, and not just inheritors.
The feeling that the Court is dangerously abusing its power is a new experience for many of today’s liberals (not so for conservatives, who denounced the Court for decades before finally taking it over), but it is just the latest episode of a long-standing dynamic that we might call the Iron Law of Judicial Oligarchy. Because the Constitution establishes fundamental law and is itself hard to amend, judicial interpretation is always a key lever of power in American politics. Because power attracts agendas, various constituencies are always crowding around the Court. Before the Civil War, the justices upheld the prerogatives of slaveholders and the interests of the white oligarchies in the slave states, forming a key part of Southern Democrats’ grip on national power.
That’s why, in his first inaugural address, Abraham Lincoln warned that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.” From the 1880s through the 1930s, the Court protected capitalist interests from populists, unions, and other radicals, striking down labor regulations, an income tax, and other forward-thinking policies. Progressives rallied against it. In 1912, Teddy Roosevelt promised to “put the fear of God into judges” who had struck down labor legislation. In 1924, the great reformist senator Robert La Follette of Wisconsin proposed a constitutional amendment authorizing Congress to override Supreme Court decisions that invalidated federal laws—a proposal whose insurrectionary spirit future Justice Felix Frankfurter praised in The New Republic, lamenting of the pro-business jurisprudence of his time, “we have never had a more irresponsible Supreme Court.”
What has been unusual in the past 70 years—that is, all of living memory—is that the Court has been mostly seen as, on balance, a liberal institution, partly on the strength of now long-past desegregation and voting-rights cases, partly because of high-profile LGBTQ-rights cases in more recent decades. That progressive reputation has been largely misplaced for a while. The Court has been expanding protection for big money in politics since 1976, with dramatic developments since Citizens United in 2010. It cut the legs from under the Affordable Care Act’s Medicaid expansion in 2012 and from Voting Rights Act enforcement in 2013. It announced a personal right to bear arms outside militia service in 2008. But the term that ended in June 2022 sounded a trumpet blast that no one could ignore. The Court is now seen for what it is: a node of conservative power in American government that will persist for years, regardless of elections and popular opinion.
The flip side of the Iron Law of Judicial Oligarchy is a recurrent populist counterblast to the Court’s power, which denies the Court’s legitimacy in the name of democracy. Who are these old, politically connected lawyers to tell us what our fundamental law is? Who do they think they are (as Justice John Roberts asked in dissent in Obergefell v. Hodges, the 2015 case establishing a right to same-sex marriage)? Progressives asked the same question when the Court was striking down labor laws a century ago. Today’s liberals belong to a party, and often to movements, in which elite lawyers have long been overrepresented, and going to court has tended to be the first response to any new political conflict. They are rediscovering that the Court is an oligarchic institution and trying to remember how to be its populist critics. This is a change in worldview, even in identity, for people who have spent their lives regarding the Court as the bulwark of constitutional legitimacy, even against decades of growing counterexamples.
The Constitution produces judicial oligarchy (and inspires populist backlash) through several of its features: federal judges’ life tenure, their nomination by the president (twice in this century elected by someone who won the Electoral College but lost the national popular vote—something that would have happened again in 2020 with a switch of fewer than 50,000 votes), and their confirmation by the Senate (whose Republican majority during Donald Trump’s presidency represented significantly less than half of the country’s population).
But the root of judicial oligarchy is that the Constitution is almost impossible to change. Article V requires that amendments be ratified by three-quarters of the states, either through the state legislatures or in special conventions. (The convention route has happened only once, when the Twenty-First Amendment repealed Prohibition in 1933.) The upshot is that it takes only 13 states to block a proposed amendment. And to send an amendment to the states in the first place, the proposed language must be approved by a two-thirds vote of both houses of Congress.
There is an alternative route, in which two-thirds of state legislatures call on Congress to establish a special convention, which then proposes language to the states; this has never happened. With these hurdles in place, it’s no wonder that no meaningful amendment has been ratified in 50 years, nor that the fundamental changes in constitutional law for the past century—upholding the New Deal, pressing desegregation and voting rights, embracing and then rejecting abortion rights, protecting money in politics, establishing a personal right to bear arms—have all come through judicial interpretation of the Constitution, not democratic decisions to update the Constitution itself.
It may be hard to see the judicial monopoly on constitutional change (and, by the same token, on constitutional stasis) as the problem with the Constitution, because we are so accustomed to it. How else could a constitution work? But there is an answer right on the face of our Constitution, which opens with the words “We the People.” That “we” is the subject of the first sentence of the Constitution, and it goes on to “ordain and establish” everything that follows. On its own terms, it is law because “we” made it law.
But that “we” isn’t us. When that language was ratified in 1789, its “we” was all male, nearly all white, and mostly restricted to property holders. Every one of its members lived in an 18th-century agrarian republic and died a very long time ago. Even the Fourteenth Amendment, the basis of many modern constitutional rights, was ratified in 1868 by male citizens of a patriarchal country that had just abolished formal slavery. Almost all of those men have been dead for a century or more.
As striking as the demographic differences are between who counted as “the people” in 1789 or 1868 versus today, the most fundamental problem is the tyranny of the past over the present. If today’s Americans could freely decide that the Second Amendment’s “right of the People to keep and bear arms” should remain our fundamental law today, it wouldn’t really matter that the language was, in a sense, proposed to us by members of a very different, long-ago society. The real scandal of the Constitution is that it gives the living people no real choice in the matter. Past generations dictate our fundamental law.
Indeed, even if those past political processes had been much more inclusive, they would still belong to the past. If we take seriously the democratic principle of ratification that the phrase “We the People” suggests, then nothing can make another generation’s fundamental law count as ours except our consenting to it. In American constitutional law, silence—the fact that we have not amended the Constitution—counts as consent. But because amending the Constitution is nearly impossible, our silence is compelled, then laundered into consent.
Plenty of efforts have been made to square this circle, but none has really worked. The justices of the Supreme Court interpret an old and rather brief Constitution, and they do so under constant pressure from talented lawyers to find new meanings in phrases such as equal protection of the laws, words like liberty, or the general pattern of authority that the Constitution creates among the states and the national government. No wonder so many of the justices’ opinions seem to come down to what W. E. B. Du Bois in Black Reconstruction impatiently called “incantation and abracadabra.”
At the moment, the most notorious abracadabra is originalism. The method of the Court’s recent gun-rights decisions, and deeply influential in its rejection of Roe (although Justice Samuel Alito presented his analysis inDobbsas more traditionalist than strictly originalist), it purports to anchor constitutional interpretation to the public meaning the words had when they were ratified. Originalism strikes its critics as ancestor worship—worse, the selective worship of some Americans’ white, property-holding, male ancestors. But as the late Justice Antonin Scalia often explained, the basic theory of originalism is that the Constitution changes only when the people mobilize to change it. The alternative, he warned, was that it would change whenever five justices changed their minds, which would put ultimate political power in the hands of the Court. Originalism makes what sense it does because it is a way of defining the justices’ power as compatible with democracy—at least notionally.
Due to its premise that legitimate constitutional change comes only from the people, originalism would be a pretty solid way to interpret a constitution that living majorities had meaningful power to change. Were the amendment process a lower hurdle, it really would make sense to say that if we haven’t made new fundamental law, that must show that we are content with the old law. But our Constitution is not that kind.
Because constitutional text is effectively closed to change, anti-originalist justices have felt justified in finding new constitutional meanings in the old language. After all, the world changes; who else but judges will change the Constitution accordingly? The passage of time brings new insights, former Justice Anthony Kennedy replied to Justice Scalia in Obergefell, and only expansive interpretation can bring those insights into the old text. Freedom and equality have very different meanings in our lives today than in 1868, when the Fourteenth Amendment was adopted. Why should the Constitution be stuck when the rest of us are moving on, using old words in new ways?
Each side can clearly see Du Bois’s abracadabra in the other. Each is partly right about the other’s democracy problem. Living constitutionalism is sincerely motivated, but its originalist critics are not wrong: It does amount to saying that, on key issues, “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” as Justice Scalia pungently put it. By the same token, with a frozen constitutional text, originalism can handcuff a diverse and changing country to old and unwelcome principles—a colonial-era right to bear arms, or, as Justice Thomas has proposed, a constitutional ban on most federal environmental law (ecology having been far from the Founders’ minds).
But even saying that originalism keeps us trapped in the past takes it too much on its own terms: What it does, rather, is carry us into the future in the way preferred by a handful of right-wing jurists. Its appeals to a certain kind of constitutional democracy do not make it any less a version of judicial oligarchy. Originalism is not conservative in the sense of preserving legal principle. Rather, it is radical: a recipe for uprooting key features of modern law, including (at least) labor and safety regulations as well as environmental law. And originalists have no special mind-meld with the founding generation or with constitutional principle. Like anyone else playing the judicial-review game, they decide questions of fundamental law through the votes of nine politically connected judges.
The real irony in originalism’s march to the heights of judicial power is that, under the banner of loyalty to law, history, and the prerogatives of democracy, originalists (and the rest of the conservative legal movement) pursued a strategy that showed just the opposite conviction: In an oligarchy, power belongs to those who choose and train the oligarchs. Over more than four decades, the Federalist Society has recruited, trained, and placed a right-wing legal elite in the country’s top institutions. It has done so because conservatives in the 1970s—the last decade when it was really possible to regard courts as vehicles of broad progressive reform—saw the legal profession as suffused with broadly liberal politics and jurisprudence. Legal liberals regarded their hegemony as the natural and proper state of the law. They recruited, trained, and placed their own legal elite, and thus provided the model for right-wing institution-building. The difference was that many liberals had grown complacent enough to forget that they were engaged in an ideological battle for control of oligarchic institutions. The conservative insurrectionaries did not forget.
Both originalism and living constitutionalism are versions of judicial oligarchy, fought out in battles for control of the courts. They cannot be anything else in a country with a frozen Constitution and partisan courts. The judicial opinions that the public reads are a kind of bookkeeping, documenting the balance of power. The Dobbsopinion had been written for years, in originalist dissents from abortion cases, in Federalist Society talks and journals. Justice Alito’s 79 pages, plus appendices, is how the Supreme Court writes “6–3.” That is six votes out of some 330 million Americans. But then again, Obergefellhad only five.
So do we need to line up with our preferred oligarchs and fight like hell for control of judicial seats? Quite understandably, this has been the progressive attitude. It has the virtue of pragmatism. But it has the vice of accepting that we live under a basically undemocratic Constitution.
A more directly democratic approach would bring that pregnant phrase “We the People” back to life in the 21st century. This would mean amending Article V so that living generations could amend the Constitution and make a fundamental law that is actually our law.
The concrete results could be dramatic. Based on public-opinion polling, they might well include reinstating a baseline national abortion right, allowing for gun regulation that promotes public safety, and reauthorizing Congress and state legislatures to limit the campaign spending of corporations and wealthy individuals. Constitutional amendment could reform or eliminate the Electoral College, empowering national majorities to choose the president. It would be an opportunity to take on gerrymandering for House seats and the Senate’s two-seat-per-state structure—both major vehicles for minority rule.
There would be a more basic benefit too. A constitution makes democratic sense as a fundamental law, a limit on what legislatures and executives and even majorities of citizens can do with government power, if and only if those who live with it can consent to it when they wish, and change it otherwise. This was very clear to some of our Constitution’s Framers, such as James Wilson (also an early Supreme Court justice), who insisted that “the people” would be able to change the Constitution “whenever and however they please. This is a right of which no positive institution can ever deprive them.”
Although James Madison wrote that the Constitution he did so much to design was marked by “the total of exclusion of the people in their collective capacity” from any share in government—that is, our system boxes out direct democracy—he also held that the power “to alter or abolish its established government” always resided with the majority. (He justified the Constitution’s arcane amendment process by denying that the United States was a nation; he considered it a hybrid of a nation and a confederation—a position that far fewer citizens would find plausible today than in 1787.) To boil it down: Constitutional commitments have authority, as the Constitution’s first words indicate, because they are the people’s commitments.
It’s fine and good for judges to enforce these commitments and inevitably disagree about their meaning, as long as the people can give the final word. Originalism’s basic problem is that living generations have no real way of consenting to the old Constitution. Living constitutionalism’s basic problem is that living generations have no decisive way of stating what fundamental law they would prefer. Enhancing the democratic power to change or reaffirm the Constitution would solve both problems—and dissolve the need for both originalism and living constitutionalism as we know them.
How should we go about changing the Constitution, if we could? There is a lot of value in giving constitutional change a separate track from ordinary politics, so it does not become just another partisan football. Constitutional principles should come from the people in a different sense than laws, presidential elections, or midterms do. One way would be to hold a constitutional convention every generation, staffed by a blend of specially elected delegates, senior public officials, and, perhaps, citizens selected jury-style to represent everyday experience. The convention might proceed in two stages: state, local, or regional versions channeling their results and some of their personnel into a national convention. The convention would propose any constitutional changes its members endorsed, which would then go to a special national referendum. Offered, say, a proposal to reinstate Roe, authorize campaign-finance regulation, or rebalance the Senate, the people would speak via this process as a “we.”
Constitutional conventions have about the same odor in liberal circles as “citizen sheriffs” and the posse comitatus—cranky tricorne-hat stuff interesting only to the populist right. This impression gets a boost from the ongoing conservative effort to call a convention through state legislatures, with the goal of amending the Constitution to require a balanced budget, term limits for federal regulators, and perhaps some other right-wing goals. But nothing about constitutional revision is intrinsically conservative—quite the contrary—and if it seems cranky, that is only because liberals became too comfortable with the idea that the Constitution was basically democratic enough and that the courts were politically congenial. Those conceits are hard to sustain now.
The most basic reason for constitutional change is not partisan at all, despite the fact that the right benefits from a frozen, anti-majoritarian Constitution and liberals are currently angry at the Supreme Court. Re-creating a constitutional politics for living citizens would make democratic self-rule a reality for everyone. The highest civic compliment we could pay one another would be to prefer the results of deliberation and voting today to an old Constitution interpreted by a few judges.
Could it really happen? After all, we start out in the world of Article V’s high barrier to change.
The first thing to see is that it will never happen if we don’t think it will. Mass movements for constitutional change did succeed in the past, before all constitutional politics went to the courts. Mobilized citizens stripped the power to appoint senators from their state legislatures (and forced those same legislatures to ratify the change), authorized a federal income tax, granted women the vote, and, for better or worse, adopted and then repealed Prohibition.
Second, as noted, important constitutional Framers argued that the right to reform the Constitution belonged inalienably to the people. There is something to be said for an open, fully democratic effort to put a change to Article V directly onto a national ballot, to stand or fall with the choice of the living majority. Constitutional rules are important, and backroom or minoritarian coups are always illegitimate, but if a constitution is about letting a people set their own fundamental law, then the people should be able to act democratically in order to make a more democratic constitution.
What about the dangers of majority rule? Generations of Americans have learned that constitutional barriers protect us from the tyranny of the majority. Would a more democratic Constitution dissolve those barriers?
There is no reason to expect that it would. A periodic convention to reassess the Constitution is a far cry from rolling referenda on whatever question arouses a moment’s passion. The First Amendment, the Fifth Amendment, the equal-protection clause, and so forth would be re-ratified in almost any imaginable constitutional process—perhaps with some clarification that, for instance, “freedom of speech” does not mean unlimited money in politics. In any case, if majorities really wanted to reject these principles root and branch, courts would not save them from themselves for long.
Any government can hurt people. Power is always dangerous. Recent Supreme Court decisions are a reminder that channeling power through old texts and the decisions of robed lawyers does not mean it ceases being power. Democracy is the gamble that, all things considered, we are our own best rulers, and can trust one another further than we can trust any version of minority rule—judicial, geographic, class, or otherwise. To come closer to that principle, we need a Constitution that empowers us, the people (no need for capitalization), to set our own fundamental law.
About the author: Jedediah Britton-Purdy is a professor at Duke Law School. His books include AfterNature and This Land Is Our Land, and, most recently, Two Cheers for Politics: Why Democracy Is Flawed, Frightening—and Our Best Hope.2022
==
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3087&context=facpub
2018 Big Food and Soda Versus Public Health: Industry Litigation Against Local Government Regulations to Promote Healthy Diets
Sarah A. Roache Georgetown University Law Center, sarah.roache@law.georgetown.edu Charles Platkin School of Urban Public Health, City University of New York, cplatkin@hunter.cuny.edu Lawrence O. Gostin Georgetown University, gostin@law.georgetown.edu Cara Kaplan Fordham Law School, ckaplan7@law.fordham.edu
p 1078
sf 2015:
D. San Francisco Soda Warning Ordinance
In 2015, San Francisco became the first United States jurisdiction to pass legislation requiring soda companies to include a statement on advertisements warning of the health impacts of consuming sugar sweetened beverages.181 Specifically, the ordinance required companies to place warnings on advertisements on billboards, vehicles, and similar structures, stating: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”182
The ordinance required that this warning occupy twenty percent of the total advertisement space.183 It applied to advertisements for non-alcoholic beverages containing caloric sweeteners and more than twenty-five calories per twelve ounces of beverage, with exemptions for milk, milk alternatives, and 100% natural fruit and vegetable juices.184 San Francisco’s purpose in requiring the warning was to “inform the public of the presence of added sugars and thus promote informed consumer choice that may result in reduced caloric intake and improved diet and health, thereby reducing illnesses to which [sugar-sweetened beverages] contribute and associated economic burdens.”185
Shortly after the City passed the ordinance, the ABA, the California Retailers Association, and the California State Outdoor Advertising Association filed a suit in the United States District Court, Northern District of California, to preliminarily enjoin the ordinance, alleging that it violated the plaintiffs’ freedom of speech and unjustly targeted sugar-sweetened beverages as a contributing factor to the obesity epidemic.186 To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”187 At the district court level, the judge found that the plaintiffs were unlikely to succeed on the merits of their First Amendment claim and were unlikely to suffer irreparable harm if the ordinance went into effect.188 Furthermore, the district court found that even if the plaintiffs may succeed on the merits, the balancing test would weigh in favor of denying the injunction.189
The district court noted that the city had a reasonable basis to enforce the ordinance due to its interest in public health and safety.190 The plaintiffs subsequently appealed the decision to the Ninth Circuit Court of Appeals,which reversed the district court’s decision and upheld the preliminary injunction to enjoin the San Francisco ordinance.191 First, the court of appeals found that the plaintiffs were likely to succeed on the merits of their First Amendment claims.192 The plaintiffs claimed that the warning label requirements infringed on their First Amendment right to freedom of speech.193 While the First Amendment freedom of speech protectionsmay traditionally be associated with individual liberty, the U.S. Supreme Court has confirmed that these protections extend to commercial speech.194
p 1080...
---
---
https://www.alternet.org/2020/07/gangster-capitalist-trump-is-running-a-mafia-state-and-things-are-about-to-get-worse-pulitzer-prize-winning-journalist/
Time is broken in Donald Trump’s America. Minutes feel like hours, hours feel like days. Weeks are months, and months are years. And there is an overwhelming sense of time warped by dread as the country careens towards a dangerous climax on Election Day — whatever the outcome.Disorientation is a feature of life in a failing democracy where fascism is ascendant.
In a widely read conversation here at Salon during the first few weeks of the national pandemic lockdown and the implosion of America’s economy, journalist and bestselling author Chris Hedges warned that, compared to what may lie ahead, “these were the good times.”
This was before the coronavirus pandemic continued its deadly march where today more than 136,000 people are dead. Hedges’ warnings were also made before we saw the full horror of Trump’s willful incompetence, cruelty and sabotage, or his willingness to sacrifice millions of Americans — including, potentially, children — for “the economy,” capitalism and, of course, his own re-election. Hedges also issued his warning about “the good times” before Trump’s threats of martial law and using military forces against the George Floyd protests and people’s uprising. It was also before Donald Trump declared war on Independence Day weekend against any and all Americans who dare to oppose him.
I reached out to Hedges again and asked him, “Are these still the good times?”
Yes, he said, they are.
In our latest conversation, Hedges explains why this perilous moment in America will be looked back upon fondly, compared to what the future holds. He sees little hope in Joe Biden and the Democratic Party, which he believes have no substantive solutions for the social inequality and other institutional problems that spawned Donald Trump and his white neofascist movement. Hedges is also concerned that America is spiraling down into the type of ethno-political violence he personally witnessed in Yugoslavia during that country’s civil war in the 1990s.
But Hedges also sees hope for saving the United States from imminent tyranny. Where? In the George Floyd protests and the possibility of revolutionary change.
You can also listen to my conversation with Chris Hedges on my podcast “The Truth Report” or through the player embedded below.
As is customary, this conversation has been edited for clarity and length.
Under Donald Trump’s reign, America is a country run by a crime family. Trump and his Republicans have no moral authority. They are removing any oversight by firing inspectors general within the federal government, which has allowed Trump and his allies to loot coronavirus relief funds for billions of dollars. Trump and his cronies rage about “law and order” and locking up people who were looting during the George Floyd uprising — when in reality the plutocrats are looting an entire country and have been doing so for decades.
It’s a mafia state. There’s no control. There’s no regulation. The system is full of legalized bribery. The electoral process is corrupt as well. The courts are stacked with right-wing ideologues.The press has been bought off and corporatized. Many of our constitutional rights as Americans have been revoked by judicial fiat, including the right to privacy. Corporate money floods political campaigns in the name of “free speech.” The United States is a failed democracy and a mafia state, the natural result of what happens when capitalism is deregulated.
Trump, Mitch McConnell, the other Republicans and their gangster capitalist allies are telling the public that $1,200 in coronavirus relief money is adequate. But the billionaires and millionaires are the ones who received the majority of the “relief” funds. America’s billionaires are now $500 billion richer because of the coronavirus disaster. The average American is closer to homelessness. Neoliberal capitalism amounts to socialism for the rich and “free markets” for everyone else.
Mitch McConnell and the other elites really have not figured out what is happening in this moment of great crisis and upheaval. What we are seeing now in America is about so much more than people just being sick of the police murdering innocent people. It is a generational and class revolt. Yes, COVID certainly exacerbated it. But all of the kindling was already there. Chronic underemployment, massive consumer and student debt, being priced out of the for-profit health care system and the expansion of militarized police and the prison system.
This movement is multiracial. It is led by people of color, but certainly, there are a lot of young white people out there too, and my sense is that they are no longer buying into being gaslit by the elites anymore.
The empire always strikes back. What will that look like?
We have to acknowledge that the empire is tottering towards its collapse. So what is empire? Empire is the expression of white supremacy beyond our borders. The whole nature of empire is to go into the Middle East — previously into Vietnam, Latin America, the Philippines and elsewhere — and steal natural resources and exploit cheap labor in the name of white supremacy. And of course, we have an American society built on chattel slavery and genocide against indigenous peoples. What empires traditionally do at the end is they engage in what historians call “micro-militarism”.
At the end, as they slip into an irrevocable decline, empires engage in military adventurism in a desperate bid to bring back lost power, lost wealth and lost glory. America has done this in the Middle East. The result is that America has been hollowed out from the inside.
At the end stage, the elites need the tools that the empire perfected on people of color abroad. That is why we see the drones and militarized police and heavy weapons such as armored personnel carriers being used here in America against the country’s own citizens.
White supremacy hurts white folks. There are so many examples of this, from the way that federal and state resources are spent putting Black and brown people in prison in disproportionate numbers to how white racism hurts the overall economy. The police in Buffalo intentionally knocking down that older white man, who lay there bleeding from the head while the police walked over him like he was human garbage, was such a profound metaphor for how racism hurts white people. With the George Floyd protests and people’s uprising, white folks are seeing, again, that what Black and brown folks have been saying about police thuggery is true. Now the police are brutalizing white people.
People of color always, throughout American history, suffer first. They are the first to suffer — and they suffer disproportionately. But de-industrialization has now hit the white working class. The tools of control are now being used against them. Overall, I don’t so much fault the white racists. They are what they are. I fault the white liberals who really did not pay attention to what was happening to primarily poor people of color in urban areas.
Everything that is now enraging white progressives is not new — it goes back decades. But it was never really covered by the mainstream American news media. The liberal elites busied themselves with the boutique activism of “diversity” and “tolerance,” “multiculturalism” and the like. Sure, that is well and good, but not when such approaches are divorced from economic justice.
When you look at these multiracial, intergenerational protests, what do you see?
There has been mass economic disenfranchisement. There is a leadership crisis too among the Democrats and the so-called liberals.
For example, look at what the Congressional Black Caucus is doing. They are repeating the same kind of tired clichés about police reform we have heard for years. Most people participating in the George Floyd protests know that such reforms are useless. Empty symbolism. The mayor of Washington, D.C., Muriel Bowser, paints “Black Lives Matter” in 35-foot-tall letters on a street near the White House. But at the same time, she’s pushing for a $45 million increase in the police budget and the construction of a $500 million new jail. I don’t think people are buying such a performance. I also don’t believe that people are buying Pelosi’s little kente-cloth, “take a knee in solidarity with Black Lives Matter” trick either.
In part, such actions have no credibility because younger white people no longer buy into the policies of the oligarchs which produced all of this extreme social inequality in the first place. People of color have long known this truth. Now younger white people are being forced into a new type of awareness and consciousness. That is a good thing.
I worry that the Democrats are setting themselves up for great failure and a crushing defeat with all this celebration of how Biden is leading Trump in these early polls. Polls are a snapshot in time. They are not predictive of the outcome on Election Day. Hillary Clinton and Mike Dukakis had double digit leads at various times, and they both lost to Republicans.
As embarrassing and awful as Trump is, he serves corporate power just like Joe Biden. The big corporate Democratic Party donors made it clear that if Bernie Sanders became the presidential nominee, they would support Trump. The donor class has created a system where they cannot fail. If it’s Trump or Biden, Goldman Sachs doesn’t lose, ExxonMobil doesn’t lose, Raytheon doesn’t lose, Citibank doesn’t lose. There is no way that they can lose. They have rigged the system so that their interests are always served.
Donald Trump tried to order the United States military to attack the American people several weeks ago because they dared to participate in massive protests against police brutality and social inequality. These protests continue and social movement scholars are now saying that the George Floyd protests may be the largest such mobilizations in American history. Trump tried to order martial law and the senior leaders of the United States military basically told him no. On one hand I am glad the military defied Trump. On the other hand, I am deeply concerned about such power in a democracy being normalized. Either way, America is not a healthy democracy.
The military does not want to be deployed in the streets. At present they are the most respected social and political institution in the country. The military gets even more money than they ask for from the Democrats and the Republicans. The military, quite correctly, saw that it would be disastrous for them to follow Trump’s commands to crack down and enact martial law.
As a practical matter, the military does not need to intervene against the George Floyd protesters and others who have taken to the streets because the American police are so highly militarized. In America there are SWAT teams who don’t look much different than Army Rangers knocking down doors in Afghanistan.
In many ways, the most potent anti-democratic force in the United States is the military. They are untouchable. The U.S. military cannot even be audited. Such power and influence are a classic symptom of the end of an empire. The Praetorian Guard can no longer be controlled by the supposed political leaders.
There have been incidents across the country in which white mobs attack Black Lives Matter protesters, anti-fascists and other Americans of conscience. These thugs are yelling Trump slogans, wearing his regalia and attacking with baseball bats and other weapons. The Trump street enforcers also have guns. Where do we go from here?
The more beleaguered Donald Trump becomes, the more he and the other racists and nativists will incite violence. America right now reminds me of Yugoslavia during the 1990s.
Donald Trump’s supporters are willing to kill and die for him. This is just the beginning of what is going to happen as Election Day approaches. You have been in war zones and countries torn apart by ethnic cleansing and genocide. What is the model for how a people turn on each other?
It begins with economic dysfunction, which is what happened in Yugoslavia. Yugoslavia went into de facto bankruptcy. The huge state factories closed, just like they did here in the United States. There was massive unemployment, the social bonds in the country were ruptured. There were bread lines. People lost everything, including a sense of identity. As a result, they retreated into these mythical narratives about themselves as Serbs, Croats and Muslims. In such a moment shared public discourse is impossible. These other identities and their myths have now superseded verifiable historical fact. That’s what happened in Yugoslavia, and that is very much part of what is happening in the United States.
Then there is the rise of demagogues who demonize a segment of the population and target them as the Other. Then the eliminationist rhetoric and violent rhetoric begins. After four years, people started shooting each other in Yugoslavia. The United States is approaching that point.
We spoke with each other several months ago during the first few weeks of the national coronavirus lockdown and economic collapse. You told me that as horrible as things were then, it was in fact “the good times.” Several months have gone by. Is the United States still experiencing “good times” as compared to what will happen in the future?
Yes, as compared to what is coming. The elites are not responding rationally to the coronavirus pandemic, the economic devastation and the myriad of other problems facing the United States right now. America’s ruling class is doing just what they did in 2008, which is to line their own pockets at the public’s expense and to cast the rest of the country — the working poor and the working class — aside as if they were human refuse. That is all very shortsighted, of course, because of the blowback. The ramifications are catastrophic. One would think that America’s elites would respond in a smarter way, if even for their own self-preservation. If elected president, Joe Biden certainly isn’t going to respond properly.
The George Floyd protests are more accurately described as a generational class revolt. I hope that the protesters and their allies win, because if we do not take power back from this American mafia state then there will be a very ugly type of tyranny in the country.
As Aristotle said, once you have oligarchic rule, there are only two choices. It is revolution or tyranny, and that’s it. I’m not naive enough to tell you the revolution is going to win, but I’m going to tell you that if it doesn’t win then there will be a very ugly corporate tyranny in the United States.
The American elites, the ruling class, has already rewritten all the laws.They already have the prison cells. They’ve already militarized the forces of internal security.They’ve already legitimized the revoking of basic rights like habeas corpus and due process. Americans are already the most watched, monitored, surveilled, photographed population in human history. The forces of tyranny are ready to go.
I’m more optimistic because I see the resistance in the streets, which wasn’t there a few weeks and months ago. That’s where hope lies. It lies in the streets. And I have got to acknowledge these people. They’re mostly young, incredibly courageous, they are out there braving economic misery, arrests, indiscriminate, brutal and often lethal police violence and COVID-19, and they’re fighting against injustice and the elites anyway. They’re all heroes in my book.
==
---
https://publicintegrity.org/politics/study-most-americans-want-to-kill-citizens-united-with-constitutional-amendment
Federal Politics Reporter
This article was co-published by TIME, Public Radio International and the Buffalo News.
INTRODUCTION
Three-fourths of survey respondents — including 66 percent of Republicans and 85 percent of Democrats — back a constitutional amendment outlawing Citizens United.
The study also indicates that most Americans — 88 percent overall — want to reduce the influence large campaign donors wield over lawmakers at a time when a single congressional election may cost tens of millions of dollars.
That most Republican and Democratic voters want to amend the Constitution to limit big money’s role in politics is notable because it’s the “most drastic step that can be taken,” said Steven Kull, director of the University of Maryland School of Public Policy’s Program for Public Consultation, which conducted the study.
[graph?]
The 2010 Citizens Uniteddecision specifically allowed corporations, unions and certain nonprofits to raise and spend unlimited amounts of money to advocate for and against political candidates. It also gave rise to super PACs — lightly regulated political committees that have become major weapons in both state and federal politics.
Candidates and political parties, meanwhile, may by law only accept limited contributions.
Overturning Citizens United has been many liberals’ dream for years, although it’s highly unlikely to happen. The traditional route for amending the Constitution requires a vote of two-thirds of both the House and Senate, followed by ratification by three-fourths of state legislatures. The Constitution was last amended in 1992.
Most survey respondents also support congressional action on money in politics that fell short of a constitutional amendment, such as a bill that required corporations and unions to report campaign spending to shareholders, members and the public in addition to disclosures they file with the Federal Election Commission.
Some major corporations with household names indeed keep their political practices and spending quiet, such as Expedia, Garmin and Netflix, among others, according to a study by the nonpartisan Center for Political Accountability and the University of Pennsylvania.
A recent Center for Public Integrity analysis found that Congress has little appetite for passing laws addressing campaign cash: Of more than two dozen money in politics bills introduced early in the current congressional session, lawmakers have not conducted a single formal hearing or vote on any of them.
Less than half of those surveyed consider an anti-Citizens United amendment to be an attack on free speech. More than four out of five agree with the statement that “the rich should not have more influence just because they have more money.”
David Keating, president of the Institute for Free Speech, a conservative nonprofit, questioned the survey’s findings.
“If Americans knew that repealing Citizens United would allow Congress to censor critics and make it more difficult to defeat corrupt incumbents then they’d be less likely to support it going away,” Keating said. “It’s typical for academics to tout biased polls with questions that try to undermine support for free speech.
Although Democrats typically tout reducing big money and eliminating secret money in politics, they don’t always follow their own counsel.
For example, a Center for Public Integrity investigation revealed how a big-spending Democratic super PAC used a loophole in federal law to hide the identities of its donors until after Alabama’s special U.S. Senate election in December. Democratic presidential candidate Hillary Clinton also benefited from millions of dollars worth of so-called “dark money.”
One campaign finance reform that most survey respondents dismissed? Funding presidential campaigns with public money using a federal system that’s largely fallen out of favor since the Citizens Uniteddecision. Two-thirds of respondents would prefer the federal government nix the checkbox on their tax forms that provides $3 to campaigns and instead direct the funds to other areas, such as pediatric research or deficit reduction.
Campaign finance reform isn’t the only thing voters on both sides of the aisle agree on: the University of Maryland found in a study late last year that Americans on the whole thought lawmakers should wait longer periods of time before cashing in on K Street as lobbyists. Read more in Money and Democracy
---
http://united4thepeople.org/resources/
Resources
==
Does “We the People” Include Corporations?
by Ciara Torres-Spelliscy
Introduction: Contesting Personhood
The plain meaning of words can get mangled in the hands of a clever lawyer. One word that is heavily contested in the American legal context is “person”—and by extension—who counts as a member of “we the people.” For instance, Chief Justice Roger B. Taney had a case before him in 1857 where a man was trying to claim his status as a free man because he had long lived in a free territory of the United States. In Chief Justice Taney’s hands, Mr. Scott was not a person at all. He was property to be bought, sold, and inherited, and the only rights Chief Justice Taney would protect were the property rights of his owner. In Dred Scott, the Supreme Court concluded that African Americans were not included in “we the people” in the preamble of the U.S. Constitution. The Court concluded that blacks “had no rights which the white man was bound to respect. . . .”
This racist conclusion of the Supreme Court fencing out African Americans from counting as “persons” was controversial in its day. In response toDred Scott, ex-slave Frederick Douglass gave a speech before the American Anti-Slavery Society. He said of the U.S. Constitution’s preamble, the text says,
“We, the people”—not we, the white people—not we, the citizens, or the legal voters—not we, the privileged class, and excluding all other classes but we, the people; not we, the horses and cattle, but we the people—the men and women, the human inhabitants of the United States. . . .
Thus, Douglass reasoned “we the people” included African Americans as well.
Courts continue to this day to wrestle with the basic question of who or what counts as a person with protectable rights. Flash forward to 2010 when the Supreme Court ruled in Citizens United v. FEC that corporations have First Amendment political rights to buy ads in all American elections. If the logical flaw in Dred Scott was mistaking a person (Mr. Scott) for a piece of property, the blunder in Citizens United was mistaking a piece of property (a corporation) for a person. (For a longer analysis of the Scottdecision, see Crooms-Robinson’s article that begins on page 2.)
Through Article V amendments to the Constitution, the American people decided that individuals who had long been excluded from being considered part of “we the people,” like African Americans and women, were, in fact, full members of the body politic. But now counter-majoritarian courts are taking the lead in shoehorning corporations into roles that previously only American citizens occupied. Corporations do not have coequal constitutional rights as living, breathing human citizens, but they are making claims on more rights that, until relatively recently, were only asserted by real people.
The Evolution of the Corporate Form
I wrote about the bizarre U.S. Supreme Court jurisprudence surrounding corporations in my book Corporate Citizen? An Argument for the Separation of Corporation and State. In a nutshell, in my book I argue that the Supreme Court is allowing for vastly expanded corporate rights, while at the same time the same Court is excusing corporations from a growing list of responsibilities. As I demonstrate in my book, corporate lawyers have a long history of arguing for expanded notions of corporate personhood in America. In fact, early American lawyers were only carrying on a tradition that started centuries ago across the sea in Europe. The idea of anthropomorphizing corporations through “corporate personhood” dates back to a medieval pope who was also a lawyer. The idea of corporate personhood spread across Europe, jumped to England, and landed in America along with the British colonists.
Corporations have evolved radically since America became a nation at the end of the eighteenth century. Justice Louis Brandeis, in his famous dissent in Liggett, 288 U.S. at 554–56, Louis K. Liggett Co. v. Lee (1933), explained the historical path of the expansion of corporations from single-purpose entities with limited terms of existence into the multipurpose, immortal behemoths we have today. As Justice Brandeis wrote:
Limitations upon the scope of a business corporation’s powers and activity were also long universal. At first, corporations could be formed under the general laws only for a limited number of purposes—usually those which required a relatively large fixed capital, like transportation, banking, and insurance, and mechanical, mining, and manufacturing enterprises. Permission to incorporate for “any lawful purpose” was not common until 1875; . . . All, or a majority, of the incorporators or directors, or both, were required to be residents of the incorporating state. The powers which the corporation might exercise in carrying out its purposes were sparingly conferred and strictly construed.
As Justice Brandeis noted, the purposes of corporations were once narrow and are now incredibly broad.
One of the big changes from the founding to today is that, at the founding, only a special legislative act could create a corporation. By contrast, now, under general incorporation statutes, incorporators can file a few administrative papers, pay a few fees, and be the proud owner of their very own corporation. And many take advantage of this ease and convenience. Approximately 2 million corporations are incorporated annually in the United States. Delaware has clearly won the race for corporate charters, as the majority of U.S. corporations are incorporated in Delaware, America’s second smallest state.
Additionally, at the founding, corporations were created for a limited purpose, like building a road from point A to point B. Now, while incorporators could limit the purpose of a corporation in its articles of incorporation, few do. Rather, the norm presently is for entrepreneurs to establish corporations for “any lawful purpose.” This allows modern firms to do multiple lines of business as well as assert the ability to act in non-business fora.
After Citizens United was decided in 2010, bumper stickers appeared stating: “I’ll believe a corporation is a person when Texas executes one.” What this clever catchphrase captures is the fact that corporations are not corporeal. Contemporary corporations, unlike their human counterparts, can exist in perpetuity, hence why they are sometimes referred to as being “immortal.” Cryogenics aside, although Walt Disney the man died, the Walt Disney Company shows no signs of going anywhere anytime soon.
This wasn’t always the case. Until 1875, corporate franchises were for a limited term of years. But eventually, as states competed in a race to the bottom for corporate charters, they all eventually allowed corporations to continue in perpetuity. So now, anyone can incorporate a corporation, and those corporations do not have to be for a limited purpose, or for a limited time. This, of course, could be changed if state laws, like those in Delaware, were changed to require corporations only for limited terms.
Today, immortality is a feature of modern corporations, not a bug. But this may be why granting corporations the same rights as individuals doesn’t always make sense. As the Supreme Court once concluded, “[s]ometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike[.]” Buckley v. Valeo, 424 U.S. 1, 97–98 (1976). And this seems particularly apt, when corporations and humans are being balanced on the scales of justice.
As corporations themselves grew, simultaneously the diffusion of stock ownership grew dramatically. At the founding, the owners of a corporation would typically be a small circle of people. As such, a small group of investors could easily keep an eye on how their investments were being managed. But with the modern publicly traded corporation, millions of people may own stock in a single firm. Shareholders are geographically dispersed, and because each one typically owns only a fraction of a percent of the firm, the incentive to keep a watchful eye over management is diminished. In the 1930s, Professors Berle and Means worried that this separation of management from control would prove troublesome. And time has shown that Berle’s and Means’s instincts were correct. Whether the issue is executive compensation or other aspects of corporate governance, shareholders have collective action problems that inhibit the coordination of large numbers of investors, and they also have a rational disinterest in not monitoring corporate insiders on a regular basis. Corporate managers, thus, may act in undisciplined and self-serving ways at the expense of shareholders, like helping themselves to generous retirement packages or the use of perks like corporate jets.
This is known as an agency problem—corporate managers are the shareholders’ agents within the firm, and the managers have a fiduciary duty to act in the shareholders’ best interest, but because the shareholders are not continually monitoring the behavior of managers, the managers may produce suboptimal returns for investors because of self-serving behaviors like enjoying expensive perks on the company’s dime. The worries raised by the agency theory become more acute as firms become larger and the temptation for managers to tap corporate resources for personal reasons—like backing a favorite political cause at shareholder expense—grows.
At the same time that statutory powers of corporations expanded, the Supreme Court also decided which constitutional rights could attach to the corporate form. The Supreme Court’s approach to the rights for corporations can be divided into two distinct strains of case law. Interestingly, while the Court has concluded that corporations are “persons” within the meaning of the Equal Protection Clause of the Fourteenth Amendment, the Court has been quite reticent to concede that corporations are “citizens” for the purpose of the Privileges and Immunities Clause.
Corporate Personhood Expands
There is a widely held misconception that Citizens United was the first case to create corporate personhood. This claim lands quite wide of the mark. First, the phrase “corporate personhood” does not appear in the opinion at all. Second, Citizens United did not grant corporations personhood. Corporations already had it.
Throughout American legal history, corporations have been near the first in line to claim various constitutional rights. This was true when it came to corporations’ claiming rights protecting private property and rights protecting the right to contract. The Supreme Court considered the property rights of corporations in Terrett v. Taylor, 13 U.S. 43 (1815). In Terrett, the Episcopal Church (a corporation) asserted property rights over certain land. The Supreme Court stated that the property rights were not disturbed by the Revolutionary War. And as the Supreme Court stated: “[T]he dissolution of the regal government no more destroyed the right to possess or enjoy this property than it did the right of any other corporation or individual to his or its own property[.]”
The Supreme Court in very early cases decided that corporations were covered by the Contract Clause of the Constitution. Article I of the Constitution says, “[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts. . . .” This means that a state, like New Hampshire, could not pass a law that interfered with a pre-existing contract between two parties. In the Dartmouth College case in 1819, the college (a corporation) claimed protection under the Constitution’s Contract Clause. The Supreme Court agreed that it applied, ruling even the Revolutionary War had not changed contractual rights for educational corporations like the college. Despite recognizing differences between corporations and actual citizens in the case, the Supreme Court ultimately held that New Hampshire had violated the Contracts Clause when the state essentially tried to take over the private college.
Equal Protection and Corporations
The first big leap in corporate personhood from holding mere property and contract rights to possessing more expansive rights was a claim that the Equal Protection Clause applied to corporations. One of the strangest twists in American constitutional law was the moment that corporations gained personhood under the Equal Protection Clause of the Fourteenth Amendment. It occurred in a case called Santa Clara County, and what was odd was that the Supreme Court did not really even decide the matter in the actual opinion. It only appeared in a footnote to the case.
Corporations were very aggressive in asserting Fourteenth Amendment rights after the Civil War. We have the likes of former U.S. Senator Roscoe Conkling to thank for the extension of Equal Protection to corporations. Conkling helped draft the Fourteenth Amendment. He argued as an expert witness in 1882 in San Mateo County v. Southern Pacific Rail Road that the Fourteenth Amendment is not limited to natural persons. He produced a journal that seemed to show that the Joint Congressional Committee that drafted the Fourteenth Amendment vacillated between using “citizen” and “person” and the drafters chose “person” specifically to include corporations. According to historians, Conkling was simply lying. Nonetheless, the Supreme Court embraced Conkling’s reading of the Fourteenth Amendment, not in the San Mateo County case, but rather in a footnote four years later in 1886 in Santa Clara County v. Southern Pacific Rail Road.
In the 1970s,Santa Clara was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in a case called Bellotti. In Citizens United in 2010, when the Supreme Court held that political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation,” they cited Bellotti. Hence, there’s direct line betweenSanta Clara and Citizens United. So, Citizens Unitedwas more of a culmination, and not the beginning, of the Supreme Court’s granting ever more expansive rights to corporate “persons.” But, of course, the Court continued to be petitioned by corporations that were emboldened by Citizens United. The troublesome conclusions of Citizens Unitedrecognizing political rights for corporations were extended in 2014 in Hobby Lobby, which recognized statutory religious rights for corporations too.
Not Citizens Under the Comity Clause
Article IV’s Privileges and Immunities Clause cases are one of the few areas of law where the Supreme Court has refused to extend the rights of humans to corporations. This clause of the Constitution reads: “[T]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The point of the Privileges and Immunities Clause, also known as the Comity Clause, is to stop a given state from treating out-of-staters worse than it treats its own citizens. Alexander Hamilton, in Federalist No. 80, argued that the Comity Clause was “the basis of the union.” The Comity Clause helps safeguard the principle that Americans have the same rights no matter where they are within the United States.
In contradistinction to the Supreme Court’s approach under the Fourteenth Amendment of treating humans and corporations as functional equivalents, under the Comity Cause the Court has not extended corporations “citizenship.” The Supreme Court’s holding that corporations are not covered by the Comity Clause traces back to Bank of Augusta v. Earle, 38 U.S. 519, 587 (1839), where the Court concluded that “[t]he only rights [a corporation] can claim are the rights which are given to it in that character, and not the rights which belong to its members as citizens of a state.” (Also note that “corporations are neither persons nor partners, but artificial bodies politic, created by act of state, always ad hoc, and their franchises are granted for public good, of which they are the supposed instruments.”) This central holding has been reaffirmed repeatedly by the Supreme Court.
Courts have been willing to grant expansive rights to corporations, but they have not granted corporations and people identical rights. To this day, the Supreme Court has been of at least two minds when it comes to corporations—they are treated as “persons” who are covered by the Equal Protection Clause (and Contracts Clause among others), but they are excluded from the definition of “citizens” under the Comity Clause. One of the reasons why the anticorporate citizenship cases are so important is that they serve as a legal basis to challenge the direction of the probusiness Roberts Court.
What’s at Stake in Jesner v. Arab Bank
While the Supreme Court (outside of the Comity Clause exception) has given more corporate rights to corporations, especially in the areas of Equal Protection and the First Amendment, the Supreme Court has also puzzlingly excused corporations from certain human rights suits. This Supreme Court term, the Court may dig itself into an even bigger hole in its peculiar treatment of corporations. The case that affords this opportunity is Jesner v. Arab Bank. The plaintiffs in Jesnercould not be more sympathetic. They are the victims of suicide bombings and the families of victims killed in terrorist attacks. Their case was scheduled to be heard by the justices on October 11, 2017. The issue in the case is one that has been rattling around the U.S. legal system for years, and it is now on a roundtrip back to the Supreme Court. This issue is simply: Can corporations be sued for their human rights violations abroad in U.S. federal courts under the Alien Tort Statute?
If the issue in Jesnersounds familiar, it should. This was one of the questions in Nestle USA v. Doe in 2015. The Supreme Court denied cert. in the Nestle USA case in January 2016. It was also the issue in Kiobel v. Royal Dutch Petroleum in 2013 (Kiobel II). In Kiobel II, after two oral arguments, the Supreme Court punted on the core questions of corporate liability and instead decided that in “foreign cubed” cases (with a foreign plaintiff, a foreign defendant with underlying events occurring on foreign soil), that U.S. federal courts lack jurisdiction. This left open the issue of whether a corporation could be sued in a case that touched and concerned the United States. In Jesner, the Supreme Court gets another opportunity to clarify whether (and if) corporations can aid and abet human rights abuses outside the United States and get away scot-free.
In Jesner v. Arab Bank, the Arab Bank (a corporation) stands accused of, among other things, helping to finance terrorist attacks and incentivizing suicide bombings by paying funds to the families of so-called “martyrs” who carry out the bombings. In other words, the bank helped to pay the families of the perpetrators of the violence (not the families of their victims).
The way that the Arab Bank may get away with this alleged morally troubling behavior, even though it has a New York branch, is by reasserting the basic argument that was made in Nestle USA and Kiobel II: that the federal Alien Tort Statute was not intended to apply to corporations full stop. Given other cases in this area like Mohamad v. PLO, which held the word “individual” in the Torture Victim Protection Act means a natural person and does not impose any liability against organizations, the Arab Bank’s procorporate argument may well prevail.
There are multiple federal Circuit Courts which have shot down the argument that corporations are immune from suit under the Alien Tort Statute. The lone outlier is the Second Circuit, which decided in 2010 that corporations are excused from suit in Kiobel I. This is the case that was appealed to the Supreme Court and became Kiobel II.Jesner v. Arab Bank was litigated in the Second Circuit. One question in Jesnerwas what exactly did Kiobel II do to Kiobel I. So far in the litigation, Jesnerconcluded that Kiobel I and its conclusion that corporations can’t be sued in federal court using the Alien Tort Statute remained the controlling law of the Second Circuit.
So, what is the new Supreme Court likely to do in Jesner v. Arab Bank? No one can know for sure. If the Supreme Court cares to notice, most federal Circuit Courts have decided that liability for corporations under the Alien Tort Statute is appropriate, and the Second Circuit still stands alone in its aggressive reading of the law that corporations simply are not liable. It’s also possible that the justices could find the victims of suicide bombings more sympathetic than the widow in Kiobel IIwhose husband was executed in Nigeria after a widely decried show trial against African environmentalists who protested against Shell’s pollution of their land.
Conclusion
What we are likely to have at the conclusion of the Supreme Court term is corporations that are empowered to spend in American elections because of Bellottiand Citizens United; corporations that can make religious objections thanks to Hobby Lobby; and if Jesnerturns out as badly as I predict, corporations will be able to aid and abet human rights violations abroad with impunity. It’s not a pretty picture. If corporations are going to be treated as legal persons, they should have personal accountability too, especially for human rights abuses.
---
Ciara Torres-Spelliscy is an associate professor of law and the Leroy Highbaugh Research Chair at Stetson University College of Law and a fellow at the Brennan Center for Justice at New York University School of Law.She is the author of Corporate Citizen? An Argument for the Separation of Corporation and State.
Over time, corporations have engaged in an aggressive campaign to dramatically enlarge their political and commercial speech and religious rights through strategic litigation and extensive lobbying. At the same time, many large firms have sought to limit their social responsibilities. For the most part, courts have willingly followed corporations down this path. But interestingly, corporations are meeting resistance from many quarters including from customers, investors, and lawmakers. Corporate Citizen? explores this resistance and offers reforms to support these new understandings of the corporation in contemporary society.
https://www.amazon.com/Corporate-Citizen-Argument-Separation-Corporation/dp/1632847264
==
https://www.acslaw.org/book/corporate-citizen-an-argument-for-the-separation-of-corporation-and-state/
am const soc
:{ACS:(style="box-sizing:inherit;margin:0px;padding:0px;outline:0px;display:inline-block;white-space:normal"):}: > :{Analysis}: > :{ACS Books}:
JUNE 14, 2016
Corporate Citizen? An Argument for the Separation of Corporation and State
---
by :{Ciara Torres-Spelliscy}:, Associate Professor of Law at Stetson University College of Law; Brennan Center Fellow.
Corporations are strange bedfellows to have in a democracy. My new book, *Corporate Citizen?*, explores how, over the course of American history, corporations have aggressively sought to expand their constitutional rights. And, American courts, especially the U.S. Supreme Court, have often obliged - enabling the slow, yet steady, expansion of corporate rights since near the founding of the nation. But the current Roberts Supreme Court has taken this enabler role to new heights and earned the nickname the “Corporate Court” because of its solicitude towards corporate litigants.
My basic thesis in Corporate Citizen? is that corporations have gained more rights that previously, and appropriately, only applied to human beings, like religious and political speech rights. This could have been palatable if human style responsibilities were also being given to corporations. Instead corporations get to have their cake and eat it too. They are spared concomitant responsibilities, as they are given a First Amendment veto to shoot down reasonable regulations of their economic activity.
By contrast, when we conceptualize real (human) citizenship, typically there are a cluster of rights and responsibilities that are mixed together. We pay taxes, and we get a Congress to represent us. We serve on juries, and we get a fair trial. We sign up for the selective service (if we are men), and we get the protection of the military. If we are victims of a crime, we can seek justice. If we are guilty of committing a crime, we can expect to be held accountable under the rule of law.
But with corporations, which are at their essence just a pile of papers, U.S. courts have granted them more and more rights, and then simultaneously, absolved many firms from responsibilities. The book examines the lack of accountability in areas including environmental stewardship, paying taxes and respecting human rights.
Interestingly, these developments around expanded corporate power have not gone unnoticed and have been met with resistance from many sectors including from investors, customers and lawmakers. The final section of the book addresses these responses, and offers a potential path forward. Institutional investors, in particular, have been on the forefront of asking for corporations to be more transparent about using their new Citizens United rights to spend money in politics.
Meanwhile, customers are finding that when they want more information about corporate behavior – guess what – there’s an app for that. Smartphone applications can provide a wealth of information that customers can use while shopping to align their personal preferences in their hearts with what is in their shopping carts.
Lawmakers, on the other hand, have struggled to mitigate the role that corporations can play in our democracy since the Supreme Court has left them very little leeway to maneuver. The good news is that many states have improved their laws to bring more clarity to political spending including an innovative law in Maryland that requires disclosure of corporate political spending directly to investors. The bad news is legislatures are so hamstrung in what they are allowed to do, that retired Supreme Court **Justice John Paul Stevens**, among other jurists, have called for a constitutional amendment to put corporations back in economic sphere and stop them from encroaching so much in the political sphere.
Corporate Citizen? includes my interviews with many leading thinkers and actors in the field including the president of Demos Heather McGhee, the president of the Campaign Legal Center Trevor Potter, congressional candidate Professor Zephyr Teachout, co-founder of Ben & Jerry’s Ben Cohen, the executive director of the Center for Media and Democracy Lisa Graves, executive director of the Sustainable Investments Institute Heidi Welsh, and the former head of Greenpeace Phil Radford. While the topic is law, the book is written in a conversational tone so that it is accessible to a wide audience.
In this election year, the topic of the appropriate bounds of corporate power continues to be raised by candidates and voters alike. History shows that size matters. We’ve gone from “too big to fail” to “too big to jail.” We cannot reach the point where there are firms that are “too big to regulate.” FACEBOOK GOOGLE]And gigantism matters a great deal if real (human) citizens are expected to compete with corporations for the attention of elected officials in policy making, or for the attention of their fellow citizens during elections. Protecting the ideal of one-person-one-vote requires mitigating the power of corporate money in politics.
The ultimate hope articulated by Corporate Citizen? is that we are not so far gone that we cannot restore real citizens back to their proper place at the center of American democracy. And the book serves as a reminder, there are still formidable forces to resist the slide towards too much power pooling in too few hands.
---
In 2020, Professor Torres-Spelliscy was elected to be a member of the AALS Section on Constitutional Law Executive Committee.
Professor Torres-Spelliscy is a Brennan Center Fellow, a member of the Scholars Strategy Network, a member of the Board of Directors of the Mertz Gilmore Foundation, a former member of the Board of Directors of the National Institute on Money in State Politics, which was awarded the 2015 MacArthur Award for Creative and Effective Institutions.
Phone: 727-562-7856 | Email: ctorress@law.stetson.edu | Office: CR-211 (Gulfport)
==
BOOKS
Ciara Torres-Spelliscy
, Corporate Citizen?
not sjpl
---
The Divine Right of Capital
Dethroning the Corporate Aristocracy
by Kelly, Marjorie
3.4 out of 5 stars
Book - 2001
330.122 Kelly
sjpl
We the Corporations
How American Businesses Won Their Civil Rights
by Winkler, Adam
4.3 out of 5 stars
Book - 2018
346.7306 Winkler
Available
==
https://www.thebalance.com/corporations-are-people-4164777#:~:text=The%20Fifth%20Amendment%20protects%20corporations,public%20use%2C%20without%20just%20compensation.
6/20 k amadeo
Since 1976, corporations have been expanding their rights. They've become entities whose rights are protected by the U.S. Constitution. That gives them a legal status like that of U.S. citizens. As a result, they've increased their political and economic power.
The Constitutional Rights of Corporations
In various cases, the Supreme Court has granted corporations some of the same Constitutional rights as citizens. Explicitly, they are protected by the First, Fifth, and Fourteenth Amendments.
The First Amendment protects religious freedom, the right to free speech, and the right to assemble peacefully.
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.
On January 21, 2010, the Supreme Court gave the right of free speech to corporations and unions. *Citizens United v. the Federal Election Commission* allowed organizations to fund ads that explicitly endorsed or opposed a candidate.
The decision overturned Section 203 of the Bipartisan Campaign Reform Act of 2002. The McCain-Feingold Act said corporations should not have any influence on politics. The Act was named after Senators John McCain, R-AZ, and Russ Feingold, D-WI.
The Court said the Act restricted corporations' rights under the First Amendment. Justice Anthony M. Kennedy ruled, “Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.” The Court added that speech is a requirement of democracy. As a result, the First Amendment forbids discrimination against any class of speaker.
In 2014, the Court extended First Amendment protection to corporations' religious freedom. It said companies could disobey a law that violated their owners' religious beliefs. In Burwell v. Hobby Lobby Stores, Inc., the Court upheld Hobby Lobby's religious freedom. The company did not have to include contraception coverage in its health plans. The Court said the Affordable Care Act violated the firm's rights under the Religious Freedom Restoration Act.
The Court said the corporations had the same rights under the Fourteenth Amendment as people did. The Fourteenth Amendment protects citizens from state actions. It also affords all citizens equal protection. The state cannot discriminate against anyone in its enforcement of the law.
...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fifth Amendment protects corporations from government actions to nationalize their property.
... nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Corporate Personhood's Affect on Free Trade Agreements
Corporations maintain these constitutional rights in free trade agreements. The agreements make sure companies have the same rights in foreign countries as they do in the United States. There are four rights that pertain to trade.
- Freedom from discrimination. Foreign governments won't treat U.S. companies worse than local firms.
- Protection against the uncompensated expropriation of property. Foreign governments won't nationalize corporate property without fair compensation.
- Protection against denial of justice. Companies won't be denied justice in foreign courts.
- Right to transfer capital. Governments won't freeze corporate assets except in cases of financial emergency.
To make sure these rights are upheld, the countries agree to an approach called the Investor-State Dispute Settlement. It is a neutral, international arbitration process that resolves conflicts. Corporations can avoid a country's court system, where they might not be treated fairly. Under the ISDS, they are assured the same rights they receive under the U.S. Constitution.
Corporate Personhood's Affect on Politics
Since the Citizens United ruling, outside spending has soared. But it was soaring before that as well.
| Year | Amount (Millions) | Election |
|---|---|---|
| 2006 | $1.8 | Mid-term |
| 2008 | $37.5 | Presidential |
| 2010 | $15.9 | Mid-term |
| 2012 | $88.0 | Presidential |
Many blame the Supreme Court. It gave corporations the right to make donations for political advertising.
Others blame the 2002 Finance Reform Act. It allowed anyone with enough money to form a PAC. As a result, wealthy individuals and corporations have done so when they support a candidate. Some say it's why American politics has become more polarized.
The Trump tax cut has benefited many PAC donors. For example, the Congressional Leadership Fund ran ads supporting Republicans in the 2018 mid term campaign. The fund’s donors include the casino owner Sheldon Adelson who gave $30 million. His company, Las Vegas Sands, received a $700 million tax cut. Valero Services, a Texas oil refining company, gave $1.5 million to the fund. It received $1.9 billion in tax cuts.
A Timeline of Corporate Personhood
Corporations acquired many of their rights through the
. This battle pitted Congress against the Supreme Court. Congress wanted to restrict large corporate donations while the Court increasingly allowed them.
1907-1970: Congress limited campaign spending of corporations, unions, and federal employees.
1971: The Federal Elections Campaign Act required politicians to report their contributions. It limited how much an individual or group could donate. It created the Federal Election Commission.
1976: The Supreme Court said limiting campaign regulations was against the Constitution. In *Buckley v. Valeo*, the Court ruled that such limitations were a violation of free speech. It allowed unlimited funding for political commercials. It considered advertising to be a form of free speech.
1978: In *First National Bank of Boston v. Bellotti*, the Court reaffirmed that corporations had the right to free speech, just as individuals did. It said the Bank could spend money on state ballot initiatives. It did not grant them the right to support specific candidates.
2000:The presidential race saw $450 million in so-called soft money. Individuals, corporations, and labor unions could donate as much as they wanted to either major party. More than 60 percent came from organizations.
2002:Congress enacted the McCain-Feingold Act. It banned organizations from financing issue-based advertising on behalf of candidates. It also banned soft money. Instead, wealthy donors gave to "shadow parties." These political action committees supported a political agenda. In so doing, they supported the candidate that represented their views. But they were independent of the two parties.
2007: The Supreme Court allowed issue-based advertising if it did not endorse or oppose a candidate.
2008: Citizens United spent $1 million on ads criticizing presidential candidate Hillary Clinton. It violated the 2002 finance reform act. Citizens United sued, taking the case to the Supreme Court.
2010: In Citizens United v. the FEC, the Court ruled the McCain-Feingold Act violated the Constitution's First Amendment.
2010: Congress defeated a bill that would have made political donors reveal their identities. As a result, so-called dark money influences national and many local campaigns.
==
spike/plateau 2018?
https://www.history.com/news/14th-amendment-corporate-personhood-made-corporations-into-people
Originally adopted after the Civil War to protect the rights of freed slaves, the 14th Amendment has exponentially expanded the protection of civil rights for all Americans over the past 150 years. It’s been cited in more litigation than any other amendment to the U.S. Constitution, and has been at the center of many of the most famous Supreme Court decisions, including school desegregation (Brown v. Board of Education), abortion (Roe v. Wade) and same-sex marriage (Obergefell v. Hodges).
Under U.S. law, these essential rights belong not only to American citizens, but also corporations—thanks to a few key Supreme Court cases and a controversial legal concept known as corporate personhood.
So, what is the 14th Amendment again?
Ratified in 1868, it was one of three amendments to the U.S. Constitution designed to grant full citizenship rights to former slaves. While the 13th and 15th Amendments were relatively limited in scope—the first abolished slavery and the second granted voting rights to black men—the 14th Amendment exponentially expanded the protection of civil rights for all Americans.
The two most important provisions of the 14th Amendment guarantee that states, like the federal government, cannot “deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
What is due process and how does it work?
The fundamental principle of due process goes back to the Magna Carta, the 13th century English charter that inspired the framers of the U.S. Constitution. Due process ensures that all levels of government operate within the law and provide fair procedures for everyone. In practice, the Supreme Court has used the Due Process Clause of the 14th Amendment to guarantee some of the most fundamental rights and liberties we enjoy today. It protects individuals (or corporations) from infringement by the states as well as the federal government.
In Griswold v. Connecticut (1965), the Supreme Court ruled that a state ban on the use of contraceptives violated a couple’s right to marital privacy, which according to the Court was an essential liberty protected under the 14th Amendment’s Due Process Clause. The ruling famously drew that right to privacy from the “penumbras” (or shadowy zones) cast by other specific guarantees in the Bill of Rights, including free speech (First Amendment), freedom from forced quartering of troops (Third Amendment), unreasonable searches and seizures (Fourth Amendment), forced self-incrimination (Fifth Amendment) and other unenumerated rights (Ninth Amendment).
Later verdicts would expand this right to privacy, including Roe v. Wade (1973), when the Court found that a woman’s right to an abortion fell within the zone of privacy protected under the 14th Amendment.
How “equal protection” has played a key role in Supreme Court decisions.
Originally aimed at guaranteeing all the rights of citizenship to former slaves, the Equal Protection Clause has played a leading role in many landmark civil rights cases. In perhaps the most famous, the U.S. Supreme Court ruled unanimously in the 1954 case Brown v. Board of Education that segregated school facilities were unconstitutional, as they failed to protect black and white students equally under the law.
The Equal Protection Clause would also play a crucial role in major Supreme Court rulings involving interracial marriage (1967’s Loving v. Virginia), affirmative action (1978’s Regents of the University of California v. Bakke) and same-sex marriage (2015’s Obergefell v. Hodges).
An 1886 headnote forever shifted the meaning of the 14th Amendment.
Corporations aren’t specifically mentioned in the 14th Amendment, or anywhere else in the Constitution. But going back to the earliest years of the republic, when the Bank of the United States brought the first corporate rights case before the Supreme Court, U.S. corporations have sought many of the same rights guaranteed to individuals, including the rights to own property, enter into contracts, and to sue and be sued just like individuals.
But it wasn’t until the 1886 case Santa Clara County v. Southern Pacific Rail Road that the Court appeared to grant a corporation the same rights as an individual under the 14th Amendment. The case is remembered less for the decision itself—the state had improperly assessed taxes to the railroad company—than for a headnote added to it by the court reporter at the time, which quoted Chief Justice Morrison Waite as saying: “The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.”
In later cases, this headnote would be treated as an official part of the verdict, and Waite’s conclusion reaffirmed in subsequent decisions by the Court, from an 1888 case involving a steel-mining company to the 1978 Bellotti decision, which granted corporations the right to spend unlimited funds on ballot initiatives as part of their First Amendment right to freedom of speech.
In the 2010 case Citizens United v. Federal Election Commission (FEC), the most sweeping expansion of corporate rights yet, the Supreme Court cited Bellotti in its highly controversial 5-4 ruling that political speech by corporations is a form of free speech that is also covered under the First Amendment. In 2014’s Burwell v. Hobby Lobby Stores, another 5-4 ruling by the Court granted the right of closely-held companies, which aren’t traded on the stock market, to file for exemptions to federal laws on religious grounds.
The legacy of the 14th amendment.
Not everyone agrees with this expanding interpretation of corporate personhood. In his dissent in Bellotti, Justice William H. Rehnquist wrote that corporations were “artificial” persons rather than “natural” persons, and that granting them the right to political expression could “pose special dangers in the political sphere.” Along similar lines, Justice John Paul Stevens argued in his dissent to Citizens United that “Corporations…are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.” And soon after the ruling, then-President Barack Obama said in his State of the Union address that the decision would “open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”
While cases like Citizens United and Hobby Lobby have brought the debate over corporate personhood squarely to the forefront of American political life, they’re really just the most recent chapters in a long story. Corporations have been pushing for more and more constitutional rights since the first years of our nation’s government, and so far there’s no indication they’ll be stopping anytime soon.
===
harv law rev of winkler bk we the corps
https://harvardlawreview.org/2019/05/corporate-personhood-v-corporate-statehood/
===
2x? 7/20 ggl search:
https://www.theatlantic.com/business/archive/2018/03/corporations-people-adam-winkler/554852/
// personhood? see alaso mcconn covid liability immunity
adam winkler
Somewhat counterintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. How exactly did corporations come to be understood as “people” bestowed with the most fundamental constitutional rights? The answer can be found in a bizarre—even farcical—series of lawsuits more than 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day.
That corporation was the Southern Pacific Railroad, owned by the robber baron Leland Stanford. In 1881, after California lawmakers imposed a special tax on railroad property, Southern Pacific pushed back, making the bold argument that the law was an act of unconstitutional discrimination under the Fourteenth Amendment. Adopted after the Civil War to protect the rights of freed slaves, that amendment guarantees every “person” the “equal protection of the laws.” Stanford’s railroad argued that it was a person too, reasoning that just as the Constitution prohibited discrimination on the basis of racial identity, so did it bar discrimination against Southern Pacific on the basis of its corporate identity.
The head lawyer representing Southern Pacific was a man named Roscoe Conkling. A leader of the Republican Party for more than a decade, Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him. (He remains the last person to turn down a Supreme Court seat after winning confirmation). More than most lawyers, Conkling was seen by the justices as a peer.
It was a trust Conkling would betray. As he spoke before the Court on Southern Pacific’s behalf, Conkling recounted an astonishing tale. In the 1860s, when he was a young congressman, Conkling had served on the drafting committee that was responsible for writing the Fourteenth Amendment. Then the last member of the committee still living, Conkling told the justices that the drafters had changed the wording of the amendment, replacing “citizens” with “persons” in order to cover corporations too. Laws referring to “persons,” he said, have “by long and constant acceptance … been held to embrace artificial persons as well as natural persons.” Conkling buttressed his account with a surprising piece of evidence: a musty old journal he claimed was a previously unpublished record of the deliberations of the drafting committee.
Years later, historians would discover that Conkling’s journal was real but his story was a fraud. The journal was in fact a record of the congressional committee’s deliberations, but, upon close examination, it offered no evidence that the drafters intended to protect corporations. It showed, in fact, that the language of the equal-protection clause was never changed from “citizen” to “person.” So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions. And prior to Conkling’s appearance on behalf of Southern Pacific, no member of the drafting committee had ever suggested that corporations were covered.
There’s reason to suspect that Conkling’s deception was uncovered back in his time too. The justices held onto the case for three years without ever issuing a decision, until Southern Pacific unexpectedly settled the case. Then, shortly after, another case from Southern Pacific reached the Supreme Court, raising the exact same legal question. The company had the same team of lawyers, with the exception of Conkling. Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal. Had those lawyers believed Conkling, it would have been malpractice to leave out his story.
When the Court issued its decision on this second case, the justices expressly declined to decide if corporations were people. The dispute could be, and was, resolved on other grounds, prompting an angry rebuke from one justice, Stephen J. Field, who castigated his colleagues for failing to address “the important constitutional questions involved.” “At the present day, nearly all great enterprises are conducted by corporations,” he wrote, and they deserved to know if they had equal rights too.
Rumored to carry a gun with him at all times, the colorful Field was the only sitting justice ever arrested—and the charge was murder. He was innocent, but nonetheless guilty of serious ethical violations in the Southern Pacific cases, at least by modern standards: A confidant of Leland Stanford, Field had advised the company on which lawyers to hire for this very series of cases and thus should have recused himself from them. He refused to—and, worse, while the first case was pending, covertly shared internal memoranda of the justices with Southern Pacific’s legal team.
The rules of judicial ethics were not well developed in the Gilded Age, however, and the self-assured Field, who feared the forces of socialism, did not hesitate to weigh in. Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”
So, with Field on the Court, still more twists were yet to come. The Supreme Court’s opinions are officially published in volumes edited by an administrator called the reporter of decisions. By tradition, the reporter writes up a summary of the Court’s opinion and includes it at the beginning of the opinion. The reporter in the 1880s was J. C. Bancroft Davis, whose wildly inaccurate summary of the Southern Pacific case said that the Court had ruled that “corporations are persons within … the Fourteenth Amendment.” Whether his summary was an error or something more nefarious—Davis had once been the president of the Newburgh and New York Railway company—will likely never be known.
Field nonetheless saw Davis’s erroneous summary as an opportunity. A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.
His gambit worked. In the following years, the case would be cited over and over by courts across the nation, including the Supreme Court, for deciding that corporations had rights under the Fourteenth Amendment.
Indeed, the faux precedent in the Southern Pacific case would go on to be used by a Supreme Court that in the early 20th century became famous for striking down numerous economic regulations, including federal child-labor laws, zoning laws, and wage-and-hour laws. Meanwhile, in cases like the notorious Plessy v. Ferguson(1896), those same justices refused to read the Constitution as protecting the rights of African Americans, the real intended beneficiaries of the Fourteenth Amendment. Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.
The day back in 1882 when the Supreme Court first heard Roscoe Conkling’s argument, the New-York Daily Tribune featured a story on the case with a headline that would turn out to be prophetic: “Civil Rights of Corporations.” Indeed, in a feat of deceitful legal alchemy, Southern Pacific and its wily legal team had, with the help of an audacious Supreme Court justice, set up the Fourteenth Amendment to be more of a bulwark for the rights of businesses than the rights of minorities.
---
https://www.alternet.org/2020/05/corporate-lawyers-openly-discuss-suing-nations-over-profits-lost-to-covid-19-measures-ticking-time-bomb/
Corporate lawyers openly discuss suing nations over profits lost to COVID-19 measures: ‘Ticking time bomb’
no lnx
Jake Johnson / Common Dreams May 21, 2020
:{
}:
Prominent corporate law firms representing major businesses in the United States, Italy, Spain, and other nations are openly discussing the possibility of companies using a secretive and notorious legal process to sue countries over future profits lost due to government efforts to combat the coronavirus pandemic.
On Monday, the non-profit research group Corporate Europe Observatory (CEO) documented numerous examples of high-powered corporate law firms—including Ropes & Gray, Alston & Bird, and Quinn Emanuel Urquhart & Sullivan—publicly licking their chops over the lucrative opportunity presented by the Covid-19 crisis and government attempts to fight it.
Ropes & Gray wrote in an alert on its website on April 28 that “for companies with foreign investments,” the investor-state dispute settlement (ISDS) system enshrined by thousands of trade agreements across the world “could be a powerful tool to recover or prevent loss resulting from Covid-19 related government actions.”
“Governments have responded to Covid-19 with a panoply of measures, including travel restrictions, limitations on business operations, and tax benefits,” the alert reads. “Notwithstanding their legitimacy, these measures can negatively impact businesses by reducing profitability, delaying operations, or being excluded from government benefits.”
:{
}:
Lawyers from Sidley, a firm headquartered in Chicago, wrote on May 8 that “where a company prevails in its investment treaty claims, it may be able to recover all the losses that flowed from the government measures that damaged the company.”
CEO noted that the ISDS system hands “sweeping powers to foreign investors, including the peculiar privilege to sue states in an arbitration court system.”The ISDS chapter of the Trans Pacific Partnership was one of the most widely denounced components of the 12-nation trade deal that was ultimately never ratified by the U.S. Congress.
“In ISDS tribunals companies can claim dizzying sums in compensation for government actions that have allegedly damaged their investments, either directly through expropriation or indirectly through regulations of virtually any kind,” CEO wrote. The number of ISDS suits has skyrocketed in the last decade, and so has the amount of money involved.”
The research group highlighted several scenarios in which corporations could challenge countries over coronavirus-related government actions, including lowering drug prices, reducing rent and utility bills, temporarily nationalizing private hospitals, and providing access to clean water.
An Alston & Bird lawyer said during a recent webinar that “governments… forcing producers to sell drugs at significantly discounted prices and/ or taking the intellectual property for themselves and/or disseminating that intellectual property to third parties without permission”constitute “takings”that could be challenged under existing investment treaties.
“The lawyers’ enthusiasm is not based in fantasy,” CEO wrote. “In the past 25 years over 1,000 known investor-state lawsuits have been filed. Investors have won a significant amount of ISDS claims as arbitral tribunals ruled that it was illegal to interfere with prices of essential goods, restrict or tax the export of vital products, roll back incentives to investments—and the list goes on.”
“As states struggle with the pandemic and with rebuilding their economies,” the group warned, “ISDS cases could mean huge extra financial burden.”
CEO
@corporateeurope
In the midst of the #COVID19 crisis, corporations are preparing to sue states over pandemic measures.
Our latest report reveals how lawyers urge big business to defend its profits and challenge the emergency measures with #ISDS cases. https://corporateeurope.org/en/2020/05/cashing-pandemic-how-lawyers-are-preparing-sue-states-over-covid-19-response-measures … #stopISDS
View image on Twitter
David Dayen, executive editor of The American Prospect, wrote Wednesday that progressives have long viewed ISDS as a disastrous system that allows powerful corporations to “lock in a low level of regulation or extract cash if any country dares to try to protect their citizens.”
“It’s so unbelievably shocking to see corporate lawyers actively discussing having foreign investors use ISDS to challenge countries over their coronavirus lockdown measures, and try to extract ‘expected future profits’ from them,” Dayen wrote.
“There is no example yet of a foreign investor filing such a claim,” Dayen added. “This bears watching, or maybe a pre-emptive strike to defuse this ticking time bomb. Incidentally, the Columbia Center on Sustainable Investment has proposed an ISDS moratorium during the pandemic.”
David Dayen
@ddayen
If this is at all true it means that corporations will sue in extrajudicial super-courts for the expected profits they had to forego when countries put lockdown measures in place.
Oh. My. God.https://corporateeurope.org/en/2020/05/cashing-pandemic-how-lawyers-are-preparing-sue-states-over-covid-19-response-measures …
Cashing in on the pandemic: how lawyers are preparing to sue states over COVID-19 response measures
As governments take action to fight the COVID-19 pandemic and prevent economic collapse big law firms urge corportions to challenge governments' emergency measures in order to defend its profits. In...
corporateeurope.org
The Transnational Institute (TNI), a think tank based in Amsterdam, is calling on governments to “take urgent action to make sure that transnational corporations and investment lawyers do not become beneficiaries of this pandemic, at the expense of people’s well-being and health.”
In an April 20 report, TNI urged nations to:
Suspend all trade and investment treaty negotiations;
Take all necessary steps to terminate (unilaterally or multilaterally) existing treaties;
Institute a comprehensive review (cost-benefit analysis) of their current and planned investment agreements;
Withdraw consent to ISDS, to limit immediate exposure to investor lawsuits;
Default on the payment of outstanding debts as a result of ISDS awards. Or, at least, discuss ISDS debt relief and/or debt restructuring with creditors.
“Just as the pandemic is revealing profound health inequities and the dangers of agro-industrial food systems, it is also showing the dangers of trade and investment systems that put corporate profits above health and life,” TNI researchers wrote. “There is no place for trade and investment agreements that allow investors to profit from suing countries in crisis or seeking to cash-in from scarce public resources.”
===
==
https://www.alternet.org/2019/10/republicans-fantasy-constitution-trumps-attack-on-the-constitution-is-nothing-new-for-the-right-which-has-long-tried-to-write-its-own-version/
no lnx
Republicans’ fantasy Constitution: Trump’s attack on the Constitution is nothing new for the right — which has long tried to write its own version
Written by Paul Rosenberg / Salon October 28, 2019
Donald Trump’s recent criticism of the “phony emoluments clause,” used in defense of his since-abandoned G7 scam, was striking for its bluntness. But it’s part of a long history of conservatives flagrantly ignoring the actual Constitution and substituting an imaginary version in its place. At Vox, Ian Millhiser thoroughly debunked the notion that Trump wasn’t violating the Constitution by seeking to hold a summit meeting at his own hotel, including reference to work by Georgetown’s John Mikhail, whose examination of 40 different dictionaries made mincemeat of any “public meaning” argument to try to defend Trump.
Of course Trump doesn’t care about such arguments, and doesn’t rely on typical conservative legal arguments either. But he does rely on the underlying conservative impulse and assumption that the Constitution means whatever he wants it to mean, and that anyone who disagrees with him is subversive.
This view can be found in the so-called “constitutional sheriff’s” movement, which believes that county sheriffs get to pick and chose which laws to enforce and can keep federal law enforcement agents out of their counties. Tellingly, the word “sheriff” — like the word “God” — doesn’t even appear in the Constitution. Trump’s favorite convict sheriff, Joe Arpaio of Arizona, is a member of this movement. The far-right “Oathkeepers” movement has a similar fantasy-based view of the special constitutional status of anyone who’s sworn an oath to serve the government — and who then decides they’ve got a secret identity as a Supreme Court justice.
But don’t be fooled into thinking this is just a fringe conservative view. Dangerous and troubling as these views and that organization may be, it’s the conservative constitutional fantasies from the actual Supreme Court that have done far more damage to our democracy. Take, for example, the Dred Scott decision of 1857, written by Chief Justice Roger Taney, which held that black people had no constitutional rights because when it was adopted, they were regarded as “so far inferior that they had no rights which the white man was bound to respect.” What’s more, Taney claimed, “This opinion was at that time fixed and universal in the civilized portion of the white race.”
That was a lie, as I explained here, based on a fantasy past. In the real past, slavery was abolished in the Vermont Republic in 1777, well before the Constitution was drafted, and Quock Walker sued for and won his freedom under the Massachusetts Constitution in 1781 — again, before the Constitution was drafted.
Walker’s case deserves closer inspection to show specifically how wrong Taney was. Walker had been promised his freedom, but his master died before the promised date, and his widow married a man who not only refused to free Walker, but beat him as well. Walker won not one, but two civil jury trials, both of which affirmed his freedom and awarded monetary damages, after which the man who had abused him was convicted in criminal trial.
In his charge to the jury, Chief Justice William Cushing stated that, “slavery is … as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.” That unambiguous recognition of “the granting of rights and privileges” directly contradict Taney’s false premise in Dred Scott. The “fixed and universal” opinion he wrote about was a racist fantasy.
There was also a future fantasy involved in the Dred Scott decision — the fantasy that the decision would put an end to abolitionism,, and secure the institution of slavery once and for all. Instead, it only fueled the dynamic which eventually brought the Civil War, which was initiated by the South, based on yet another fantasy — the one about absolute states’ rights (except, of course, when it came to forcing Northern states to return escaped slaves.)
The fantasy of corporate personhood
After that terrible struggle, we passed the Civil War amendments to firmly establish the full citizenship rights of black Americans, which in turn would become the subject of multiple conservative fantasies, primarily involving the 14th Amendment. First was the fantasy — still haunting us today — that the 14th Amendment established “corporate personhood” and was actually intended to protect corporations as much as freed slaves and their descendants. This fantasy, too, came to us from the Supreme Court, though in a remarkably muddled way, asUCLA law professor Adam Winkler describes here.
In Santa Clara County v. Southern Pacific Railroad Company, the court reporter (a former railroad president) inserted a headnote saying that justices agreed that corporations were people under the meaning of the 14th Amendment, even though the decision itself said nothing at all on the subject. To this day, that case is mistakenly cited as precedent establishing corporate personhood, despite its silence. One of the justices hearing the case, Stephen J. Field, got the ball rolling, as Winkler explains:
A few years later, in an opinion in an unrelated case, Field wrote that “corporations are persons within the meaning” of the Fourteenth Amendment. “It was so held in Santa Clara County v. Southern Pacific Railroad,” explained Field, who knew very well that the Court had done no such thing.
That’s only one facet of how muddled the story is, as Winkler explains. The idea was first advanced in 1882 by Roscoe Conkling, a lawyer for Southern Pacific who was the last living member of the drafting committee responsible for writing the 14th Amendment. Conkling told the Court that the drafters had altered the wording, replacing “citizens” with “persons” specifically to cover corporations as well. There’s no other evidence supporting this claim, and substantial reason to doubt it. An unpublished journal of the committee’s deliberations that Conklin offered in support was later found to completely contradict his claim: The language had never been changed. “So far as anyone can tell, the rights of corporations were not raised in the public debates over the ratification of the Fourteenth Amendment or in any of the states’ ratifying conventions,” Winkler notes, nor had anyone else on the committee ever made such a claim.
Even at the time, Conkling’s account was suspect, according to Winkler. He made the argument in a case that languished for three years before Southern Pacific suddenly settled it, after which the railroad brought a nearly identical case to the Supreme Court, with the same legal team — except for Conklin. “Tellingly, Southern Pacific’s lawyers omitted any mention of Conkling’s drafting history or his journal,” Winkler notes. “Had those lawyers believed Conkling, it would have been malpractice to leave out his story.”
So everything else was premised on Conklin’s lie, which even his own colleagues didn’t believe. But there were so many other bad actors involved, it was like a Trump Cabinet meeting. In fact, Field sounded just like one of them, as Winkler describes:
Taxing the property of railroads differently, he said, was like allowing deductions for property “owned by white men or by old men, and not deducted if owned by black men or young men.”
In short, this was a collective fraud perpetrated by a whole collective of scoundrels, creating a fantasy version of the 14th Amendment that’s become deeply and profoundly embedded in American law. It was famously used, Winkler notes, to strike down numerous economic regulations, including federal child labor laws, zoning laws, and wage-and-hour laws,” at the same time that Plessy v. Ferguson (the next case on our list) refused to apply the 14th Amendment to protect the rights of African Americans:
Between 1868, when the amendment was ratified, and 1912, the Supreme Court would rule on 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations.
More white supremacist fantasies
As we’ll see below, another strange wrinkle emerged in the modern era: for the Supreme Court’s hardcore conservatives, the 14th Amendment’s Equal Protection clause exists almost solely to strike down affirmative action. But first, we need to turn to Plessy v. Ferguson, in which the Court ruled that segregated facilities (supposedly “separate but equal”) did not deprive blacks of equal protection under law. It’s a much more ornate and convoluted lie than the one in Dred Scott, as I explained here, but to boil things down into basic fantasies, we need consider only three. First was the fantasy that the problem was all in black people’s heads:
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Second came the exact opposite fantasy, that black inferiority was an immutable fact that human laws could do nothing to alter:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.
Third was the fantasy that either nothing needed to be done, or that nothing could be done:
If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.
Of course, this last was pure sophistry. The civil and political rights were obviously not equal, which was why the case had been brought in the first place. And that inequality perpetuated social inequality — specifically via segregation — as indeed was the whole point. It took decades of racist terror to get to the point where such an absurd concoction of fantasies could be propounded with such seriousness. The court pretended that black civil and political rights would still be protected, even after three decades of white racist violence proved otherwise, and that they could be neatly severed from “social rights” such as riding in an integrated railroad car — that being the issue at hand in Plessy.
The fantastical nature of the Plessy decision is thrown into sharp contrast by the bracing realism of John Marshall Harlan’s dissent. “The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution,” Harlan wrote. “It cannot be justified upon any legal grounds.” The phrase “badge of servitude” comes directly from the 13th Amendment, underscoring the broader context that gave meaning to the 14th Amendment’s Equal Protection Clause.
Next, fast forward a century to Bush v. Gore, the case that settled the 2000 presidential election. In that instance, conservative justices who had never applied the Equal Protection Clause to defend black voting rights suddenly discovered its overwhelming importance in protecting the rights of ballots to be counted equally — by paradoxically ensuring that no ballots were counted at all! There was never any thought of who the voters casting the ballots might be, much less whether they could possibly constitute a class, as Equal Protection jurisdiction normally requires. It was not just a fantasy, but a farce.
Rather than dig into the details of the case, I’ll merely draw on a big-picture observation made by Geoffrey R. Stone, an editor of the Supreme Court Review, whom I quoted from here in July. Stone noted that the three hardcore conservatives on the court at that time — William Rehnquist, Antonin Scalia and Clarence Thomas—had cast 65 votes in non-unanimous decisions interpreting the Equal Protection Clause in the previous decade, 19 of which involved affirmative action. Collectively, they’d cast exactly two votes finding Equal Protection Clause violations in those cases — one less vote in an entire decade than they cast in the Bush v. Gore decision. Summing up, Stone wrote:
What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather distinctive view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes — to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.
Put simply, the Equal Protection Clause those justices recognized does not exist. It was a bad-faith fantasy of their own invention.
Fantasies of guns and God
Race is clearly a major driver of conservative constitutional fantasies. But it’s not the only one, as shown by the Court’s Heller decision, the first ever recognize an individual right to gun ownership in the Second Amendment — a position that former Chief Justice Warren Burger (a Republican appointee) once called “a fraud on the American public.” The decision by Antonin Scalia was so roundly criticized that Scalia co-authored a book in its defense, “Reading Law: The Interpretation of Legal Texts,” which was ripped to shreds by then-appeals court judge Richard Posner, in a devastating review titled “The Incoherence of Antonin Scalia.” To be clear, both Burger and Posner were highly respected conservative jurists. But they were not fantasists when it came to the Second Amendment.
Posner has a great deal to say about Scalia more generally, but my point is simple: Scalia claimed to be a textualist, but he completely ignored the following italicized text of the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
That text clearly articulates a collective need, thereby justifying a collective right. This is how the Second Amendment had always been understood, until, as Michael Waldman explained, the National Rifle Association embarked on a multi-decade propaganda campaign to brainwash the American public. Brainwashing can effectively spread a fantasy. But it is powerless to transform it into truth.
Just as the NRA waged a decades-long propaganda war to push their constitutional fantasy through the Supreme Court, many on the religious right are organizing to do the same with the First Amendment now. They’d like to use their fantasy version of “religious freedom” as a license to discriminate, and ultimately create a two-tiered society, just like the one enshrined long ago by Plessy. They’ve at least gotten their foot in the door with decisions like Hobby Lobby and Masterpiece Cakeshop.
Progressive activists, both secular and religious, have been fighting back in recent years, particularly focused on reclaiming the true meaning of Religious Freedom Day, as I’ve written about here in 2016, 2017, 2018 and 2019. I’ve also written repeatedly about Project Blitz (here, here, here and here), a state-level campaign employing this “religious freedom” fantasy to advance a three-stage, state-level theocratic agenda, first uncovered by researcher Frederick Clarkson last year. All this is embodied in a more sweeping fantasy of America as a Christian nation, a fantasy thoroughly debunked by Andrew Seidel in “The Founding Myth: Why Christian Nationalism is Un-American” (Salon interview here), and challenged on the ground by a new initiative, Christians Against Christian Nationalism (Salon story here). Directly confronting the constitutional fantasy aspect, the third part of Seidel’s book is entitled “The Ten Commandments versus the Constitution,” and it shows how each has elements opposed to principles of the Constitution. The Supreme Court has yet to write this fantasy into law, but shown by the examples above, it would hardly be out of character for them to do so.
Beyond the examples cited — and others like them — there’s another way in which conservative constitutional fantasies lead us astray, not at the level of individual decisions, but at the level of judicial philosophy. I already mentioned Posner’s refutation of Scalia’s version of textual originalism, but that’s only one version of the broader originalist approach, which Georgia State law professor Eric Segall dismantled in his 2018 book “Originalism as Faith,” which I wrote about here. In Segall’s view, originalism meets a lot of psychological needs, not just for judges, but for the broader public as well:
When the justices connect us to our past by supporting their decisions with persuasive evidence of prior agreements, they cultivate and maintain a distinctively American approach to hard public policy questions.
In addition, judicial appeals to original meaning might suggest that the justices are following the decisions of the founders, not imposing their own personal values. The justices want the American people to have faith that their decisions are grounded in prior law, not personal predilection, and references to originalist sources make that goal easier.
It’s a soothing “just-so story,” in other words. But it utterly fails in practice, as Segall told me in our interview:
Virtually every constitutional law case [decided by the Supreme Court] involves text that is imprecise, unclear, vague — equal protection, due process, establishment, unreasonable search and seizure, whatever. And as applied to the facts of any modern case, the history behind that is going to be extremely contested, even if we assume its relevance, which I don’t necessarily assume.
Thus, originalism is worthless at best. At worst, it’s a smokescreen for bad decisions:
The main argument in my book is that originalism doesn’t do anything. It’s never done anything. Forget about it. We should stop pretending text, history and precedent dictate Supreme Court decisions, and we should make [the justices] explain exactly why they’re doing what they’re doing — for transparency purposes.
But transparency is the last thing that the conservative peddlers of constitutional fantasies want. They didn’t want it in Dred Scott, nor in Plessy, Santa Clara, Heller or Bush v. Gore. At bottom, President Trump’s “phony emoluments clause” was nothing new for conservatives. In fact, it was part of a very long tradition. You might even say it was evidence that he’s a true conservative after all!
Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.
==
===
https://www.alternet.org/2019/09/group-of-50-legal-scholars-call-for-28th-amendment-to-overturn-citizens-united-decision-a-root-cause-of-dysfunction-in-our-political-system
no lnx
Group of 50 legal scholars call for 28th Amendment to overturn Citizens United: ‘A root cause of dysfunction in our political system’
Written by Alex Henderson September 18, 2019
When liberals and progressives cite former Supreme Court Justice Anthony Kennedy’s best and worst rulings of the Barack Obama era, they typically praise his support for same-sex marriage in Obergefell v. Hodges while slamming him for his support for unlimited corporate donations in Citizens United v. the Federal Election Commission. The U.S. Supreme Court obviously isn’t going to be overturning Citizens United anytime soon given its swing to the right, but a group of 50 legal experts have another idea for ending that decision: a 28th Amendment to the U.S. Constitution.
The legal experts, according to the Law & Crime website, have signed a joint letter they plan to release on Constitution Day that calls for a constitutional amendment ending Citizens United. Those who have signed the letter range from former Federal Election Commission Chairman Trevor Potter to Zephyr Teachout (a law professor at Fordham University in New York City) to two professors at the Harvard Law School: Lawrence Lessig and Laurence Tribe.
The letter states, “As attorneys, law professors and former judges with a wide variety of political beliefs and affiliations, we are convinced that our nation’s current election spending framework is a root cause of dysfunction in our political system and requires fundamental reform.”
Jeff Clements, an anti-Citizens United activist, discussed the campaign to end that hated decision with Law & Crime. Clements is the president of American Promise, a nonprofit that has been fighting to end Citizens United — which struck down parts of the Bipartisan Campaign Reform Act of 2002, a.k.a. the McCain-Feingold Act, and equated large campaign donations with free speech.
Clements told Law & Crime, “The Supreme Court has really made a mess of the First Amendment with the theory that money — unlimited money — is an expression of free speech. What this amendment would do is put us back on a strong foundation of free speech for all Americans, not just those with unlimited wealth.”
Clements doesn’t view Citizens United as a victory for free speech but rather, as suppression of free speech. And he said of Citizens United opponents, “We are advocates of free speech and the First Amendment. The free speech argument is actually on our side. Most Americans have less free speech now, when money dominates the system. When money is the dominant currency of who can run for office and what candidates are taken seriously — and when the money is coming from fewer and fewer sources — we have fewer voices. Most Americans cannot participate.”
According to Clements, “What we’re trying to show is that the Constitution wasn’t finished 243 years ago.”
In Congress, a bill calling for a 28th Amendment to overturn Citizens United has been introduced by Democrat Ted Deutch and Republican John Katko in the House of Representatives and by Democrat Tom Udall in the Senate.
==
https://theintercept.com/2019/08/29/lake-erie-bill-of-rights-ohio/
no lnx
HOW OHIO’S CHAMBER OF COMMERCE KILLED AN ANTI-POLLUTION BILL OF RIGHTS
H. Claire Brown
August 29 2019, 5:00 a.m.
In partnership with
EARLIER THIS SUMMER, environmental activists in Ohio were alarmed by the passage of a mysterious state budget amendment that would close a new avenue for residents to sue polluters. The provision invalidated a landmark anti-pollution initiative passed by Toledo voters just a few months before. Now, emails obtained in a public records request reveal that theOhio Chamber of Commerce secured the cooperation of a key Republican lawmaker in a successful effort to slip the amendment into an appropriations bill at the eleventh hour.
The emails depict the chamber’s environmental policy director requesting a last-minute meeting with state Rep. Jim Hoops to discuss the Lake Erie Bill of Rights, the newly minted ballot initiative allowing citizens to sue polluters on behalf of Lake Erie. A legislative aide responded quickly, scheduling a same-day meeting. Despite the chamber director’s admission that his proposal would need to be submitted after the legislature’s deadline, the aide produced draft amendment language to share with him three weeks later. The chamber’s subsequent revisions made their way into the final bill, effectively nullifying the Lake Erie Bill of Rights.
“This shows the influence of the Chamber of Commerce writing our laws and undermining the democracy of the people of Toledo,” said Bill Lyons, a board member of the Ohio Community Rights Network, an environmental advocacy organization. After the May vote, Lyons filed a series of public records requests to try to figure out which lawmaker introduced the amendment. The emails were provided to The Intercept and The New Food Economy by the Community Environmental Legal Defense Fund, an affiliate of the Ohio Community Rights Network.
[pix FILE - In this Aug. 3, 2014 file photo, a sample glass of Lake Erie water is photographed near the City of Toledo water intake crib on Lake Erie, off the shore of Curtice, Ohio. Scientists are predicting a "significant" algae bloom will form this summer on western Lake Erie, a continuing health hazard in a region where algae toxins forced a temporary tap water shutdown in 2014. (AP Photo/Haraz N. Ghanbari, File) A glass of water sampled near Toledo’s water intake crib on Lake Erie, off the shore of Curtice, Ohio, on Aug. 3, 2014. Photo: Haraz N. Ghanbari/AP]
IN FEBRUARY, MORE than 60 percent of participants in a special election in Toledo voted to establish a Bill of Rights for Lake Erie. It was a unique ballot question that would grant Lake Erie the right to “exist, flourish, and naturally evolve.” The intent was to give Lake Erie and its human allies legal standing to file lawsuits against polluters.
Organizers in Ohio launched their efforts to pass the initiative after a toxic algal bloom — caused by fertilizer and manure runoff from upstream farms — rendered Toledo’s water undrinkable and largely unusable (some residents were advised not to shower) for a few days in 2014. Tish O’Dell, a state organizer for the Community Environmental Legal Defense Fund, said residents spent two years trying to persuade the state government to take action to prevent future issues.
In Ohio, however, the farm runoff largely responsible for polluting Lake Erie is minimally regulated. Farmers in the state also benefit from key legal protections that limit their vulnerability to pollution-related lawsuits.Ohio has a so-called right-to-farm law, which dramatically limits neighbors’ ability to win lawsuits alleging that farm pollution unfairly impacts their quality of life. (Hoops appears to have introduced another amendment that expands the definition of farmland protected under the state’s right-to-farm law; that amendment passed this summer as well, further narrowing the legal pathways advocates might use to limit agricultural runoff.) And at the federal level, the Clean Water Act has long exempted most agricultural operations from robust regulation.
For all these reasons, advocates came to believe that existing legal frameworks would never sufficiently protect the lake and those who live near it. By 2016, they were ready to try something new. After O’Dell and her colleague Thomas Linzey gave a presentation on so-called rights-of-nature laws at Bowling Green University, Toledo activists approached them about devising a plan for Lake Erie. The group headed to a nearby pub.
“That’s actually how the Lake Erie Bill of Rights hatched,” O’Dell said. “It was on a cocktail napkin at the bar.”
After its passage, the Lake Erie Bill of Rights was immediately challenged in federal court. The next day, the Drewes Farm Partnership had filed a 24-page lawsuit arguing that protections for the lake could mean financial ruin for the farm’s business. That lawsuit is ongoing. Then, in May, the eleventh-hour amendment invalidating the lake’s rights found its way into the House version of the state’s budget.
The Chamber of Commerce asked for the addition of text that would more directly refute the Lake Erie Bill of Rights.
It all started with an email from the Ohio Chamber of Commerce. The chamber’s director of energy and environmental policy, Zack Frymier, wrote to request a meeting with Hoops, the state House representative, on April 11, a few weeks before the vote. (Hoops is chair of the Ohio House Finance Subcommittee on Agriculture, Development, and Natural Resources.)
“I’m hoping to find some time (like everyone else) to run something by Chairman Hoops regarding the Lake Erie Bill of Rights that passed in Toledo in February,” Frymier wrote. “We have some language that we’d request to be considered for the budget. Though obviously it would have to be submitted after tomorrow’s deadline we’d still like to have a conversation.”
A legislative aide replied promptly, arranging a meeting with Hoops for 4:00 p.m. that day. Despite the short notice — it was already nearly 3:00 p.m. — Frymier quickly and enthusiastically responded that he’d be there.
A few weeks later, the aide got back to Frymier with draft text of the amendment, asking if the wording made sense to him. Frymier then asked for the addition of text that would more directly refute the Lake Erie Bill of Rights.
“Language in this amendment stating that [nature and ecosystems] do not have standing is essential to what we’re trying to accomplish,” Frymier wrote on May 2.
The amendment’s final text includes the additional statement Frymier asked for: “Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas.”
The amendment was reported by local media on May 8. The next day, the state House passed its version of the bill. Lyons, the Community Rights Network board member, later testified in front of the state Senate, asking legislators to strike the amendment from the final budget. His efforts were unsuccessful and, after a few weeks of negotiation, Republican Gov. Mike DeWine signed the measure into law.
Lyons said he was surprised by the degree of collaboration between the Chamber of Commerce and Hoops’s subcommittee. “The fact that they would run that language specifically by them — I mean, who else gets that opportunity?” he said. (Neither the Ohio Chamber of Commerce nor Hoops’s office responded to requests for comment.)
Business advocates — primarily the fossil fuel giant BP, which has fracking interests in the state — spent more than $300,000 to campaign against the Lake Erie Bill of Rights prior to its passage in Toledo. The coalition advocating in its favor, Toledoans for Safe Water, spent less than $6,000, according to Great Lakes Now.
Municipalities around the nation have been slowly adopting rights-of-nature ordinances for more than a decade. Pittsburgh banned fracking using this legal framework in 2010. More recently, a county in Oregon voted to ban aerial pesticide spraying the same way.
Rights-of-nature laws likely face a long road ahead. If the Lake Erie Bill of Rights is any indication, many may be tied up in lawsuits for years to come.
For O’Dell, the Ohio organizer, the Lake Erie Bill of Rights is already a win regardless of its fate. “The people kept fighting to get it on the ballot. They defeated big corporate money. They won, and they’re still fighting,” she said. “So I don’t care what happens — they have ignited interest all around the world.”
===
==
The following is about 2 paragraphs from Justice Douglas's dissenting opinion. I bolded 2 sentences that are the strongest statements.
https://caselaw.findlaw.com/us-supreme-court/337/562.html
Wheeling Steel Corporation v. Glander, 377 U.S. 562 (1949)
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
It has been implicit in all of our decisions since 1886 that a corporation is a 'person' within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara Co. v. South. Pacific R. Co., 118 U.S. 394, 396 , so held. The Court was cryptic in its decision. It was so sure of its ground that it wrote no opinion on the point, Chief Justice Waite announcing from the bench:
'The court does not wish to hear arrgument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.'
There was no history, logic, or reason given to support that view. Nor was the result so obvious that exposition was unnecessary.
Since 1886 the Court has repeatedly struck down state legislation as applied to corporations on the ground that it violated the Equal Protection Clause. Every one of our decisions upholding legislation as applied to corporations over the objection that it violated the Equal Protection Clause has assumed that they are entitled to the constitutional protection. But in those cases it was not necessary to meet the issue since the state law was not found to contain the elements of discrimination which the Equal Protection Clause condemns. But now that the question is squarely presented I can only conclude that the Santa Clara case was wrong and should be overruled.
Cheers,
Judy
==
https://ratical.org/corporations/Dartmouth.html
| You've Heard of Santa Clara, Now Meet Dartmouth | by Peter Kellman | By What Authority (Vol. 2, No. 2 - Spring 2000) | from the PROGRAM ON CORPORATIONS, LAW & DEMOCRACY |
The purpose of this article is to introduce our readers to a key Supreme Court case from a working class historical perspective. The Dartmouth College case wrote into the Constitution the propertied class's vehicle, the corporation, for concentrating economic and political power. Since few people today examine the Court's actual decisions (which we will do in future BWAs), what counts is how Supreme Courts that followed Chief Justice Marshall's Court of 1819 interpreted Marshall, and Justice Story's supporting opinion, to foster powerful anti-democratic realities:
- gifts of special privilege for the rich to organize their own economic and political institutions, fostered and protected by "the entire strength of the nation;"
- denials of common people's fundamental right and power to organize their institutions.
WE HAVE A GREAT SYSTEM of government. Amending the Constitution is a very different process for wealthy citizens as opposed to the majority of us. If the common people want to change the US Constitution we lobby Congress and get two-thirds of both houses to propose an amendment which must then be approved by three-quarters of the state legislatures. Interestingly, freedom of speech, freedom of the press, freedom from unreasonable search and seizure, the right to a speedy trial, trial by jury, the ending of slavery, the right to vote, and the requirement that US Senators be elected by the people rather than appointed by state legislatures all came into being through the amendment process.
The wealthy group of white men who gathered in a closed meeting in 1787 to write our Constitution didn't think any of these rights were important enough to be included. It was left to Antifederalists and mass movements of African Americans, Populists, workers and women -- mass movements of the people -- to amend the constitution in ways they hoped would protect the majority of people from a wealthy minority.
There are four ways to change the Constitution: first is by revolution; a second was mentioned above; the third is through a Constitutional convention which can be called by two-thirds of the states; and the fourth is by a process called judge-made law.
A good example of judge-made law is the Santa Clara case of 1886, in which the Supreme Court ruled that a corporation is a person under the law and is therefore entitled to equal protection under the Fourteenth Amendment. [1]
An earlier example of judge-made law is the Dartmouth College case of 1819.[2] The word corporation is not mentioned in the Constitution or in any of its 27 amendments. However, Article 1, Section 10 of the US Constitution, known as the Contracts Clause, declares that no state shall make any "Law impairing the Obligation of Contracts . . ." Chief Justice Marshall, writing for the majority in the Dartmouth case, stated in reference to the corporate status of the college that; "The Opinion of the Court, after mature deliberation, is, that this is a contract, the obligation of which cannot be impaired, without violating the Constitution of the United States." That is, a corporation is a contract and therefore is protected by the Constitution.
- * *
BUT THERE IS MORE TO THE STORY, a story which laid the legal groundwork for the growth of corporate power at the expense of public education and with it the future of our democracy.
In 1816, a class of small property owners and skilled artisans, who believed in the vision of Thomas Jefferson and many other founding revolutionaries that the United States should have a republican form of government, elected a like-minded governor in the State of New Hampshire. Now the basis of Jeffersonian republicanism rests on a society primarily composed of small farmers who own their own land. An important component of republican philosophy is that a republican form of government requires an educated populace. These republicans wanted to insure that a college education would be available for their children and that the content of education would be determined by a public process, not a private one.
However, colleges during that period were mainly private schools such as Yale, Harvard and Dartmouth, holdovers from the colonial days. These schools were linked to the past by class and religion. They were, by design, not republican in nature. Their purpose was to perpetuate the monarchy and class structure of the British Empire, impose Christianity on Native populations, train local clergy to keep the new converts in line, and educate the children of the elite.
Dartmouth College had been chartered by the King of England in 1769 as an Indian Charity School "with a view to spreading the knowledge of the great Redeemer among their savage tribes." [3] It soon evolved into a school "to promote learning among the English, and be a means to supply a great number of churches . . . with a learned and orthodox ministry." [4]
After the defeat of the British, American revolutionaries and Jeffersonian republicans led a movement to turn the colonial colleges into public schools. For example, the Colony of Pennsylvania had granted a charter to the University of Pennsylvania in 1755, under which the university would be run by a self-perpetuating board, similar to the Dartmouth College board. Following the revolution in 1779 the legislature revoked the charter of the private University of Pennsylvania and in its place established the public University of the State of Pennsylvania.
In New Hampshire the newly elected Governor William Plumer, an ally of Thomas Jefferson, introduced "An Act To Amend The Charter And Enlarge And Improve The Corporation of Dartmouth College." The text of the law, passed on June 27, 1816, begins:
"Whereas knowledge and learning generally diffused through a Community are essential to the preservation of free Government, . . . extending the opportunities and advantages of education is highly conducive to promote this end . . ."
The legislature made private Dartmouth College into public Dartmouth University and ordered the new university to set up public colleges around the state.
Governor Plumer promoted the change, arguing that the original provisions of Dartmouth College "emanated from royalty and contained principles . . . hostile to the spirit and genius of free government." [5] However, the trustees of Dartmouth objected to the charter change and took the state to court.
The New Hampshire Supreme Court ruled that the legislature had the authority to change the charter of the college,
"because it is a matter of too great moment, too intimately connected with the public welfare and prosperity, to be thus entrusted in the hands of a few. The education of the rising generation is a matter of the highest public concern, and is worthy of the best attention of every legislature." [6]
The decision was appealed to the US Supreme Court, which reversed the state court. As a result, the corporate form was given Constitutional protection and the formation of public colleges in the United States was halted for 50 years.
- * *
THE US SUPREME COURT was not interested in education. The Court was set up to be the final protector of a propertied class. Think of it from a working class perspective. A group of wealthy white men goes behind closed doors for a couple of months and comes up with a form of government to protect and promote whom? The people they fear most: slaves, women, indentured servants, Native people and people with little or no property? Not likely.
The founders set up a government with a legislature composed of two bodies: the House of Representatives, elected by the people (the people at that time being, for the most part, white men who owned property), and the Senate with members appointed by state legislatures. So, if the "people's house" passed legislation that benefited the common people at the expense of the ruling elite, it could be prevented from becoming law by the Senate. And, should legislation promoting the interests of the majority over the interests of the wealthy minority be passed in both House and Senate, there was a president elected by an electoral college, not directly by the people, who could veto the legislation. If all this failed, and the House, Senate and president or a state legislature passed laws detrimental to the ruling elite, the case against that legislation could be taken to the Supreme Court. The justices of this court are lawyers appointed for life, lawyers who, for the most part, had distinguished careers representing the wealthy.
Imagine how the Supreme Court would have ruled in Dartmouth if it were composed of shop stewards, teachers, homemakers and librarians. But it wasn't. The Supreme Court delivered for the ruling elite, arguing that a corporation is a private contract not a public law. The Court decreed that although the state creates the corporation when it issues a charter, it is not sovereign over that charter but is simply a party to the contract. All of which means that the corporation is protected from state interference by the Contracts Clause of the Constitution because the relationship is a private not a public one. And so Dartmouth University, a public school, once again became private. The republican notion that "We the People" required an education in order to have a truly republican form of government was defeated, at least temporarily.
- * *
TEN YEARS LATER, Pennsylvania workers declared:
"Let the productive classes, then, unite for the preservation of their free institutions, and by procuring for all the children in the Commonwealth Republican Education, . . . Our government is republican; our education should be equally so." [7]
Public education and the ten-hour day were the two goals of the labor movement in the 1830s. These two demands, made by working people, brought to the fore a question we should be asking today: if we have to spend all our hours working to make ends meet, when will we do the work of self-governance?
In 1886 the US Supreme Court ruled in the *Santa Clara v. Southern Pacific Railroad* case that corporations are persons under the law and are therefore entitled to equal protection under the 14th Amendment to the Constitution. This meant that corporate activity to protect and promote the interests of a wealthy minority was protected activity. This is significant because in 1886, women, Native Americans and, once again, most African Americans were denied the right to vote and equal protection of the law.
If there remains any question in your mind as to the role the Courts have played in advancing the preeminence of the Constitutional rights of a propertied class over the human rights of everyone else, consider the following: ont>
- The 14th Amendment specifies, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws." This amendment was added to the Constitution in 1868 to protect freed slaves, but as Supreme Court Justice Hugo Black pointed out, "Of the cases in this court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations." For Black, this was undeniable evidence that "the judicial inclusion of the word `corporation' in the Fourteenth Amendment has had a revolutionary effect on our form of government." [8]
- In *Minor v. Happersett* (1975), the women of Ohio argued that under the Fourteenth Amendment's protection of due process, the US Constitution established that their right to vote could not be denied by the state. [9] The US Supreme Court rejected that argument. Women received Constitutional protection for the right to vote 48 years later when a people's movement for equal rights was instrumental in the enactment of the 19th Amendment to the Constitution in 1920. It established that the right to vote could not be denied on the basis of sex and that the Congress had the power to enforce the amendment by passing appropriate legislation.
- While the courts were extending "rights" to corporate "persons" and denying them to women, they had, by 1920, struck down roughly 300 labor laws, laws that were passed by state legislatures for an eight-hour day, laws against requiring people to work on Sunday, and laws against the payment of wages in company scrip.
- More than 1800 injunctions against labor strikes were issued by the Courts between 1880 and 1931. [10] An injunction is a judge's order prohibiting a party from a specific course of action. In the labor cases referred to here, it usually meant that workers would break an injunction if they went on strike. :{Many labor people at the time considered injunctions against striking to be a violation of the 13th Amendment to the US Constitution which states, "Neither slavery nor involuntary servitude . . . shall exist within the United States . . ."
}:
- Of the 118 labor injunctions "heard" in Federal courts between 1901 and 1928, 70 of them were issued ex parte, i.e., without hearing the defendants, never notified of the hearing process. [11] Of course, all defendants in these cases were labor unions, union officials, and union members.
The Dartmouth College case put the corporation on the legal map. Subsequent Supreme Court decisions protected and promoted "rights" for the institutions of the rich and consistently suppressed the rights of all other people, including the right to vote, the right to organize their institutions, and the right to work no more than eight hours a day. So which class had a head start? Why should inequalities today be a surprise?
A future issue of By What Authority will take on later critiques of the Dartmouth case. For those of you who can't wait, go to the nearest law library and dig out The Bank of Toledo v. The City of Toledo and John R. Bond (1853) -- 1 Ohio St. 622. In this case the Ohio Supreme Court took on the Dartmouth decision and how it was interpreted, finding both the decision and its interpretations wanting. This case is a must read for anyone who wants to challenge the legal concept of the corporation.
Endnotes
- *Santa Clara County V. Southern Pacific Railroad* (1886), 118 U.S. 394.
- *The Board of Trustees of Dartmouth College v. Woodward* (1819), 17 U.S. 518.
- Elsie W. Clews, *Education, Legislation and Administration of the Colonial Governments,* New York: Macmillan Company, 1899, p. 171.
- Clews, p. 173.
- Governor Plumer's message to the New Hampshire legislature, June 6, 1816.
- *Reports of Cases Argued and Determined in the Superior Court of Judicature,* State of New Hampshire, 1816-1819, p. 135.
- "Circular to the Working Men of the City and County of Philadelphia," issued by the Working Men's Republican Association of the *Northern Liberties, Mechanics' Free Press,* April 17, 1830.
- *Connecticut General Life Insurance Company V. Johnson, Treasurer of California* (1938), 303 U.S. 77.
- *Minor V. Happersett* (1875), 88 U.S. 162.
- For a listing of the court cases and statistics on labor injunctions, see William E. Forbath, *Law and the Shaping of the American Labor Movement,* Harvard University Press, 1991, Appendix A & B.
- Leon Fink, from the article "Labor, Liberty and the Law: Trade Unionism and the Problem of the American Constitutional Order," Journal of American History, 74 (December, 1987), pp. 904-25.
Copyright © 2000 by Peter Kellman
Reprinted for Fair Use Only.
- * *
By What Authority, the name of our publication, is English for quo warranto. Quo warranto is the sovereign's command to halt continuing exercise of illegitimate privileges and authority. Evolved over the last millennium by people organizing to perfect a fair and just common law tradition, the spirit of By What Authority animates people's movements today.
We the people and our federal and state officials have long been giving giant business corporations illegitimate authority. As a result, a minority directing giant corporations privileged by illegitimate authority and backed by police, courts and the military, define the public good, deny people our human and constitutional rights, dictate to our communities, and govern the Earth. By What Authority is an unabashed assertion of the right of the sovereign people to govern themselves. A publication of the Program on Corporations, Law and Democracy.
POCLAD is a project of the nonprofit Council on International and Public Affairs.
==
https://www.nationalreview.com/corner/nature-rights-movement-increasing-visibility-acceptance/
While most people roll their eyes and laugh that “it can never happen here,” the “nature rights” movement is increasing in visibility and liberal establishment acceptance. The journal *Science* has favored the concept. So too has liberal activist Jim Hightower.
Now, that bastion of liberal respectability — NPR — has now done a big, friendly story on the movement, reporting that Bangladesh just proclaimed all rivers to be living entities with human-type rights. Yippee!
The problem, according to NPR’s story, isn’t that nature rights laws would thwart human thriving substantially by requiring that all of nature be given equal consideration with the needs, wants, and intentions of people. (Remember, “nature rights” isn’t about pollution.) Nor do the bounteous reasons for retaining “rights” exclusively in the human realm rate a single mention. In fact, no critics of the concept are quoted.
Rather, the only real downsides mentioned are difficulties in enforcement. From the story:
The idea of what these laws hope to accomplish is where the similarities stop, as their legal bases and the range of socio-environmental and economic problems they’re meant to solve vary from country to country. Many of the laws have also been met with resistance from industry, farmers and river communities, who argue that giving nature personhood infringes on their rights and livelihoods.
Imagine that! People want to thrive off the land and the development of resources.
This inconsistent patchwork of approaches has inevitably led to difficulties in enforcement, says Erin O’Donnell, an academic fellow at the University of Melbourne Law School in Australia. “It becomes everybody’s responsibility and then, possibly, nobody’s responsibility,” she tells NPR. “So the question of enforcement then becomes who actually has the funding, usually, to run a lawsuit. Lawsuits are very expensive.”
Don’t fall for that one. The environmental movement is rolling in dough. If “nature rights” laws become widespread, there will be plenty of money to pay lawyers to sue developers and resource-using enterprises into the dirt — including as part of activist pro-bono programs that large corporate law firms dangle in front of woke law school graduates from elite law schools to get them to work for them.
Readers may recall that Lake Erie was recently granted rights in a special election, including the right to “evolve naturally.” The Ohio Legislature hurriedly passed a provision as part of a budget deal to block the lake’s “rights” from being enforced.
Before that, the owners of a large farm felt compelled to sue to in order to continue operating. Back to NPR:
The ordinance’s constitutionality was immediately challenged by a farm in a federal lawsuit. The farm argued the ordinance made it vulnerable “to massive liability” when it fertilizes its fields “because it can never guarantee that all runoff will be prevented from entering the Lake Erie watershed.” Then the state of Ohio joined that lawsuit, arguing it — not the citizens of Toledo — has the “legal responsibility” for environmental regulatory programs.
“What’s interesting is the state of Ohio intervening on behalf of the polluter, not on behalf of the people who passed the law,” says Tish O’Dell, the Ohio community organizer for the Community Environmental Legal Defense Fund.
The lawsuit is ongoing, though O’Dell predicts the ordinance will ultimately be overturned....
----
no lnx
nb language aND SLIPPERY SLOPE (no ref to corp person) that was forbes? i forget logic
NPR Discovers the ‘Nature Rights’ Movement
By WESLEY J. SMITH
August 6, 2019
While most people roll their eyes and laugh that “it can never happen here,” the “nature rights” movement is increasing in visibility and liberal establishment acceptance. The journal Science has favored the concept. So too has liberal activist Jim Hightower.
Now, that bastion of liberal respectability — NPR — has now done a big, friendly story on the movement, reporting that Bangladesh just proclaimed all rivers to be living entities with human-type rights. Yippee!
The problem, according to NPR’s story, isn’t that nature rights laws would thwart human thriving substantially by requiring that all of nature be given equal consideration with the needs, wants, and intentions of people. (Remember, “nature rights” isn’t about pollution.) Nor do the bounteous reasons for retaining “rights” exclusively in the human realm rate a single mention. In fact, no critics of the concept are quoted.
Rather, the only real downsides mentioned are difficulties in enforcement. From the story:
The idea of what these laws hope to accomplish is where the similarities stop, as their legal bases and the range of socio-environmental and economic problems they’re meant to solve vary from country to country. Many of the laws have also been met with resistance from industry, farmers and river communities, who argue that giving nature personhood infringes on their rights and livelihoods.
Imagine that! People want to thrive off the land and the development of resources.
This inconsistent patchwork of approaches has inevitably led to difficulties in enforcement, says Erin O’Donnell, an academic fellow at the University of Melbourne Law School in Australia. “It becomes everybody’s responsibility and then, possibly, nobody’s responsibility,” she tells NPR. “So the question of enforcement then becomes who actually has the funding, usually, to run a lawsuit. Lawsuits are very expensive.”
Don’t fall for that one. The environmental movement is rolling in dough. If “nature rights” laws become widespread, there will be plenty of money to pay lawyers to sue developers and resource-using enterprises into the dirt — including as part of activist pro-bono programs that large corporate law firms dangle in front of woke law school graduates from elite law schools to get them to work for them.
Readers may recall that Lake Erie was recently granted rights in a special election, including the right to “evolve naturally.” The Ohio Legislature hurriedly passed a provision as part of a budget deal to block the lake’s “rights” from being enforced.
Before that, the owners of a large farm felt compelled to sue to in order to continue operating. Back to NPR:
The ordinance’s constitutionality was immediately challenged by a farm in a federal lawsuit. The farm argued the ordinance made it vulnerable “to massive liability” when it fertilizes its fields “because it can never guarantee that all runoff will be prevented from entering the Lake Erie watershed.” Then the state of Ohio joined that lawsuit, arguing it — not the citizens of Toledo — has the “legal responsibility” for environmental regulatory programs.
“What’s interesting is the state of Ohio intervening on behalf of the polluter, not on behalf of the people who passed the law,” says Tish O’Dell, the Ohio community organizer for the Community Environmental Legal Defense Fund.
The lawsuit is ongoing, though O’Dell predicts the ordinance will ultimately be overturned.
Let us hope so.
State preemption is a weak reed. Besides, what would happen if, say, California passed such a law? How would the farmers in the Central Valley fare if activists sued them for interfering with the “rights” of the Sacramento River to flow freely rather than have its water used for irrigation? Or what about timber companies near Eureka? It wouldn’t just be “old growth” forests that would be protected by “nature rights,” but potentially all forests.
The NPR story puts this issue more squarely into the progressives’ political playbook. If this keeps up, “nature rights” will be adopted into the Democrat party’s environmental platform. Once that happens, good luck with applying a simple statutory prophylactic to prevent these laws from proliferating.
WESLEY J. SMITH is an author and a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. @forcedexit
==
https://www.salon.com/2019/07/14/corporations-can-legally-put-carcinogens-in-our-food-without-warning-labels-heres-why/
Corporations can legally put carcinogens in our food without warning labels. Here's why
Cheerios has so much glyphosate in it, it should be labeled as toxic. Corporate free speech precedents prevent that
MATTHEW ROZSA
JULY 14, 2019
A recent study by the Environmental Working Group revealed something horrifying: Glyphosate, the active ingredient in the popular weedkiller Roundup, was present in 17 of the 21 oat-based cereal and snack products at levels considered unsafe for children. That includes six different brands of Cheerios, one of the most popular American cereals.
I've written before about the limits of corporate free speech when it comes to public safety, but on that occasion I discussed this insofar as it involved corporate-sponsored climate change denialism. Yet here we have something more tangible, more direct: The safe glyphosate limit for children is 160 parts per billion (ppb), yet Honey Nut Cheerios Medley Crunch has 833 parts per billion and regular Cheerios has 729 ppb. While the potential risks of glyphosate are fiercely debated, many scientists believe that it is linked to cancer.
So if there are unsafe levels of glyphosate in a cereal popular with children, why isn't this disclosed on the cereal boxes? The complicated answer has to do with a legal case that defined free speech as something that non-human persons, like corporations, have a "right" to, in a sense. That sounds absurd, perhaps, and probably not something the framers of the constitution intended. Indeed, the idea of "corporate constitutional rights" is a relatively new one, yet one that corporations' legal arms fight tooth and nail to preserve.
There are several activist groups working to amend the constitution to undo the notion of corporate personhood and make it so that this mind-bending and harmful interpretation of corporate free speech is no longer enshrined in law. Move to Amend — as in, the constitution — is one such group. Salon interviewed ...What does glyphosate do to weeds?
Glyphosate is a non-selective herbicide, meaning it will kill most plants, not just weeds. It prevents plants from making certain proteins that are needed for plant growth.
What do peer-reviewed studies indicate it does to human beings and animals if they ingest it?
The International Agency for Research on Cancer (IARC) has labeled glyphosate as “probably carcinogenic” and the California Office of Environmental Health Hazard Assessment categorized it as a “chemical known to the state to cause cancer.”
How did glyphosate wind up in foods like breakfast cereals?
According to the U.S. Geological Survey, 250 million pounds of glyphosate are sprayed on American crops each year. Glyphosate is primarily used on Roundup Ready corn and soybeans that are genetically modified to withstand the toxin. Glyphosate is also sprayed on other non-GMO crops, like wheat, oats, barley and beans, right before harvest.
What have Monsanto and other companies done to suppress knowledge of its effects (lobbying, suppressing science, etc.)?
Monsanto has waged a sophisticated PR campaign to bully scientists and undermine findings that glyphosate is cancerous. In addition Monsanto and agribusiness leaders protecting the company's interests have a revolving door relationship with many agencies that are supposed to be overseeing and regulating the corporation. Monsanto and agribusiness associations have also made significant political contributions to Congressmembers like former Rep Lamar Smith from Texas who chaired the House Science, Space, and Technology Committee where he used his platform to undermine the [International Agency for Research on Cancer] when their cancer findings came out, accusing the agency of using "cherry-picked" science when determining that glyphosate is “probably carcinogenic.” ...Monsanto has argued that California's Prop 65 labeling law is a violation of the company's First Amendment right not to speak.
What is the boundary separating corporate free speech between their responsibility to the public health? Have those boundaries shifted over the years?
The courts have expanded the ability of corporations to overturn labeling requirements on a number of occasions over the last 35 years. In 1986 the Supreme Court decided that the Pacific Gas and Electric Company in California was not required to allow a consumer advocacy group to use the extra space in their billing envelope, upholding the corporation's right not to speak and protecting the corporation's “freedom of mind.”
In 1996 the U.S. Second Circuit Court of Appeals overturned a Vermont law requiring the labeling of all products containing bovine growth hormone and ruled that the right not to speak inheres in political and commercial speech alike and extends to statements of fact as well as statements of opinion.
In Nike v. Kasky in 2003 the Supreme Court heard arguments on whether purposeful untruths in advertising are protected political speech before sending the case back to a California court where it was settled in Kasky’s favor, finding that the state laws requiring truth in advertising had been violated. The question of whether the First Amendment gives a corporation the right to speak lies remains unsettled.
Legally speaking, why are companies allowed to have poisons in our foods without warning the public of that fact?
The Supreme Court never had the authority to determine that corporations have any Constitutional rights, including First Amendment rights. By granting corporations these powers, meant to be the ultimate protections for people from government overreach, it in effect means that in many ways regulatory agencies have no authority over corporate actions — even when those actions are determined to cause public harm. In cases involving the First Amendment right not to speak it is even more insidious because it means that their so-called right not to warn the public about their toxic products trumps our right to know what's in our food.
The only solution to this problem is to pass an amendment to the US Constitution to make clear that only human beings have Constitutional rights, and that government absolutely has the right to regulate corporations like Monsanto, so that they can no longer use the Constitution as a shield against public oversight and protection. The We the People Amendment will do just that.
MATTHEW ROZSA
Matthew Rozsa is a breaking news writer for Salon. He holds an MA in History from Rutgers University-Newark and is ABD in his PhD program in History at Lehigh University. His work has appeared in Mic, Quartz and MSNBC.
==
A R sorkin
https://www.nytimes.com/2019/07/29/business/dealbook/corporate-governance-reform-ethics.html
sociopath
==
3 pp
https://money.howstuffworks.com/corporation-person2.htm
:{What's strange, Hartmann points out, is that the justices hadn't ruled that way at all. Even fishier, the court reporter was a former railroad president source: :(style="background-color:#ffffff;"):}:[Hartmann:{]. Ultimately, since it was a }::{headnote}::{ (a commentary prefix to the court record) written by the reporter, it didn't constitute law. But it did set precedent. Two years later, this idea was upheld in another case: Pembina Consolidated Mining and Milling Co. v. Pennsylvania source: }:[Aljalian:{]....}:
The remarkably odd stipulation that, as artificial persons, corporations should enjoy the same Constitutional protections as humans has given rise to some equally odd arguments. Time and again, the strength of this assumption has been tested in court. As a result, this American tradition has been upheld and challenged.
In the 1990s, the athletic company Nike was accused of running sweatshops -- factories that employ labor at substandard conditions and low wages -- in developing Asian countries. The story came to the fore even more in 2001. That year, Nike launched a shoe line that allowed customers to have whatever they pleased embroidered on the company's shoes. One MIT graduate student lodged his order: He wanted the word "sweatshop" embroidered on his pair.
The company refused his order, and the student circulated the e-mail Nike had sent him. The media took notice. In short order, stories of Nike's overseas labor practices made it into the pages of news outlets like the Wall Street Journal source: [The Industry Standard].
In an ongoing public relations campaign, Nike said it did not use exploitative labor practices, and it actually protected workers' rights abroad. Based on proof that contradicted the PR blitz, a California man sued the company in 1998 for false advertising source: [BBC]. The company challenged the issue, saying that as an artificial person, it was allowed to lie. Lying, after all, is protected by the freedom of speech granted in the First Amendment.
Nike lost in the California Supreme Court, but appealed. After accepting the case, the Supreme Court deferred it back to the lower courts source: [New York Times]. Ultimately, the company settled the suit for $1.5 million, which went to a labor rights group source: [BBC]. In 2005, Nike published a report of the working conditions in its overseas factories, which included admissions of employee mistreatment source: [The Guardian].
Nike's not alone in seeking Constitutional protection against bad publicity. In 1986, Dow Chemical sued the federal government. The company argued that the use of aerial photography by the Environmental Protection Agency (EPA) was a violation of the corporation's Fourth Amendment rights. Dow asserted that the EPA shouldn't be able to snap photos in search of federal violations. The Fourth Amendment protects Americans from unreasonable search and seizure, and Dow alleged its rights were violated by EPA flyovers source: [Connecticut General Assembly]. The Supreme Court ultimately decided 5 to 4 to uphold the lost case, opining that Dow couldn't reasonably expect privacy in its chemical plant source: [New York Times].
But corporations have been successful in court as well. In the 1978 case Marshall v. Barlow's, Inc., the Supreme Court established freedom from search for businesses under the Fourth Amendment. Prior to the ruling, agents from the federal Occupational Safety and Health Administration (OSHA) could inspect any business for safety violations without alerting the owner or asking his or her permission source: [USSC Plus]. Following the Marshall case, incorporated businesses were granted the same protection human citizens have from police searches. OSHA now must either receive permission from the owner or show evidence that a violation has occurred and obtain a search warrant source: [CBIA].
==
am pro
July 10, 2019 by Susie Fagan
A Trump administration-backed rule requiring pharmaceutical companies to disclose drug prices in TV ads was blocked in federal court. Among the arguments was drug companies’ claim that the rule would violate their First Amendment rights.
A new rule to require pharmaceutical companies to publish drug prices in their television advertising was blocked by a federal court a day before it was to take effect. President Donald Trump’s administration pushed for the rule as part of its effort to reduce prescription drug prices for U.S. consumers.
Three drugmakers—Merck, Eli Lilly and Amgen—filed the legal challenge along with the advertising trade group the Association of National Advertisers, arguing that the rule::{
}:
- Went beyond the authority of the U.S. Department of Health and Human Services because Congress did not authorize the requirement.
- Would confuse consumers by forcing them to disclose a price irrelevant to patients with insurance.
- Violated their free speech rights under the First Amendment of the U.S. Constitution.
That last argument leans on the U.S. Supreme Court ruling in the 2010 Citizens United v. FEC case. In that 5-4 decision, the court lifted restrictions on corporate political spending, calling the restrictions violations of corporations’ 1st Amendment free speech rights, enshrining constitutional rights for corporations and unleashing a wave of political spending from Super PACs and other outside groups.
A Hot Topic in Congress
A federal judge this week blocked a White House initiative on prescription drug costs, saying the Trump administration lacked the legal authority to require drugmakers to disclose their prices in television ads.
The rule, which would have required ads for any medicine with a list price over $35 a month to disclose the cost during the commercial, is just one of several recent attempts on both sides of the aisle to rein in drug prices.
Nearly a quarter of Americans say they have trouble affording the cost of their prescription drugs, according to a recent Kaiser Family Foundation poll, and nearly a third say they don’t take their medicines as prescribed because of high costs. A cross-partisan majority of Americans say drug companies should have to list prices in their ads, as proposed by the Trump administration and advocated for by consumer rights groups, and that regulations should be changed to speed access to generic drugs.
Drug prices are a hot topic during this session of Congress, with notable bipartisan support—yet initial efforts have stalled in the face of pharmaceutical industry lobbying, according to the Center for Responsive Politics. Lawmakers are considering several pieces of legislation designed to limit rising costs:
- The Affordable Prescriptions for Patients Act, introduced by Sens. John Cornyn (R-Texas) and Richard Blumenthal (D-Conn.), would classify certain patent practices as anticompetitive, making it easier for the Federal Trade Commission to bring lawsuits against drug companies that try to block generic alternatives. After backlash from the pharmaceutical industry, the bill is undergoing changes in what is being called “a major victory” for the drug industry.
- In late May, Sens. Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) introduced a more comprehensive bill that targets drug prices as well as other health care issues such as surprise billing.
- In June, Reps. Hakeem Jeffries (D-N.Y.), Debbie Mucarsel-Powell (D-Fla.), Doug Collins (R-Ga.) and Ben Cline (R-Va.) introduced a bill that seeks to allow for more generic drugs by increasing the burden of proof for companies seeking additional patents on an existing medication.
The pharmaceutical industry has long ranked among the top industries for campaign donations, with the three drug companies that filed the lawsuit among among the industry’s top four political contributors for the 2017-2018 campaign cycle.
Overcoming Big Money
In ruling that corporate political spending was protected free speech in Citizens United, the Supreme Court based its decision on the assertion that corporations deserve these constitutional protections because they are assemblies of people. However, corporations typically don’t represent the opinions of all of the people who comprise them—and most Americans agree that corporations are not people.
The 28th Amendment will affirm the rights of people in our government—rather than corporations, unions, special interest groups and other big-money influences—by addressing reforms to political spending and other issues, including corporate rights, gerrymandering and term limits for Congress.
Through a constitutional amendment, Americans can strengthen our elections, prevent corruption, and ensure equal representation and political equality.
==
public cit
We are going to win a constitutional amendment to overturn Citizens United.
We took a major step toward that goal today, as New Hampshire became the 20th state to support a constitutional amendment to overturn the 2010 decision and restore our democracy.
Now we have to build on that victory and force Congress to vote on an amendment.
===
am promise 619
Today New Hampshire is the 20TH STATE to call on Congress to pass the 28th Amendment!
State by state victories like this are the key to our strategy to win the amendment, and it's working! With this win, New Hampshire joins Montana, Colorado, New York, Nevada and many more: So far 20 states have formally called for the amendment, more than half of the 38 states we need to ratify the amendment!
Next, American Promise members are driving to put Alaska, Pennsylvania, Ohio, Minnesota, Michigan and more on the board,--
The 28th Amendment is winning everywhere, not just in New Mexico and New Hampshire. In Wisconsin, Citizen Leaders are pushing their legislature to put a resolution on the ballot after nearly 100 local communities passed resolutions – including one in Speaker Paul Ryan’s hometown, Janesville, WI, where it passed with 84 percent support.
==
==
current 519 efforts to expand ~ birth control based on corp pers relig rights?
===
https://www.sfchronicle.com/news/article/Trump-s-sixth-appointee-to-Ninth-U-S-Circuit-13867904.php
Trump’s sixth appointee to Ninth U.S. Circuit Court of Appeals confirmed
Bob Egelko May 21, 2019 Updated: May 21, 2019 10:25 p.m.
Daniel Collins has been confirmed by the U.S. Senate to the Ninth U.S. Circuit Court of Appeals.
The Senate confirmed Los Angeles attorney Daniel Collins to the Ninth U.S. Circuit Court of Appeals on Tuesday over the opposition of his home-state senators and other Democrats, giving President Trump his sixth appointee to the San Francisco-based court that he regularly denounces.
The vote was 53-46, along party lines, to confirm Collins to a seat that became vacant in December 2015, when liberal Judge Harry Pregerson took senior status — semi-retirement — two years before his death. Former President Barack Obama nominated U.S. District Judge Lucy Koh of San Jose to succeed Pregerson, but Senate Republicans refused to hold a confirmation vote.
Collins, a Stanford Law School graduate, is a former federal prosecutor and Justice Department lawyer in the George W. Bush administration with a solidly conservative record. He was a law clerk for the late Supreme Court Justice Antonin Scalia, and later filed arguments with the court successfully arguing that certain corporations were entitled to exercise their religious beliefs by denying contraceptive coverage to female employees.
Collins also represented Philip Morris Co. in an unsuccessful challenge to a San Francisco ordinance barring tobacco sales in drugstores. Another client, San Jose flight-planning company Jeppesen Dataplan, was accused in a lawsuit of helping the CIA transport prisoners to overseas prisons for interrogation and torture during the Bush administration.Federal courts dismissed the suit on the grounds it risked exposure of state secrets.
===
https://www.brennancenter.org/blog/hobby-lobby-argument
History of Corporate Personhood
How did we get to the point where a for-profit corporation can lay claim to religious rights? Ciara Torres-Spelliscy on the slithering history of corporate personhood.
April 7, 2014
In McCutcheon v. FEC, handed down last Wednesday, the Supreme Court built on the precedent of Citizens United by invalidating the federal aggregate contribution limit for individuals. But McCutcheon is not the only case that gives the Supreme Court chance to expand Citizens United’s reach this term.
In *Sebelius v. Hobby Lobby Stores*, the Supreme Court has to choose whether to extend the logic of 2010’s Citizens Unitedto allow a corporation to make a religious objection to a generally applicable law.
How we got to the point where a for-profit corporation – not a church mind you – can lay claim to religious rights is a bit complicated. It all goes back to a legal fiction known as corporate personhood.
Generally, corporate personhood allows companies to hold property, enter contracts, and to sue and be sued just like a human being. But of course some human rights make no sense for a corporation, like the right to marry, to parent a child, or to vote. As Professor Elizabeth Pollman explains when it comes to Constitutional rights for corporations there is ahodgepodge: “corporations enjoy Fourth Amendment safeguards against unreasonable regulatory searches, but do not have a Fifth Amendment privilege against self-incrimination.”
If you’re a fan of the Colbert Report, “corporate personhood” might sound familiar. Stephen Colbert got a well deserved Peabody Award for his work educating the public about campaign finance laws with his lawyer Trevor Potter. However, Mr. Colbert’s verbal tick of saying that Citizens United granted corporate personhood is a tad misleading.
Citizens United did not grant corporations personhood. Corporations already had it. As lawyer David Gans has documented, despite the fact that the U.S. Constitution never mentions corporations, corporate personhood has been slithering around American law for a very long time. The first big leap in corporate personhood from mere property rights to more expansive rights was a claim that the Equal Protection Clause applied to corporations.
The 14th Amendment, adopted after the Civil War in 1868 to grant emancipated slaves full citizenship, states, “No state shall ... deprive any person of life, liberty, or property without due process of law, nor deny to any person ... the equal protection of the laws.”
We have the likes of former U.S. Senator Roscoe Conkling to thank for the extension of Equal Protection to corporations. Conkling helped draft the 14th Amendment. He then left the Senate to become a lawyer. His Gilded Age law practice was going so swimmingly that Conkling turned down a seat on the Supreme Court not once, but twice.
Conkling argued to the Supreme Court inSan Mateo County v. Southern Pacific Rail Road that the 14th Amendment is not limited to natural persons. In 1882, he produced a journal that seemed to show that the Joint Congressional Committee that drafted the amendment vacillated between using “citizen” and “person” and the drafters chose person specifically to cover corporations. According to historian Howard Jay Graham, “[t]his part of Conkling’s argument was a deliberate, brazen forgery.”
As Thom Hartmann notes the Supreme Court embraced Conkling’s reading of the 14th Amendment in a headnote in 1886 in ***Santa Clara County** v. Southern Pacific Rail Road*: “Before argument, Mr. Chief Justice Waite said: ‘The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.’” This was not part of the formal opinion. But the damage was done. Later cases uncritically cited the headnote as if it had been part of the case.
Some Supreme Court Justices objected to the Santa Clara approach. Dissenting in *Wheeling Steel Corp.* in 1949 Justice William O. Douglas and Justice Hugo Black noted that the corporate personhood issue was not such an open and shut case: “[In Santa Clara] [t]here was no history, logic, or reason given to support that view. … [T]he purpose of the [14th] Amendment was to protecthumanrights-primarily the rights of a race which had just won its freedom.” Justices Douglas and Black thought the question of corporate personhood should be decided by the people, not the Supreme Court. But they could not convince their fellow Justices.
In the 1970s, Santa Clara was used to justify granting corporations the First Amendment right to spend unlimited corporate funds on ballot initiatives in a case called *Bellotti*. The Court relied on Santa Clara’s reading when it stated that “[i]t has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment.” Justice Rehnquist, in his dissent, questioned the wisdom of extending corporations political rights: “those properties, so beneficial in the economic sphere, pose special dangers in the political sphere.” Again Rehnquist could not convince his brethren.
In *Citizens United*, when the Supreme Court held that political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation,” they cited Bellotti. Thus it’s only a hop, skip and a jump from Santa Clara to Citizens United.
In Sebelius v. Hobby Lobby Stores, the store chain is claiming that the corporation (and not just its proprietors) has a religious objectionto providing certain types of birth control for its workers as required by the Affordable Care Act. Thus, the Court is contemplating expanding corporate personhood to a new logical extreme: First Amendment religious rights. It’s no surprise that Hobby Lobby’s brief relies on Bellotti and Citizens United.
There are absurdities that flow from granting legal fictions Constitutional rights that were intended for humans. Corporations don’t have minds, and without one it is hard to see how a corporation “thinks” about any political issue du jour from gay rights to the budget deficit. Without a soul, it’s hard to conceptualize how a corporation could “believe” in anything whether it is transubstantiation of communion or the morality of birth control. But here we go again. A corporation makes a Constitutional claim to the righteousness of their legal position. The question is will the Justices fall for it?
===
==
zoe
https://en.wikipedia.org/wiki/For_the_People_Act_of_2019
The For The People Act of 2019 (H.R. 1, 2019)[1][2] is a bill introduced in the United States House of Representatives to expand voting rights, limit partisan gerrymandering, strengthen ethics rules, and limit the influence of private donor money in politics.[3] It was introduced by John Sarbanes (D-MD) on January 3, 2019 on behalf of the newly elected Democratic majority as the first official legislation of the 116th United States Congress.[3][4]
The bill's provisions fall into three major categories:[3][5]
- Campaign finance reform. The bill would introduce voluntary public financing for campaigns, matching small donations at a 6:1 ratio. It would also introduce stricter limitations on foreign lobbying, require Super PACs and other "dark money" organizations to disclose their donors, and restructure the Federal Election Commission to reduce partisan gridlock. The bill also _{expresses support }_for a constitutional amendment to overturn the Citizens United decision, where the Supreme Court held that spending money can be critical to exercising the freedom of speech, and so virtually unlimited political spending by nonprofit corporations, for-profit corporations, labor unions, and other associations was a constitutional right.
==
vs
HJR 48
https://www.congress.gov/bill/116th-congress/house-joint-resolution/48/cosponsors?q=%7B%22search%22%3A%5B%22hjr48%22%5D%7D&s=2&r=1&overview=closed#tabs
5/19
---
Congresswoman Jayapal Has Re-Introduced the We the People Amendment in the 116th Congress!
The We the People Amendment will overturn Citizens Unitedby ending corporate personhood and getting big money out of politics
==
==
drilled season 2 on local and state lawsuits
https://www.criticalfrequency.org/drilled
==
===
Karen Savage
Exxon continues to cry foul, alleging that two state attorneys general are violating its First Amendment right to express its opinion on climate change.
In a brief filed last week in New York, attorneys for Exxon once again asserted that that investigations by Massachusetts Attorney General Maura Healey and New York Attorney Eric Schneiderman are part of a politically motivated conspiracy against the company and an attempt to silence the oil giant through intimidation.
The filing was the latest effort by Exxon to thwart investigations by the attorneys general into possible climate change-related deception by the company. It follows a filing by the AGs in December urging a dismissal of Exxon’s suit against them, based on the company’s recent announcement that it would begin considering climate risks on its business in disclosures to its stockholders. Healey and Schneiderman contend that announcement equates to an admission that Exxon has not been forthcoming about those risks as the AGs have alleged.
But Exxon continues to insist that the investigations are an abuse of Healey’s and Schneiderman’s political positions and are violations of the oil giant’s First, Fourth and Fourteenth amendment rights.
In November, New York U.S. District Court Judge Valerie Caproni ordered each side to submit written arguments in the case, which was first filed by Exxon in the U.S. District Court for the Northern District of Texas in June 2016, but has since:{been transferred}:to New York.
In its most recent brief, attorneys for Exxon:{said}: the attorneys general are targeting Exxon with “burdensome” and “harassing” investigations because of the company’s views on climate change. Attorneys also link Healey and Schneiderman to climate activists who Exxon says are seeking to “harass perceived political opponents” and “delegitimize” Exxon.
Attorneys for Healey call Exxon’s allegations absurd, particularly considering Exxon has taken the public stance of supporting the overwhelming scientific consensus on climate change.
“Exxon asserts that Attorney General Healey has joined in an illegal conspiracy to violate Exxon’s rightsbecause she does not agree with Exxon’s views about climate change. Yet Exxon also states that it now endorses climate science, the existence of climate change, and efforts to combat it—consistent with Attorney Healey’s position,” Healey’s attorneys wrote in a recent brief.
Schneiderman’s attorneys said that for Exxon to prevail on a free speech allegation, it must plead and prove its right to free speech has been violated, something they contend Exxon has not done.
They point to Exxon’s own court filings, in which the company said it speaks publicly about the risks of climate change and shares its perspective on climate change on the company’s:{website}:.
In a website posting last week, Exxon denounced a recent climate change-related lawsuit:{filed:(style="box-sizing:inherit"):}: against it by New York City and reiterated its climate change perspective.A:{video}: shared on the company’s Twitter page carried a similar message.
“These public statements demonstrate that, far from being muzzled, Exxon:{regularly}:engages in corporateadvocacy concerning climate change,” wrote attorneys for Schneiderman, adding that a state investigation is not a violation of Exxon’s constitutionally protected rights.
Schneiderman also said that fraudulent statements are not protected by the First Amendment.
Exxon fired back, alleging that not only are its statements protected but also the company has been harmed by having to endure the “burden and expense” of the investigations.
“Based on the record before this Court, there is no basis to classify ExxonMobil’s speech on climate change and climate policy as anything but fully protected by the First Amendment,” wrote attorneys for Exxon.
But attorneys for Healey said Exxon’s recent filing with the Securities and Exchange Commission that promised climate risk disclosure raises further questions about the company’s truthfulness.
That decision came after 62 percent of Exxon shareholders voted in favor of requiring the company to produce a report outlining financial risks to the company from global efforts to prevent temperatures from rising more than 2 degrees Celcius.
“This filing makes clear that, at a minimum, Exxon’s prior disclosures to investors, including Massachusetts investors, may not have adequately accounted for the effect of climate change on its business and assets,” attorneys for Healey wrote.
:{[Exxon Will Continue to Fight Climate Probes by State Attorneys General](https://www.climateliabilitynews.org/2018/04/23/exxon-climate-probe-new-york-massachusetts/ "Exxon Will Continue to Fight Climate Probes by State Attorneys General
By Karen Savage Exxon continues to try to shake probes by two state attorneys general into possible climate fraud by the company. The oil giant filed notice on Friday that it will appeal the decision by a federal judge to dismiss its suit against Massachusetts Attorney General Maura Healey and…")}:
:{[Exxon's First Amendment Claims in Climate Fraud Case Draw Judge's Skepticism](https://www.climateliabilitynews.org/2017/11/30/exxon-climate-fraud-case-schneiderman-healey/ "Exxon's First Amendment Claims in Climate Fraud Case Draw Judge's Skepticism
By Karen Savage Exxon’s quest to convince a federal judge that two state attorneys general are stifling their right to free speech is proving to be no easy task. In a hearing Thursday in New York, U.S. District Court Judge Valerie Caproni said the oil giant’s rationale involved “wild leaps…")}:
:{[Federal Judge Dismisses Exxon Lawsuit Challenging State Climate Probes](https://www.climateliabilitynews.org/2018/03/29/exxon-climate-fraud-lawsuit-ny-mass-schneiderman-healey/ "Federal Judge Dismisses Exxon Lawsuit Challenging State Climate Probes
By Karen Savage A federal judge dismissed Exxon’s lawsuit attempting to stop investigations by two state attorneys general into potential climate fraud by the company, which the company claimed are politically motivated and in violation of its Constitutional rights. Ruling that Exxon’s allegations against Massachusetts Attorney General Maura Healey and…")}:
==
bk rev of winkler
http://www.rapidshift.net/corporations-are-people-is-built-on-an-incredible-19th-century-lie-how-a-farcical-series-of-events-in-the-1880s-produced-an-enduring-and-controversial-legal-precedent/
'Corporations Are People’ Is Built on an Incredible 19th-Century Lie How a farcical series of events in the 1880s produced an enduring and controversial legal precedent
By Zephyr Teachout, March 5, 2018, NYTimes.com
==
human const rights:
https://insideclimatenews.org/news/09012019/pennsylvania-greenhouse-gas-reduction-target-natural-gas-fracking-climate-change
In Pennsylvania, a coal-mining state where the fracking boom has also pushed natural gas production to the second highest levels in the nation, Gov. Tom Wolf is launching into his second term with a conspicuous move on climate change.
Wolf issued an executive order on Tuesday to set the state's first economy-wide targets for reducing greenhouse gas emissions.
His goal to cut greenhouse gas emissions 26 percent by 2025 compared to 2005 levels mirrors the commitment the U.S. made as part of the Paris climate agreement. And his longer-term target—an 80 percent reduction by 2050—is in line with the decarbonization that scientists have said will be needed to keep global temperatures from rising 2 degrees Celsius above pre-industrial levels.
But meeting that target is easier said than done with Republicans in control of both chambers of the legislature, as the Democratic governor pointed out.
The governor can set energy efficiency targets for state agencies, take steps to increase the number of electric cars in state fleets, and increase purchases of renewable energy, but those moves would be insufficient on their own to curb Pennsylvania's emissions.
Pennsylvania now ranks fourth in the country, behind Texas, California and Florida, in carbon emissions. Methane, a short-lived climate pollutant, is also an issue. The state is second behind Texas in natural gas production and the third-largest coal producer after Wyoming and West Virginia.
'Not Too Much, But Not Too Little'
Wolf cautioned that it was unlikely that legislative action would be forthcoming to accomplish his greenhouse gas reduction goals. He also said he did not have any regulatory actions in mind and did not want to be punitive to industry.
"What I try to make sure is that what I do is not too much, but not too little," he said. Wolf used the signing event at the Heinz History Center in Pittsburgh to hail a local utility, Peoples Natural Gas, for a commitment to cut its methane emissions in half, calling it a model for industry and government cooperation.
By setting the targets, Pennsylvania joins 16 other states that as part of the U.S. Climate Alliance have pledged to meet the U.S. climate commitment despite President Donald Trump's vow to exit the Paris accord.
States Stepping Up on Climate Policies
The announcement comes at a time when states are stepping up on a wide variety of fronts to counter Trump's moves to promote fossil fuels and end climate action.
On Tuesday, legislators in nine coastal statesannounced they would introduce legislation to try to block Trump's plan for a major expansion in offshore drilling.
Pennsylvania joined eight eastern states and Washington, D.C., late last year in committing to cut transportation emissions in the region by designing a new cap-and-trade system.
Pennsylvania Hasn't Joined RGGI
But Pennsylvania has been out of step with neighboring states when it comes to power plant emissions.
When New Jersey rejoins the Regional Greenhouse Gas Initiative (RGGI) later this year, Pennsylvania will be the only northeastern state led by a Democratic governor not to be a part of the market-based program to reduce utility emissions.
More than 60 Pennsylvania businesses, communities and faith groups in November petitioned Pennsylvania's Environmental Quality Board to initiate an economy-wide "cap-and-trade" program. Although the board rejected a similar petition before, the new effort relies on a 2017 state Supreme Court ruling that upheld a broad interpretation of the Environmental Rights Amendment in the state's constitution. [? // to Our Children's trust?]
PUBLISHED UNDER:
SHORT-LIVED CLIMATE POLLUTANTS
==
==
WITH pod tradewatch public citizen 3 lawyer bd out of nafta 2?
==
https://www.alternet.org/2019/01/corporate-dictatorships-are-subjugating-us-workers-and-stripping-employees-of-fundamental-constitutional-rights/
‘Corporate dictatorships’ are subjugating US workers — and stripping employees of fundamental constitutional rights
Chris Hedges, Mr. Fish / Truthdig January 14, 2019
chris hy, truthdig, mr fish?
Corporate dictatorships—which strip employees of fundamental constitutional rights, including free speech, and which increasingly rely on temp or contract employees who receive no benefits and have no job security—rule the lives of perhaps 80 percent of working Americans. These corporations, with little or no oversight, surveil and monitor their workforces. They conduct random drug testing, impose punishing quotas and targets, routinely engage in wage theft, injure workers and then refuse to make compensation, and ignore reports of sexual harassment, assault and rape.
They use managerial harassment, psychological manipulation—including the pseudo-science of positive psychology—and intimidation to ensure obedience. They fire workers for expressing leftist political opinions on social media or at public events during their off-hours. They terminate those who file complaints or publicly voice criticism about working conditions. They thwart attempts to organize unions, callously dismiss older workers and impose “non-compete” contract clauses, meaning that if workers leave they are unable to use their skills and human capital to work for other employers in the same industry. Nearly half of all technical professions now require workers to sign non-compete clauses, and this practice has spread to low-wage jobs including those in hair salons and restaurants.
The lower the wages the more abusive the conditions. Workers in the food and hotel industries, agriculture, construction, domestic service, call centers, the garment industry, warehouses, retail sales, lawn service, prisons, and health and elder care suffer the most. Walmart, for example, which employs nearly 1 percent of the U.S. labor force (1.4 million workers), prohibits casual conversation, which it describes as “time theft.” The food industry giant Tyson prevents its workers from taking toilet breaks, causing many to urinate on themselves; as a result, some workers must wear diapers. The older, itinerant
are subjected to grueling 12-hour shifts in which the company electronically monitors every action to make sure hourly quotas are met. Some Amazon workers walk for miles on concrete floors each shift and repeatedly get down on their hands and knees to perform their jobs. They frequently suffer crippling injuries. The company makes injured employees, whom it fires, sign releases saying the injuries are not work-related. Two-thirds of workers in low-wage industries are victims of wage theft, losing an amount estimated to be as high as $50 billion a year. From 4 million to 14 million American workers, under threat of wage cuts, plant shutdowns or dismissal, have been pressured by their employers to support pro-corporate political candidates and causes.
The corporations that in effect rule the lives of American workers constitute what University of Michigan philosophy professor Elizabeth Anderson refers to as “private governments.” These “workplace governments,” she writes, are “dictatorships, in which bosses govern in ways that are largely unaccountable to those who are governed. They don’t merely govern workers: they dominatethem.” These corporations have the legal authority, she writes, “to regulate workers’ off-hour lives as well—their political activities, speech, choice of sexual partner, use of recreational drugs, alcohol, smoking, and exercise. Because most employers exercise this off-hours authority irregularly, and without warning, most workers are unaware of how sweeping it is.”
“If the U.S. government imposed such regulations on us, we would rightly protest that our constitutional rights were being violated,” Anderson writes in her book “Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It).” “But American workers have no such rights against their bosses. Even speaking out against such constraints can get them fired. So most keep silent.”
Once workers sign contracts they essentially cede their rights as citizens to the corporations, except the few rights guaranteed by law, for the duration of the contracts. “Employers’ authority over workers,” Anderson writes, “outside of collective bargaining and a few other contexts, such as university professors’ tenure, is sweeping, arbitrary, and unaccountable—not subject to notice, process, or appeal. The state has established the constitution of the government of the workplace; it is a form of private government.” These corporations, by law, can “impose a far more minute, exacting, and sweeping regulation of employees than democratic states do in any domain outside of prisons and the military.”
These myriad corporate dictatorships, or private governments, ensure American workers are docile and compliant as the superstructure of the corporate state cements into place a species of corporate totalitarianism. The ruling ideology of neoliberalism and libertarianism, used to justify the corporate domination and social inequality that afflict us, sells itself as the protector of freedom and liberty. It does this by subterfuge.It claims workers have the freedom to enter into employment contracts and terminate them, while ignoring the near-total suspension of rights during the period of employment. It pretends that workers and corporations function as independent and autonomous sellers and buyers, with workers selling their labor freely and corporate owners buying this labor.
This neoliberal economic model, however, is defective. The relationship between the corporation and the worker is not the same as the relationship between a self-employed baker, for example, and his customers. The self-employed baker and those who buy the bread appeal to mutual self-interest in the exchange. “The buyer is not an inferior, begging for a favor,” Anderson writes. “Equally importantly, the buyer is not a superior who is entitled to order the butcher, the brewer, or the baker to hand over the fruits of his labor. Buyers must address themselves to the other’s interests. The parties each undertake the exchange with their dignity, their standing, and their personal independence affirmed by the other. This is a model of social relations between free and equal persons.” (Emphasis by the author.)
Once a worker is bonded to a corporation, however, he or she instantly loses this dignity, standing and personal independence, especially if the job is temporary, entry-level or menial. Relations are no longer free and equal.
“When workers sell their labor to an employer, they have to hand themselvesover to their boss, who then gets to order them around,” Anderson writes. “The labor contract, instead of leaving the seller free as before, puts the seller under the authority of their boss.” The worker either fulfills the demands of management, which he or she has little ability to question or formulate, or is reprimanded, demoted, sanctioned or fired. The corporate manager wields total authority over the worker. “The performance of the contract embodies a profound asymmetry in whose interests count,” Anderson writes, “henceforth, the worker will be required to toil under conditions that pay no regard to his interests, and every regard for the capitalist’s profits.”
Neoliberalism posits that the choice is between a free market and state control, whereas, as Anderson writes, “most adults live their working lives under a third thing entirely: private government.” Neoliberalism argues that the essence of freedom is free enterprise, while never addressing workers’ surrender of basic freedoms. Neoliberalism holds out the promise, which has not been true since before the Industrial Revolution, that workers can become self-employed if they are hardworking and innovative. We all have the ability to achieve economic independence or become industry leaders if we draw on our inner resources, according to the neoliberal mantra, one popularized by mass culture.
The neoliberal ideologues’ solution to the cannibalization of the economy is to call for fostering a nation of entrepreneurs. This is a con. Corporations and their lobbyists write the laws and the legislation, creating a two-tiered legal system in which poverty is criminalized and we are controlled, taxed and punished. The corporate oligarchs, however, live in a world where monopoly, fraud and other financial wrongdoing are legal or rarely punished and taxes are minimal or nonexistent. Among the population, only a tiny percentage—most of whom come from inherited wealth and have been groomed in elitist, plutocratic universities and institutions—dominate the corporate hierarchy. Public discourse, controlled by corporate power, ignores this one-sided power arrangement. It cannot address a problem it refuses to acknowledge. Subjugation is freedom.
Anderson calls this corporate economic system communist—that’s communist with a small “c”—because these private governments “own all the nonlabor means of production in the society it governs. It organizes production by means of central planning. The form of the government is a dictatorship. In some cases, the dictator is appointed by an oligarchy. In other cases, the dictator is self-appointed.” Private governments, their sanctioning powers lacking the state’s ability to imprison or execute (although they often have internal [pvt/ Katrina NO?] security forces with the power to arrest), ensure compliance by using wholesale surveillance and the threats of demotion and exile, plus the potential rewards of salary raises and promotions. Also, there usually is a steady barrage of company propaganda.
“We have the language of fairness and distributive justice to talk about low wages and inadequate benefits, we know how to talk about the Fight for $15, whatever side of this issue you are on,” Anderson writes. “But we don’t have good ways to talk about the way bosses rule workers’ lives.”
American workers have never achieved the array of rights won by workers in other industrialized countries. At the height of union representation in 1954, only 28.3 percent of American workers were union members. This number has fallen to 11.1 percent, with only 6.6 percent of private-sector workers belonging to unions. Wages have for decades declined or been stagnant. Half of all U.S. workers make less than $29,000 a year, effectively putting their families in poverty.
Workers, lacking unions and the ability to pressure management through collective bargaining, have no say in their working conditions. If they choose to leave abusive employment, where do they go? The inequalities and the workers’ loss of liberty and agency are embedded within the corporate structure. It is impossible, as Anderson warns, to build a free, democratic society dominated by private governments. As these private governments merge into the superstructure of the corporate state we are cementing into place an unassailable corporate tyranny. It is a race against time. Our remaining freedoms are being rapidly extinguished. These omnipotent dictatorships must be destroyed, and they will only be destroyed by sustained popular protest such as we see in the streets of Paris. Otherwise, we will be shackled in 21st-century chains.
==
==
https://www.jsonline.com/story/opinion/contributors/2018/09/23/secret-cash-helped-those-who-rewrote-state-law-block-lead-claims/1405053002
no lnx
Secret cash helped those who rewrote Wisconsin law to block claims of lead-poisoned kids
ONE ADVOCATE CALLS WISCONSIN THE ‘DARKEST OF DARK MONEY STATES’ AS MILLIONS FLOW INTO RACES FOR GOVERNOR, LEGISLATURE AND STATE SUPREME COURT
Pawan Naidu
Published 3:51 p.m. CT Sept. 23, 2018
At age 2, Yasmine Clark was lead-poisoned so severely that she had to be hospitalized for emergency chelation treatment to cleanse her blood of life-threatening levels of the heavy metal.
At age 5, Yasmine was again diagnosed with lead poisoning. She suffered significant brain damage. Her IQ declined. She developed attention deficit hyperactivity disorder.
So, in 2006, at age 5, Yasmine became a plaintiff in a Milwaukee County lawsuit filed against multiple paint companies, including National Lead, now called NL Industries, which had made lead paint like that found in the rental homes where she was raised in Milwaukee.
She was among about 170 Wisconsin children named as plaintiffs in lawsuits against the paint companies. The suits sought compensation for medical expenses and other damages for what their attorneys said were severe and permanent injuries from ingesting lead-tainted paint chips.
While these children had compelling personal stories, NL Industries had something even more powerful on its side: Republican politicians facing recall elections in 2011 and 2012 who secretly benefitted from $750,000 contributed by NL’s owner, Harold Simmons, to an “independent” political group.
At the request of NL’s lobbyist, Republicans inserted a handful of words into the 2013-15 state budget that sought to halt such lead-paint lawsuits, including the one filed by Yasmine, according to a memo obtained by the Center for Media and Democracy, a left-leaning watchdog organization that exposes corruption in government.
The politicians’ effort — ultimately blocked by judges — demonstrates the power of secret contributions to reshape state law while the public is kept in the dark.
Contributions up, citizens alarmed
The flow of cash to outside groups seeking to influence Wisconsin elections has widened since the U.S. Supreme Court’s 2010 Citizens United decision held that corporations could not be barred from making so-called independent expenditures. The court declared that corporations have the same First Amendment free speech rights as do people.
George Penn, a volunteer with South Central Wisconsin United to Amend, presents to the group at the Sequoya Library in Madison on April 10. The nonpartisan citizens group meets twice a month to discuss ways to overturn the U.S. Supreme Court's 2010 Citizens United decision that loosened restrictions on campaign contributions.
(Photo: Coburn Dukehart, Wisconsin Center for Investigative Journalism)
In 2015, the Wisconsin Supreme Court threw out a state-led John Doe investigation into coordination between Gov. Scott Walker’s campaign, Club for Growth and other “issue ad” groups by overturning a state law that prohibited such coordination. The four conservative members of the court who ordered an end to the investigation had themselves been beneficiaries of an estimated $8 million in outside spending by the same political groups under scrutiny in the Walker investigation.
Later that year, the Wisconsin Legislature passed a law that allows corporations to donate to political parties and legislative campaign committees. The law overturned a corporate contribution ban that had been in place since 1905. Republicans said the change gave corporations parity with labor unions, which could contribute to political parties and which traditionally supported Democrats.
The loosening of Wisconsin’s rules comes as a large majority of the American public is concerned about the influence of money in politics. A nationwide poll released in June by the bipartisan Democracy Project found that 77% of respondents agreed that “the laws enacted by our national government these days mostly reflect what powerful special interests and their lobbyists want.”
Activists, alarmed by the rise of corporate influence on politicians and the electoral process, are fighting back.
United to Amend, a nonpartisan national campaign active in Wisconsin, aims to get local and state governments to endorse changing the U.S. Constitution to counteract the effects of Citizens United. And several states, including Arizona, Colorado, Massachusetts, Missouri, North Dakota and South Dakota, have or are working toward measures on the November ballot that seek to further regulate campaign spending.
Four powerful words
The Guardian news organization, citing leaked documents from the Wisconsin John Doe investigation, found that lead executive Simmons had made donations totaling $750,000 to Wisconsin Club for Growth between April 2011 and January 2012. The spending was used to beat back recall elections against Walker and Republican senators sparked by passage of the controversial Act 10 collective bargaining law.
Lead poisoning of children has largely been tied to contact with old, peeling paint. Here, a Milwaukee rental home is investigated for lead in a 2015 inspection. Language was inserted into the 2013-15 state budget at the request of a paint industry lobbyist whose client had secretly given $750,000 to a group seeking to help Gov. Scott Walker and Senate Republicans recalled in 2011 and 2012. The budget language sought to block lawsuits filed on behalf of lead-poisoned children, but that move ultimately failed.
[Photo taken Nov. 23, 2015.
In 2013, four words were inserted into an omnibus budget motion passed in the early morning hours by the Republican-run Joint Finance Committee.
Those words, “whenever filed or accused,” effectively halted the claims of Yasmine and the other 170 or so lead-poisoned children by retroactively exempting NL Industries and the other lead-paint manufacturers from liability.
In the memo obtained by the Center for Media and Democracy, Senate Majority Leader Scott Fitzgerald, R-Juneau, documented the request by NL lobbyist Eric Petersen to insert the language into the budget.
Milwaukee attorney Peter Earle represents plaintiffs
Milwaukee attorney Peter Earle represents plaintiffs suing paint companies for lead poisoning. Four words inserted into the 2013-15 state budget at the request of a paint industry lobbyist sought to block the plaintiffs from pursuing claims against the industry, but two judges ruled the move could not block the lawsuits, allowing them to proceed.
(Photo: Kevin Harnack, Wisconsin Law Journal)
Attorney Peter Earle, who represented Yasmine in the lead-paint case, said the language inserted into the 2013-15 budget was “obscure and last-minute,” and added “without notice, sponsors or a public hearing.”
“It was done because of greed,” the Milwaukee attorney said. “Politicians chose the interests of their donors and corporate special interest groups over the rights of innocent children.”
The secretive budget move was short-lived, however. Milwaukee County Circuit Judge David Hansher found that Yasmine had the right to bring her lawsuit, a decision that was upheld on appeal.
“The sole inquiry before the court is whether it is constitutional for the Legislature to deprive innocent and injured plaintiffs of their vested right to pursue claims against manufacturers and sellers of white lead carbonate,” Hansher wrote. “In this Court's view, it is not.”
In 2017, Hansher granted a motion filed by Earle to dismiss the case with the option of re-filing it at a later time. Earle said he cannot discuss the reasons for the dismissal.
‘Darkest of dark money states’
Wisconsin and Florida are the only two states in the nation that have legalized coordination between candidates and outside special interest groups that engage in “issue advocacy,” according to Daniel Weiner, senior counsel at New York University’s Brennan Center for Justice, which aims to reform, revitalize and defend democracy and justice.
Contributions to “issue ads,” which often support or oppose candidates without using words including “vote for” or “vote against,” are not required to be reported to the Wisconsin Ethics Commission.
David Buerger, staff counsel at the ethics commission, said the state now bans coordination only involving “express advocacy” — communication that specifically calls for the election or defeat of a candidate.
In a 2015 move that further obscures the influence of money on politics, Wisconsin’s Legislature on a party-line vote eliminated the requirement that candidates list the employers of their donors, removing a key detail behind publicly reported campaign contributions.
In the same bill, lawmakers legalized unlimited contributions to political parties and legislative campaign committees, except for corporations and groups such as labor unions, which can contribute up to $12,000 a year.
Madison attorney Mike Wittenwyler is a campaign finance law specialist. Polls show most Americans are concerned about loosening restrictions on campaign contributions, but Wittenwyler agrees with court decisions that have found spending on elections to be a free-speech right. "I want to live in a society where everyone is allowed to speak without any government oppression of what you're going to hear." Wittenwyler appears here on Wisconsin Public Television explaining coordination in campaign finance law in 2014.
(Photo: Wisconsin Public Television)
Mike Wittenwyler, a Madison attorney who specializes in campaign finance issues and who has represented outside political groups, said the law changes were “long overdue.” The last major rewrite was in the 1970s, he said, prior to several key court decisions that clarified the limits and rights of donors and candidates.
A Marquette Law School poll found that most citizens of Wisconsin disagreed with the Legislature’s 2015 decision to remove contribution limits on state political parties. In a poll, 61% of respondents said they opposed unlimited contributions, while 13% supported them. Another 25% said they had not heard enough on the issue.
Taken together, these changes have made Wisconsin the “darkest of dark money states,” said Jay Heck, executive director of the Common Cause in Wisconsin, which promotes clean, open and responsive state government.
Matt Rothschild, executive director of the Wisconsin Democracy Campaign, another good government group, offers a similar assessment. “Wisconsin,” he said, “is open for bribery.”
Matt Rothschild, executive director of the Wisconsin
Matt Rothschild, executive director of the Wisconsin Democracy Campaign, speaks at Maps Madness: Voters vs. Politicians, a rally organized by the Wisconsin Fair Maps Coalition on March 7, 2018. Rothschild has called the secretive process used by Republicans in the Legislature in 2011 a “grotesque” deprivation of people’s “First Amendment rights to speak and be heard.”
(Photo: Cameron Smith, Wisconsin Center for Investigati)
Weiner said secret campaign contributions can come from interests on the left or the right, especially in state elections.
“On the state level, we see a lot more ‘Company X wants a mining concession,’ or something like that,” Weiner said. “And they put a lot of dark money in to basically influence legislative officials to get what they want.”[see dark money doc on montana]
That is not just an idle example. Documents briefly unsealed during the John Doe investigation show that Gogebic Taconite secretly donated $700,000 to Wisconsin Club for Growth during the recalls in 2011 and 2012. The next year, in 2013, Walker signed the bill loosening mining restrictions — a bill that Senate Majority Leader Fitzgerald acknowledged in a video was written by the company seeking to build a controversial mine in northern Wisconsin. After several years, the company abandoned the project as not feasible.
People vs. Citizens United
Some advocates for stricter campaign finance laws feel that the only way to blunt such corporate influence over the political system is with a constitutional amendment to override the Citizens United decision.
Wisconsin United to Amend is mobilizing people to sign a petition and to convince city councils and town and village boards to vote on resolutions calling for this constitutional amendment.
The campaign’s messages are: “Money is not speech” and “Corporations are not people.” Currently, more than 130 local governments in Wisconsin and 19 state legislatures have passed the resolution.
“More and more people are understanding … these politicians cannot fix it, because they are bought by those who don’t want to fix it,” said George Penn, a representative from South Central Wisconsin United to Amend.
Many on the left see the Citizens United decision as a stab at the heart of democracy. Wittenwyler takes the opposite view. He believes the decision expands free speech rights.
“Everyone should be able to speak and you shouldn’t make arbitrary decisions based on how an entity may or may not be established,” Wittenwyler said. “I want to live in a society where everyone is allowed to speak without any government oppression of what you’re going to hear.”
Voter John Tyler, speaking outside his Lake Mills polling station during the Aug. 14 primary election, said corporations have too much influence in our democracy.
“How is the regular person supposed to stand up and be counted compared to corporations that give millions of dollars and influence policy and have the legislatures just do what they wanted?” Tyler asked.
Eric Blumreich, a Green Bay resident who participated in Wisconsin Public Radio’s Beyond the Ballot series, agreed. But he believes voters still have some leverage.
“The 2016 presidential election was decided by razor-thin victories for (President) Trump in Wisconsin, Michigan and Pennsylvania,” Blumreich said in an email. “In my opinion, this indicates that your vote counts in Wisconsin and that vote is perhaps the best indicator … when it comes to political power and having a voice.”
Dee J. Hall contributed to this story, which was produced as part of an investigative reporting class in the University of Wisconsin-Madison School of Journalism and Mass Communication under the direction Hall, the Wisconsin Center for Investigative Journalism’s managing editor.
==
==
evil b/c corps grab progressive wins, eg 14th, PACs,
newspaper co's 1936 huey Long, 2c tax on lies (ad tax),scotus? broadens press rights
lewis powell and ralph nader 70's drugs (Va pharamcy ads with drug prices) = listener's right --> CU
apple fended off fbi req on iphone based on corp personhood?
webster hired by corps, won them rights?
14th --> brown v bd, lgbt
Bank of US v devo
https://en.wikipedia.org/wiki/Bank_of_the_United_States_v._Deveaux
interview fundraising
https://kpfa.org/episode/letters-and-politics-may-16-2018/
==
==
conklin nom scotus 2x? last guy to turn down after confirm b/c making too much $ as lawyer for RR (he said explicitly)
adam winkler
https://kpfa.org/episode/letters-and-politics-october-3-2018/
28 14th AA mostly lost, v 311
sprr 2nd corp pers case?! afte san mateo 1882?
corps use personhood to override legislation
apple v fbi iphone
hwy thru ggl campus w/ compensation
but corps do not need ALL rights of ppl ([where to draw line? they have lots of lawyers ad lobbyists]
huey long LA put advert tax on newspapers (on lies) so newspapers sued (corps) pentagon paPERS,, V BALDWIN TO CrIT GOvT OFFICIALS
1st AMend expand NaDer consumer pharmacy advertize drug prices landmark case, consumer have 1st amebnd listener's right jiu jitsu to CU
4th Amend, PAC etc co-opt left/progressive to expand corp power (nader Va case led to many uses to DISadvantage consumer?
1st Roman, had to re-org on ppl die; mining corps 1st mass pollution
roman cath church claims in 3rd C AD; in MAges used for non-biz eg NRA sierra club now
...
corps use personhood to override legislation
apple v fbi iphone
hwy thru ggl campus w/ compensation
but corps do not need ALL rights of ppl ([where to draw line? they have lots of lawyers ad lobbyists]
huey long LA put advert tax on newspapers (on lies) so newspapers sued (corps) pentagon paPERS,, V BALDWIN TO CrIT GOvT OFFICIALS
1st AMend expand NaDer consumer pharmacy advertize drug prices land mark case, consumer have 1st amebnd listener's right jiu jitsu to CU
Lewis pwl ~ nader; memo turned into const law; --> ballot measure;--> CU
corps seek new rights eg masterpiece bakeshop LTD
60's race cases claimed const protection but lost.
==
===
no date post 2014?
Imagine for a moment, putting the rights of nature into public policy: Your town charter, your state constitution, or even federal law.
Imagine, for a moment, giving the Great Lakes—the world’s largest source of fresh water—the right to exist and evolve naturally, to be free from pollutants that could contaminate and harm the lives that rely on it.
Imagine that we, as Americans, have the right to lawfully stop anything that violated the rights of the Great Lakes. That means the right to stop anything that would cause harm to the ecosystem.
That ecosystem provides tens of millions of people with the fresh water they use to drink, bathe, cook, and farm.
The idea is called community rights, and it’s popping up around the world and across the country, and it is meant to stop anything causing an adverse effect on the ecosystem.
Ecuador has it enshrined in their constitution. Here in the U.S., when the community can see the harm being caused by, for example, fracking, the community can say, “this is harmful, and the polluting company doesn’t have the right to do that.” Pittsburgh did just that.[beat? no that was st louis missouri? peabody coal?]
A company might have a permit to allow them to emit, dump, or otherwise pollute, but with community rights, the community has the right to protect themselves from legalized harm.
And it’s not just fracking waste that it can stop. Dumping from farms, oil drilling, and factories too—basically anything causing an adverse effect on the ecosystem and life, the community can say, “this is harmful, and they don’t have the right to do that.”
It’s about communities passing laws to create a society you want your children and grandchildren and great-grandchildren to live in.
And that is exactly what activists in Toledo, Ohio, are seeking to do. The western basin of Lake Erie has experienced extreme toxic algae blooms that have contaminated the drinking water of nearly half a million people in the region, sometimes causing citizens of the Midwestern city to go days without fresh water. The algae blooms are attributed to nutrient runoff in agriculture and sewage.
Of course, agriculture is permitted to use nutrients. There are “harms we allow, and they are within the allowable limits. Even with all these permits and permissions, we are still seeing the harmful effects,” says Markie Miller, an organizer with Toledoans for Safe Water. “Something’s not working.”
In August, Toledoans for Safe Water turned in petitions to put a community rights-based initiative on the ballot, with over 10,000 signatures. It’s called the Lake Erie Bill of Rights, and if implemented, would recognize the right of Lake Erie “to be healthy and free from pollution that today is killing the Lake and depriving surrounding communities of safe water.”
Miller says she studied environmental studies and environmental science in college. The emphasis in those programs was on getting a job working on regulations, or in companies to comply with regulations. That seemed to sidestep the real issues of environmental justice, so Miller turned to the community rights movement.
Miller is tired of the messaging around environmental disasters. “We don’t want to put up with allowable harm,” she continues. “We don’t just want to be prepared for algae.” That mentality, Miller explains, is reactive. “We want something proactive.”
She and fellow activists connected with the Community Environmental Legal Defense Fund, CELDF, a public interest law firm operating with communities across the U.S. and rights of nature work in other countries. Together they drafted the Lake Erie Bill of Rights and started collecting signatures and talking about it.
Tish O’Dell, Ohio Community Organizer for CELDF, initially got involved in the movement because her community of Broadview Heights, Ohio, was threatened by oil and gas drilling.
It was here she and her fellow community members passed a Bill of Rights in 2012. Despite the Bill of Rights being appealed, the community sued by the company, and ultimately losing, the company hasn’t drilled since the bill was originally passed.
“They started drilling and getting people to sign leases, promising wealth beyond imagine,” O’Dell explains. “Oil spilled in a creek outside people’s homes. The fire department would evacuate people. We had an elementary school, and something broke on a well next door, and it spilled oil on the playground at recess. That woke people up. Then when people started going to city council and saying, ‘This is BS. Stop this,’ they said, ‘we can’t do anything, the state has control over this.’ Then the obedient citizens we are, we went to the state.”
O’Dell says the state sent them to EPA, and then to the state Department of Public Health. “No one would take responsibility. It was like the scarecrow pointing in different directions.”
O’Dell says they were told the drilling was safe and that it would bring jobs.
CELDF helped them draft a bill of rights, for clean air, water, and soil. It passed. Then, it became, “Our law says your permit violates our law, so we’re not going to recognize your permit in our community,” she says.
“We don’t have the kind of government we thought we did,” says O’Dell of the lost court battles that ensued.
Now, the local board of elections in Ohio has the right to keep citizen initiatives off the ballot based on content, “which shouldn’t be happening,” says Miller, “whether or not someone agrees with the content. We have a city charter, and we should be able to take it to the people and let them decide. Our local board of election should not be the gatekeeper for something like that.”
And yet, it is. The local BOE kept the Lake Erie Bill of Rights initiative off the ballot, and the Ohio Supreme Court blocked the initiative on appeal. Toledoans for Safe Water said they are filing a motion to reconsider.
“It was devastating to be without water for 3 days in 2014. This is worse,” Crystal Jankowski, an organizer for the Lake Erie Bill of Rights, said in a press release. “To know that the Lake and my children are at risk because it is legalfor the polluters to pollute us, while our own government makes it illegal for us to propose a law to protect the Lake and our children, is beyond devastating. It is the realization that we not only have a water crisis, but we also have a democracy crisis.”
“We the people are following laws written by corporations for their benefit. It’s greed,” says O’Dell.
“They’re using our communities as resource colonies,” she added.
No matter what happens, the battle over local control of the natural environment won’t end here in the Ohio Supreme Court. The health of future generations—the very water they drink—depends on what communities can do today to protect themselves and those to come in the future.
Learn more about community rights, Ohio community rights, and CELDF.
This article was produced by Local Peace Economy, a project of the Independent Media Institute.
===
==
https://www.ratical.org/corporations/TCoB.html
| TAKING CARE OF BUSINESS |
|---|
| Citizenship and the Charter of Incorporation |
| by Richard L. Grossman and Frank T. Adams |
| 1993 |
===
evil b/c corps grab progressive wins, eg 14th, PACs,
newspaper co's 1936 huey Long, 2c tax on lies (ad tax),scotus? broadens press rights
lewis powell and raplh nader 70's drugs (Va pharamcy ads with drug prices) = listener's right --> CU
apple fended off fbi req on iphone based on corp personhood?
webster hired by corps, won them rights?
14th --> brown v bd, lgbt
Bank of US v devo
interview fundraising
https://kpfa.org/episode/letters-and-politics-may-16-2018/
==
===
webster hired by corps, won them rights?
14th --> brown v bd, lgbt
Bank of US v devo
https://en.wikipedia.org/wiki/Bank_of_the_United_States_v._Deveaux
interview fundraising
https://kpfa.org/episode/letters-and-politics-may-16-2018/
==
==
In 2017, New Zealand's parliament granted the Whanganui River, called Te Awa Tupua by the Maori, the legal rights of a person, something the local Maori had petitioned for since 1873. The move honored the persistence of indigenous activists, who are often on the forefront of struggles to protect the environment, and signals that settler governments might finally be willing to learn from a worldview that places fewer separations between human beings and the planet. The legislation included money for compensation and for improving the river's health, and paved the way for Mount Taranaki to be offered similar legal status later that year.
==
What does former U.S. Senator Olympia Snowe, a Republican from Maine, have in common with former State Senator and current President of Our Revolution Nina Turner, a progressive from Ohio? They both support a 28th Amendment to the U.S. Constitution so people, not money, govern America.
Dark money attack ads paint the picture of a country divided, but when it comes to getting money out of politics, Americans stand together. And based on findings from the Government of Citizens, Not Money report released today by American Promise, Take Back Our Republic, and Fix It America, there is significant cross-partisan support for an amendment to the U.S. Constitution that would allow Congress to set reasonable limits on campaign spending and secure political equality for all Americans.
Using data from voting records for state and federal officials, poll results, public statements, and ballot initiatives, the report identifies over 200 Republican lawmakers including former U.S. Senator Olympia Snowe (R--ME) and former U.S. Senator Alan Simpson (R--WY) who support the 28th Amendment.
The report also demonstrates that nearly 80 percent of Americans are united in support for the 28th Amendment.
===
am promise:
The 28th Amendment is winning everywhere, not just in New Mexico and New Hampshire. In Wisconsin, Citizen Leaders are pushing their legislature to put a resolution on the ballot after nearly 100 local communities passed resolutions – including one in Speaker Paul Ryan’s hometown, Janesville, WI, where it passed with 84 percent support.
3/18
===
https://www.desmogblog.com/2014/02/13/st-louis-judge-cites-citizen-united-protect-tax-breaks-peabody-energy
7/14:{ }::{_Missouri}:__ _Governor Nixon signed SB 672, with Amendment 135.980 from the state legislature — where Peabody spent almost half a million dollars in the last two elections) which bans the City of St. Louis from restricting through ballot initiative public financial incentives for coal mining companies for two years, basically stopping giving incentives to coal companies and help create a green economy. While the case was pending, the mayor’s office pushed a curious amendment to an obscure state bill. In the middle of a bill about county prosecutors and sewer districts, you’ll find a provision that specifically prohibits the city of St. Louis from passing, by ballot measure, any restrictions on tax breaks for coal mining companies. There’s only one coal mining company in St. Louis known to receive city tax breaks: Peabody Energy.
This story began when ordinary citizens joined together and took a stand against both climate change and their city’s destructive practice of granting enormous tax breaks to big business while cutting funding for public services. They talked to thousands of residents who were upset that St. Louis keeps giving away tens of millions of dollars of badly needed public money to Peabody Energy (the world’s largest private-sector coal company). They collected over 22,000 signatures — more than 10 percent of all the voters in St. Louis — on a petition for a ballot initiative. The city’s elections board verified the signatures, and began preparing to print ballots. The coal company’s lawyers rushed to court and asked a judge to block the election on the grounds that the law would unfairly discriminate against the coal company and its business partners, in violation of the Equal Protection Clause. At the trial, Take Back St. Louis provided evidence about the environmental damage caused by burning coal, and the damage to the fabric of St. Louis caused by the city’s penchant for giving away public dollars to big business. The other side didn’t put any witnesses on the stand.
The judge also opined that the Equal Protection Clause of the United States Constitution - which was passed after the Civil War to protect the rights of newly-freed slaves - prevents the people of St. Louis from voting on the initiative. The opinion cites the infamous Citizens United decision to suggest that coal companies have the same rights as people, which effectively means that corporate tax breaks are off-limits for voters. Before the people even had an opportunity to vote, the judge decided that fossil fuel energy companies and their major business partners are entitled to judicial protection from the democratic process. It is unusual in itself that this ruling would occur before residents even had a chance to vote on the initiative. Usually, initiatives go before voters and legal proceedings happen if the initiative passes. CA Prop 49 on corporate personhood was also pulled from the ballot, though for arguably less evil reasons.
==
https://www.c-span.org/video/?427014-8/we-corporations
https://www.amazon.com/We-Corporations-American-Businesses-Rights/dp/0871407124
winkler ucla
We the Corporations chronicles the revelatory story of one of the most successful, yet least known, “civil rights movements” in American history.
. Hardly oppressed like women and minorities, business corporations, too, have fought since the nation’s earliest days to gain equal rights under the Constitution―and today have nearly all the same rights as ordinary people.
Exposing the historical origins of Citizens United and Hobby Lobby, Adam Winkler explains how those controversial Supreme Court decisions extending free speech and religious liberty to corporations were the capstone of a centuries-long struggle over corporate personhood and constitutional protections for business. Beginning his account in the colonial era, Winkler reveals the profound influence corporations had on the birth of democracy and on the shape of the Constitution itself. Once the Constitution was ratified, corporations quickly sought to gain the rights it guaranteed. The first Supreme Court case on the rights of corporations was decided in 1809, a half-century before the first comparable cases on the rights of African Americans or women. Ever since, corporations have waged a persistent and remarkably fruitful campaign to win an ever-greater share of individual rights.
Although corporations never marched on Washington, they employed many of the same strategies of more familiar civil rights struggles: civil disobedience, test cases, and novel legal claims made in a purposeful effort to reshape the law. Indeed, corporations have often been unheralded innovators in constitutional law, and several of the individual rights Americans hold most dear were first secured in lawsuits brought by businesses.
Winkler enlivens his narrative with a flair for storytelling and a colorful cast of characters: among others, Daniel Webster, America’s greatest advocate, who argued some of the earliest corporate rights cases on behalf of his business clients; Roger Taney, the reviled Chief Justice, who surprisingly fought to limit protections for corporations―in part to protect slavery; and Roscoe Conkling, a renowned politician who deceived the Supreme Court in a brazen effort to win for corporations the rights added to the Constitution for the freed slaves. Alexander Hamilton, Teddy Roosevelt, Huey Long, Ralph Nader, Louis Brandeis, and even Thurgood Marshall all played starring roles in the story of the corporate rights movement.
==
yikes
According to the newest poll on the NFL imbroglio, 64 percent of Americans believe that the league should force its players to stand during the opening performance of “The Star Spangled Banner.”
One can almost hear the whimpers of progressives stressing the importance of “free speech.” The reality is that most Americans don’t know, and wouldn’t care if they did.
The University of Pennsylvania’s Annenberg Public Policy Center recently discovered that 37 percent of Americans could not identify a single freedom that the First Amendment of the Constitution guarantees. Only one in four Americans could correctly name all three branches of government.
==
Lawsuit Seeks Personhood Rights for Colorado River
https://www.ecowatch.com/colorado-river-lawsuit-2489790989.html
A lawsuit filed Monday is seeking to establish personhood rights for the Colorado River--a unique move that could have larger implications for environmental law.
The suit, brought by Denver lawyer Jason Flores-Williams against Colorado and Gov. John Hickenlooper, names the river itself as a plaintiff and environmental group Deep Green Resistance as an ally of the body of water to appear in court on its behalf.
Flores-Williams says the suit is intended to force humans to take better care of natural resources by creating a legal consequence for inaction. The river, which supplies water for 36 million people in seven states, has been egregiously overused, and studies have shown climate change is already causing the river to shrink.
As reported by the New York Times:
"If a corporation has rights, the authors argue, so, too, should an ancient waterway that has sustained human life for as long as it has existed in the Western United States. The lawsuit claims the state violated the river's right to flourish by polluting and draining it and threatening endangered species. The claim cites several nations whose courts or governments have recognized some rights for natural entities."
For a deeper dive:
==
9/17
https://movetoamend.org/wethepeopleamendment
HJR 48 1/17 Nolan
42 dems and
Rep. Jones, Walter B., Jr. [R-NC-3]*
Rep. McCollum, Betty [D-MN-4]* 01/30/2017
Rep. Cartwright, Matt [D-PA-17]* 01/30/2017
Rep. Ellison, Keith [D-MN-5]* 01/30/2017
Rep. Pocan, Mark [D-WI-2]* 01/30/2017
Rep. Takano, Mark [D-CA-41]* 01/30/2017
Rep. Blumenauer, Earl [D-OR-3]* 01/30/2017
Rep. DeFazio, Peter A. [D-OR-4]* 01/30/2017
Rep. O'Rourke, Beto [D-TX-16]* 01/30/2017
Rep. Slaughter, Louise McIntosh [D-NY-25]* 01/30/2017
Rep. Grijalva, Raul M. [D-AZ-3]* 01/30/2017
Rep. Lee, Barbara [D-CA-13]* 01/30/2017
Rep. Conyers, John, Jr. [D-MI-13]* 01/30/2017
Rep. Engel, Eliot L. [D-NY-16]* 01/30/2017
Rep. Tonko, Paul [D-NY-20]* 01/30/2017
Rep. Raskin, Jamie [D-MD-8]* 01/30/2017
Rep. Khanna, Ro [D-CA-17]* 01/30/2017
Rep. Capuano, Michael E. [D-MA-7]* 01/30/2017
Rep. Lieu, Ted [D-CA-33]* 01/30/2017
Rep. Norcross, Donald [D-NJ-1]* 01/30/2017
Rep. Jones, Walter B., Jr. [R-NC-3]* 01/30/2017
Rep. Beyer, Donald S., Jr. [D-VA-8] 02/01/2017
Rep. Serrano, Jose E. [D-NY-15] 02/01/2017
Rep. Huffman, Jared [D-CA-2] 02/06/2017
Rep. Norton, Eleanor Holmes [D-DC-At Large] 02/06/2017
Rep. Bonamici, Suzanne [D-OR-1] 02/28/2017
Rep. Davis, Danny K. [D-IL-7] 02/28/2017
Rep. Kilmer, Derek [D-WA-6] 03/01/2017
Rep. Adams, Alma S. [D-NC-12] 03/10/2017
Rep. Jayapal, Pramila [D-WA-7] 03/15/2017
Rep. Fudge, Marcia L. [D-OH-11] 03/15/2017
Rep. Walz, Timothy J. [D-MN-1] 03/23/2017
Rep. Kind, Ron [D-WI-3] 03/23/2017
Rep. Gabbard, Tulsi [D-HI-2] 04/04/2017
Rep. Welch, Peter [D-VT-At Large] 04/04/2017
Rep. Cummings, Elijah E. [D-MD-7] 04/06/2017
Rep. DelBene, Suzan K. [D-WA-1] 04/25/2017
Rep. Speier, Jackie [D-CA-14] 05/02/2017
Rep. Moulton, Seth [D-MA-6] 05/18/2017
Rep. Schakowsky, Janice D. [D-IL-9] 05/18/2017
Rep. Kaptur, Marcy [D-OH-9] 05/22/2017
Rep. McGovern, James P. [D-MA-2] 06/07/2017
Rep. Bass, Karen [D-CA-37] 06/15/2017
Rep. Perlmutter, Ed [D-CO-7] 06/21/2017
==
The Corporate “Free Speech” Racket
How corporations are using the First Amendment to destroy government regulation.
:{
}:
:{
}:http://washingtonmonthly.com/magazine/janfeb-2014/the-corporate-free-speech-racket/
see 1st amend for all
In late summer 2011, the National Labor Relations Board (NLRB) released a new rule requiring businesses to put up an eleven-by-seventeen-inch black-and-white poster notifying employees of their rights under federal law.
The poster, drafted over the course of a year by a committee of rule makers taking into account more than 7,000 public comments and dozens of meetings with industry groups, labor unions, and “right-to-work” advocacy organizations, emerged as would have been expected: even-keeled and rather bland. Beneath the official NLRB seal and above the phrase “This is an official government poster,” it informed employees that they have the right to join or not to join a union, and that they cannot be coerced into doing either.
Still, the business community was incensed. Describing the new rule as yet another government intrusion that would do nothing more than “create unemployment,” “weaken the economy,” and cause “immediate, irreparable harm for which no adequate remedy at law exists,” a coalition of industry groups led by the U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) launched a firestorm of litigation, eventually suing the agency in two federal appellate courts.
On its face, this little drama isn’t all that surprising. For the past decade or so, industry groups have made a habit of waging war in the form of endless litigation on regulatory agencies, hoping to slow the rule-making process, drain agency resources, and, when possible, get final rules thrown out. In most cases, these lawsuits play out in the weedy battleground of administrative law, where lawyers tussle over economic analyses or some minutiae within the Administrative Procedure Act. But this time was different.
This time, NAM, the biggest trade group in the country, was arguing that by forcing companies to “engage in speech they would not otherwise issue,” the government was “in violation of their rights under the First Amendment.”
And that, dear readers, is a pretty ballsy claim. For one, it’s a little like dealing with your gopher problem by firebombing the neighborhood. By claiming that the government cannot, under the Constitution, compel companies to “engage in speech they would not otherwise issue,” NAM is essentially undercutting nearly all economic regulation. “If that seems alarmist, it’s not,” wrote University of Tulsa law professor Tamara Piety, the author of Brandishing the First Amendment. In the legal context, the current definition of “speech” is famously fuzzy and could, depending on the situation, include very nearly everything a company does, from advertising and performing financial transactions to transferring data and utilizing computer algorithms. So if NAM’s claim were true, it’s very possible that the government couldn’t regulate any of those activities. “If you cannot regulate commercial speech,” Piety wrote, “you cannot regulate commerce, period.”
The other reason it’s such a ballsy claim is simply that until very recently, it would have been laughed out of court. Most jurisprudence from at least the past eighty or so years backs up the idea that the government, acting in the interest of the greater public, has the authority to force companies to convey certain non-ideological, government-mandated messages, so long as it’s clear that it’s the government “speaking,” not the company. Those messages can take the form of posters or warning labels, or those little placards in bathrooms reminding employees to wash their hands, or some other form of government-mandated “fine print” informing consumers, investors, shareholders, employees, or job seekers about risks or rights or government protections.
...
===
sum hist post hobby lobby
https://www.brennancenter.org/blog/hobby-lobby-argument
==
7/14
prompted by?
no vid link
http://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution
Are corporations people? The U.S. Supreme Court says they are, at least for some purposes. And in the past four years, the high court has dramatically expanded corporate rights.
It ruled that corporations have the right to spend money in candidate elections, and that some for-profit corporations may, on religious grounds, refuse to comply with a federal mandate to cover birth control in their employee health plans.
These are personal rights accorded to corporations. To many, the concept of corporations as people seems odd, to say the least. But it is not new.
The dictionary defines "corporation" as "a number of persons united in one body for a purpose." Corporate entities date back to medieval times, observes Columbia law professor John Coffee, an authority on corporate law. "You could think of the Catholic Church as probably the first entity that could buy and sell property in its own name," he says.
Indeed, having an artificial legal persona was especially important to churches, says Elizabeth Pollman, an associate professor at Loyola Law School in Los Angeles.
"Having a corporation would allow people to put property into a collective ownership that could be held with perpetual existence," she says. "So it wouldn't be tied to any one person's lifespan, or subject necessarily to laws regarding inheriting property."
Later on, in the United States and elsewhere, the advantages of incorporation were essential to efficient and secure economic development. Unlike partnerships, the corporation continued to exist even if a partner died; there was no unanimity required to do something; shareholders could not be sued individually, only the corporation as a whole, so investors only risked as much as they put into buying shares.
By the 1800s, the process of incorporating became relatively simple. But corporations aren't mentioned anywhere in the Constitution, leaving the courts to determine what rights corporations have — and which corporations have them. After all, Coca-Cola is a corporation, but so are the NAACP and the National Rifle Association, and so are small churches and local nonprofits.
"All these truly different types of organizations might come under the label 'corporation,' " Pollman observes. "And so the real difficulty is figuring out how to treat these different things under the Constitution."
In the early years of the republic, the only right given to corporations was the right to have their contracts respected by the government, according to legal historian Eben Moglen.
The great industrialization of the United States in the 1800s, however, intensified companies' need to raise money.
"With the invention of the railroad, you needed a great deal of capital to exploit its purpose, " Columbia professor Coffee says, "and only the corporate form offered limited liability, easy transferability of shares, and continued, perpetual existence."
In addition, the end of the Civil War and the adoption of the 14th Amendment provided an opportunity for corporations to seek further legal protection, says Moglen, also a Columbia University professor.
"From the moment the 14th Amendment was passed in 1868, lawyers for corporations — particularly railroad companies — wanted to use that 14th Amendment guarantee of equal protection to make sure that the states didn't unequally treat corporations," Moglen says.
Nobody was talking about extending to corporations the right of free speech back then. What the railroads sought was equal treatment under state tax laws and things like that.
The Supreme Court extended that protection to corporations, and over time also extended some — but not all — of the rights guaranteed to individuals in the Bill of Rights. The court ruled that corporations don't have a right against self-incrimination, for instance, but are protected by the ban on warrantless search and seizure.
Otherwise, as the Cato Institute's Ilya Shapiro [fedsoc] puts it, "the police could storm down the doors of some company and take all their computers and their files." [true? who?]
But for 100 years, corporations were not given any constitutional right of political speech; in fact, quite the contrary. In 1907, following a corporate corruption scandal involving prior presidential campaigns, Congress passed a law banning corporate involvement in federal election campaigns. That wall held firm for 70 years.
The first crack came in a case that involved neither candidate elections nor federal law. In 1978 a sharply divided Supreme Court ruled for the first time that corporations have a First Amendment right to spend money on state ballot initiatives.
Still, for decades, candidate elections remained free of direct corporate influence under federal law. Only money from individuals and groups of individuals — political action committees — were permitted in federal elections.
Then came Citizens United, the Supreme Court's 5-4 First Amendment decision in 2010 that extended to corporations for the first time full rights to spend money as they wish in candidate elections — federal, state and local. The decision reversed a century of legal understanding, unleashed a flood of campaign cash and created a crescendo of controversy that continues to build today.
It thrilled many in the business community, horrified campaign reformers, and provoked considerable mockery in the comedian classes.
The Daily Show [vid?]
"If only there were some way to prove that corporations were not people," lamented the Daily Show's Jon Stewart. Maybe, he mused, we could show "their inability to love."
The Colbert Report
Fellow Comedy Central comedian Stephen Colbert tried unsuccessfully to get the question of corporate personhood on the South Carolina ballot, and also formed a superPAC, which asked whether voters would be comfortable letting Mitt Romney date their daughters' corporations.
But there are serious people on both sides of this issue.
Cato's Shapiro sees all corporations, when they spend on political campaigns, as merely associations of like-minded people.
"Nobody is saying that corporations are living, breathing entities, or that they have souls or anything like that," he says. "This is about protecting the rights of the individuals that associate in this way."
Countering that argument are those who note that individuals are perfectly free to give money to candidates with whom they agree, and to spend unlimited amounts independently supporting those candidates. They shouldn't need a corporation to express themselves, the argument goes.
Some critics, like Pollman, see a difference between for-profit and nonprofit corporations. A nonprofit corporation formed to advance particular political views is one thing, she says. A large for-profit corporation is something else entirely.
"There's no reason to believe that the people involved — shareholders, employees, even the directors or managers — have come together for an expressive purpose related to anything other than really what the business is doing," she argues.
And shareholders and employees, Pollman observes, have no real recourse if they disagree with how corporate money is spent in campaigns.
And then there is the money-is-not-speech argument. The problem for First Amendment believers, Moglen says, arises not because they think corporations shouldn't have rights so much as they think money isn't equal to speech.
"And we are now winding up using constitutional rules to concentrate corporate power in a way that's dangerous to democracy," he says.
That, of course, is not how the Supreme Court majority sees its decision. The court has said that because speech is an essential mechanism of democracy, the First Amendment forbids discrimination against any class of speaker.
It matters not, the court said just this year, that some speakers, because of the money they spend on elections, may have undue influence on public policy; what is important is that the First Amendment protects both speech and speaker, and the ideas that flow from each.
---
http://www.cc.com/video-clips/wc91m5/the-daily-show-with-jon-stewart-heavy-settle
tahir sq aug 11v mit clip 3:34 jon stewart fine = cut; 2012 JPM jgoff jokes
---
colbert superpac
7 min
http://www.cc.com/video-clips/av6bvx/the-colbert-report-colbert-super-pac---coordination-resolution-with-jon-stewart
==
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2670208
In-Corp-O-Real: A Psychological Critique of Corporate Personhood and Citizens United
12 FSU Business Review 1 (2013)
109 Pages Posted: 7 Oct 2015
Teneille R. Brown
University of Utah - S.J. Quinney College of Law
Date Written: October 1, 2012
Abstract
It seems absurd today that a robot’s political speech could ever warrant First Amendment protection. And yet, fifty years ago the same claim regarding corporations would have seemed equally absurd. But here we are, with anthropomorphized corporations enjoying political free speech rights equal to ordinary human beings. While corporations are constitutional people and robots presently are not, it is not obvious that this will, or should, remain this way forever.
In the not-too-distant future, robots will more closely resemble human beings in appearance and function. When — not if — this happens, how will courts distinguish corporations from robots for constitutional civil rights analyses? Throughout this Article, I will use robots as a practical foil for corporations to reveal the errors in the way the Supreme Court impetuously granted corporations political free speech rights as entities distinct from their members.
I hope to prove that precisely because man-made corporations share more in common with robots than with human beings, we should not stretch the metaphor of personhood too far to apply our civil rights to them. Specifically, we should not bestow corporations with political speech rights that are equivalent to those of biological people based flimsily upon the fact that they metaphorically possess a few traits that humans also share...
===
11/16
Over 600 communities have passed local resolutions and over 300 ballot measures in support of a 28th Amendment. In addition to Washington, seventeen states have made similar calls for a constitutional amendment including: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Montana, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and West Virginia.
==
list of bad act-ors
https://movetoamend.org/corporate-rule
Corporate Rule Stories
}:
==
tpp and nafta tribunals:
===
fs4ppl
Nevada just became the 19th state to pass a resolution calling on Congress to propose a 28th Amendment to the Constitution to overturn Citizens United and to reclaim our democracy. On Thursday afternoon, the Nevada state assembly passed SJR 4, urging Congress to propose an amendment to the United States Constitution to allow the regulation of political contributions and expenditures.
We are now halfway to the required number of states to ratify this amendment!
==
==
https://www.democracynow.org/**2017**/5/1/massachusetts_ag_maura_healey_on_why
GOODMAN: I also spoke to Maura Healey, who participated in the elected leaders’ news conference, attorney general of Massachusetts, and asked her about her role in a suit filed by a coalition of attorneys general against ExxonMobil.
ATTORNEY GENERAL MAURA HEALEY: Well, it was just a year ago where we—when we sent subpoenas to Exxon to ask them a simple question: Tell us what you knew, when, about climate change and the impact that burning fossil fuels was going to have on the environment, because based on widely reported, publicly available information, we had concern that Exxon may not have told the truth to the public, to consumers, to its shareholders, about what it knew. We sent those subpoenas. They turned around, they sued us to try to stop us from investigating this.
So far, we’ve been fighting it out in court. So far, we’ve been winning. And I hope that soon we will get the documents from Exxon, so that we can have our questions finally answered. That’s where we’re at right now. We won in Massachusetts courts. We won in New York courts. And recently, the court in Texas dismissed the case from Texas and moved it back to New York. And we had a good hearing the other day, and we’re awaiting a decision from the court, Amy. But hopefully we’ll be in a position soon where we can continue to go forward with our investigation, so that Exxon will finally have to answer the questions that we’ve asked.
AMY GOODMAN: And explain what was the smoking gun for you. Why did you get involved with the Exxon probe?
ATTORNEY GENERAL MAURA HEALEY: Well, there was information publicly reported that detailed some of what Exxon’s executives and scientists knew decades ago about what the effect of burning fossil fuels was going to have and going to be on the environment. And based on that information—and there was other information about oil executives flying in regularly to meet with one another to talk about how they were going to handle this as a public relations matter, and concern that there was a cover-up about this information. We were then led to do what we always do, which is, when you’re faced with that kind of information, you ask questions as a state attorney general, because this is a question about: Was there fraud perpetrated on the public, on consumers, on even Exxon’s shareholders? Did they fail to disclose things that they should have disclosed because they knew certain things? And so, that’s what this investigation has been about. Unfortunately, Exxon has taken the tack of trying to stop us, state AGs, from investigating
AMY GOODMAN: How? ATTORNEY GENERAL MAURA HEALEY: Well, interestingly enough, they say that our asking questions, our sending subpoenas to them, which is something that we do regularly as state AGs—that’s our job, is to ask questions, to investigate, go where the facts take us. Instead, they sued us, claiming that our investigation interfered with Exxon’s corporate free speech rights. I don’t understand that theory. I don’t credit that theory. But that’s the theory that they’ve advanced. They’ve also, of course, tried to use Congress to shut us down, as state AGs. The House committee has been led by Lamar Smith, has been very aggressive in attempting to subpoena me and really attempting to bully us into stopping us from doing our work. And these are questions that need to be asked, and they need to be answered....
==
https://www.latimes.com/business/hiltzik/la-fi-hiltzik-lamar-smith-20170303-story.html
MICHAEL HILTZIK BUSINESS COLUMNIST
MARCH 3, 2017
2:45 PM
Rep. Lamar Smith (R-Texas) long has reigned as Congress’s preeminent climate change denier. From his perch as chairman of the House Committee on Science, Space and Technology, he’s harassed government officials, Earth scientists and other academics whose work refutes his position that the human role in climate change is a myth.
Lately, he’s moved on from trying to bully scientists by issuing subpoenas for their data and emails, to trying to bully state attorneys general investigating Exxon Mobil over allegations that it fraudulently undermined public understanding of climate change while possessing scientific evidence that the problem is real. The investigations stem in part from reporting by The Times and InsideClimate News into the company’s decades-long campaign, via misinformation and disinformation, to cast doubt on climate change science.
Two weeks ago, Smith subpoenaed Eric Schneiderman and Maura Healey, the attorneys general of New York and Massachusetts, respectively, for documents of their contacts with 25 climate activists, scientists and legal experts — among them former Vice President Al Gore and California billionaire Tom Steyer. The subpoenas were returnable on Thursday, but on that day Smith’s inbox was bare, except for messages from the attorneys general advising him, essentially, to stuff it.
The Subpoena oversteps the boundaries imposed by federalism, separation of powers, Committee jurisdiction, and pertinency requirements.
NEW YORK ATTY. GEN. ERIC SCHNEIDERMAN SENDS REP. LAMAR SMITH PACKING
Smith didn’t need Schneiderman or Healey to tell him that his quest to defend Exxon Mobil from legitimate government investigations was more than quixotic, but idiotic: His committee received testimony to that effect back in September from the Congressional Research Service and from Charles Tiefer, a former legal advisor to the House and Senate. Tiefer told the committee that the House had never issued a subpoena “in two hundred years to a State Attorney General.” With good reason: The action signaled a potential breach of state sovereignty as enshrined in the Bill of Rights.[so much for states rights]
Here’s some background on Smith, whose credentials as a climate change denier are unassailable. He has dismissed a 2104 report by the United Nations’ Intergovernmental Panel on Climate Change, which stated that “human interference with the climate system is occurring” and causes negative “impacts on natural and human systems on all continents and across the oceans” as “nothing new” and “more political than scientific.”
Responding to a White House report in May 2014 about the urgency of taking steps to address climate change, Smith said it was designed merely “to frighten Americans into believing that any abnormal weather we experience is the direct result of human CO2 emissions.” He added: “In reality, there is little science to support any connection between climate change and more frequent or extreme storms.”
In 2015, Smith presided over a move to slash NASA’s Earth science budget, a move disguised as a gift for space exploration. I described Smith’s announcement of the vote as “a model of misdirection and deceit.” It mentioned “space” and “space exploration” a couple of dozen times. Earth science got one mention, and that one was an undisguised political slam: “The Obama administration has consistently cut funding for ... human space exploration programs, while increasing funding for the Earth Science Division by more than 63 percent.”
Smith’s motivation for dismissing established climate change science and protecting fossil fuel companies such as Exxon Mobil isn’t hard to discern. If one adheres to the precept to “follow the money,” one discovers that pantsfuls of it flow from the oil and gas industry into Smith’s campaign accounts. Oil and gas contributors have directed nearly $700,000 in Smith’s direction since he entered in Congress in 1987; in the two congressional election cycles since 2013, when he became chairman of the science committee, oil and gas has been his top industrial source of campaign funding.
Smith’s efforts to protect Exxon Mobil from state investigators began in May, when he issued identical letters to 17 state attorneys general, including Schneiderman, Healey and California’s Kamala D. Harris (now a U.S. senator). The letter, signed by Smith and nine Republican colleagues on the committee, denounced the states’ cooperative “unprecedented effort against those who have questioned the causes, magnitude or best ways to address climate change.”
The letter said their “efforts to silence speech are based on political theater rather than legal or scientific arguments” on how to combat climate change. Smith demanded that they turn over within 12 days documents dating back to 2012 having to do with their contacts related to climate change with such organizations as the Union of Concerned Scientists and the Rockefeller Family Fund, as well as with the U.S. Department of Justice, the Environmental Protection Agency and the Obama White House. The attorneys general told him then to stuff it, too.
New York and Massachusetts are the only states to actually issue subpoenas thus far to Exxon Mobil, which may be what inspired Smith’s February subpoena. Schneiderman, in refusing to comply, delivered the back of his hand to Smith’s assertion that he had narrowed the scope of his demand to make things easier for the states. In fact, Schneiderman observed, the new subpoena is broader than the original demand — it targets not merely New York’s investigation of Exxon Mobil, but all communications with other attorneys general and the 25 named individuals. “The Subpoena oversteps the boundaries imposed by federalism, separation of powers, Committee jurisdiction, and pertinency requirements,” he wrote. Worse, Smith appears to be trying to do Exxon a big favor by demanding documents that the company itself has sought to obtain from Schneiderman in court, “so far to no avail.”
How long does Lamar Smith intend to embarrass himself, his committee and Congress in this ridiculous quest to shut down investigations that could harm his patrons in the petroleum industry? That’s hard to know, but what’s clear is that the interest he’s protecting in this quest isn’t the public interest, but Exxon Mobil’s.
==
http://www.ecowatch.com/nafta-renegotiations-2344471752.html
8 Critical Changes to NAFTA to Prioritize People and Planet
By Amanda Maxwell and Anthony Swift
President Trump has made renegotiating the North American Free Trade Agreement (NAFTA) one of the main goals for his administration and has recently revealed the general plan to do so.
As this process moves forward, the Natural Resources Defense Council (NRDC), Sierra Club and our partners across a broad range of sectors are calling on the administration to include eight critical issues among their priorities in changing NAFTA, outlined below. We want to ensure that any new provisions in NAFTA result in a transparent agreement that supports—and does not undermine—a more stable climate, clean air and water, healthy communities, indigenous peoples and good jobs.
In the 23 years since NAFTA's signing, the economies of Mexico, Canada and the U.S. have become intertwined and interdependent, with $1.1 trillion in trade moving among the three countries in 2016. During those decades, too, new issues such as climate change, clean energy and sustainability, have moved to the forefront of international relations. So, while it remains unclear exactly how and to what extent the Trump administration will change this accord, there are several critical provisions that should be included to improve the lives of people living and working in all three countries and the environments they depend on.
NRDC is pleased to ally with 350.org, Center for Biological Diversity, Center for Food Safety, Defenders of Wildlife, Earthjustice, Friends of the Earth, Global Exchange, Green America, Greenpeace USA, Institute for Agriculture and Trade Policy, League of Conservation Voters, Food & Water Watch, Sierra Club and U.S. Human Rights Network in calling on the Trump administration to include the following eight issues among their priorities in changing NAFTA:
1. Eliminate rules that empower corporations to attack environmental and public health protections in unaccountable tribunals. NAFTA's investor-state dispute settlement system allows multinational corporations—e.g. ExxonMobil and TransCanada—to bypass our courts, go to private tribunals and demand money from taxpayers for policies that affect corporate bottom lines. Corporations have used NAFTA to challenge bans on toxic chemicals, decisions of environmental review panels and protections for our climate. They have extracted more than $370 million from governments in these cases and pending NAFTA claims total more than $50 billion. What's more, the cases are heard not by judges, but by corporate lawyers outside the normal court system.
2. Incorporate strong, enforceable environmental and labor standards into the core text of the agreement. To address environmental and labor issues, NAFTA created side agreements which are non-binding and have limitations. As a result, they have been relatively ineffective. To ensure that the new terms of a revised trilateral trade agreement create and uphold a fair playing field for environmental and labor conditions, these two areas must be included inside the core text of the agreement. That means that a country that fails to live up to its environmental obligations will be subject to trade sanctions similar to the existing provisions for violation of commercial parts of the agreement. This will also require that countries live up to existing international agreements and address environmental challenges such as critical conservation challenges related to illegal timber trade, illegal wildlife trade and fisheries management....
==
gorsuch hobby lobby
https://movetoamend.org/gorsuch%E2%80%99s-gory-expansion-corporate-personhood
==
Cosponsors: H.J.Res.48 — 115th Congress (2017-2018)All Bill Information (Except Text)
Sponsor: Rep. Nolan, Richard M. [D-MN-8] | Cosponsor statistics: 32 current - includes 20 original
https://www.congress.gov/bill/115th-congress/house-joint-resolution/48/cosponsors?q=%7B%22search%22%3A%5B%22HJR+48%22%5D%7D&r=1
==
cf bogus animal personhood arg
http://www.ecowatch.com/ganges-yamuna-india-human-rights-2323154602.html
==
http://www.ecowatch.com/trump-business-leaders-2318342090.html
Trump Unleashes Cultural Shift Among America's Business Leaders
Carl Pope Mar. 18, 2017
One of the biggest impacts of President Trump's election is not the direct damage he may do—but the cultural shift he has unleashed among American business leaders. Assaults on decency and health that would have been unthinkable a few months ago are now the expected response by corporate executives pressured by short-term market pressures and right-wing political allies.
Let's be clear. American business is at risk of plunging into a race to the bottom—not only must Americans resist Trump directly, they must resist the culture of law-breaking and recklessness he is trying to trigger.
One of the most spectacular examples is only a few hundred miles from the White House, in Charleston, West Virginia. The state led the nation in mining deaths in 2016 and has already seen two deaths in 2017; but in spite of this grim history the coal industry has proposed the complete elimination of state health and safety regulations and inspections in the West Virginia coal mines. This in a state where, only a few months ago, a federal appellate court upheld a prison sentence for Massey Energy CEO Don Blankenship for his role in a mining catastrophe that killed 29 miners in Massey's Upper Big Branch Mine, the direct result of poor enforcement of safety standards.
The West Virginia Gazette summed up the bill: "The heart of the legislation is a section that simply eliminates the ability of state mine safety office inspectors to issue notices of violation or levy fines for mine operators or coal companies for any safety hazards unless they can prove there is an 'imminent danger' of death or serious physical harm." If the coal industry has its way the much overblown Obama "War on Coal" will be replaced by a stealthy, Trump inspired "War on Coal Miners."
The coal industry has long enjoyed a reputation for callousness. But the new mood exemplified by President Trump has spread to companies that invest a lot of resources in portraying themselves as responsible, sustainable corporate citizens. Take Monsanto.
The company has been engaged in a high stakes effort to maintain its ability to market its Roundup brand of herbicide in spite of mounting evidence that it's safety is uncertain at best. When Roundup's active ingredient was listed as a probably human carcinogen under California's Proposition 65 (disclosure: I co-authored it 30 years ago), Monsanto sued, claiming that it was a violation of the constitution to require the company to inform users and others exposed of the view of international science bodies of its risks.
A California court shot the lawsuit down, commenting that there was no plausible basis for the company's claim that making the company inform the public it was selling them a potentially dangerous chemical was unconstitutional. Then, when Monsanto argued that the documents on the basis of which the judge had ruled against it be kept secret, the judge threatened the company with sanctions and required the documents to be released.
img]
It became clear why Monsanto wanted the documents sealed. The revealed a sordid history of the company's efforts to keep Roundup's real risks a secret, including apparent collusion with regulatory staff inside the U.S. Environmental Protection Agency to head off further research into its dangers.
Monsanto's response? Embarrassment? Hardly. The company proclaimed that it would continue to appeal the case. It insists that Roundups users and other exposed were not entitled to know that international agencies had found that the herbicide was a probable human carcinogen.
---
ref
https://www.ecowatch.com/monsanto-california-ruling-roundup-2310904321.html
California is the first U.S. state to require Monsanto to label its blockbuster weed killer, Roundup, as a possible carcinogen, according to a ruling issued Friday by a California judge.
Fresno County Superior Court Judge Kristi Kapetan previously issued a tentative ruling on Jan. 27 in Monsanto Company v. Office of Environmental Health Hazard Assessment, et al.
Judge Kapetan formalized her ruling Friday against Monsanto, which will allow California to proceed with the process of listing glyphosate, the active ingredient in Roundup, as a chemical "known to the state to cause cancer" in accordance with the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65...
In January of 2016, Monsanto filed a lawsuit against the State of California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) over the agency's notice of intent to list glyphosate as a Prop 65 chemical.
OEHHA issued the notice after the World Health Organization's International Agency for Research on Cancer (IARC) issued a report on glyphosate, which classified the chemical as a "probable human carcinogen." The IARC report compelled OEHHA to list glyphosate as a Prop 65 chemical and warn consumers about the possible danger associated with glyphosate exposure.[vid?]
Why Did Monsanto Sue the State of California?
In 1986, California voters approved Proposition 65 to address concerns about exposure to toxic chemicals. Prop 65 requires California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm.
OEHHA is the administrator for the Proposition 65 program and determines in many cases whether chemicals or other substances meet the scientific and legal requirements to be placed on the Proposition 65 list. The agency uses a "Labor Code" listing mechanism, which directs the OEHHA to add chemicals or substances to the Prop 65 list of chemicals known to the state to cause cancer if they meet certain classifications by the IARC.
Monsanto's lawsuit against OEHHA argued that the statutory basis underlying the agency's action to list glyphosate as a Prop 65 chemical violates both the California and U.S. Constitutions. According to the complaint, listing glyphosate as chemical known to the state to cause cancer cedes regulatory authority to an "unelected, undemocratic, unaccountable, and foreign body" that isn't subject to oversight by California or the United States.
Though, according Judge Kapetan ruling:
"… the Labor Code listing mechanism does not constitute an unconstitutional delegation of authority to an outside agency, since the voters and the legislature have established the basic legislative scheme and made the fundamental policy decision with regard to listing possible carcinogens under Proposition 65, and then allowed the IARC to make the highly technical fact-finding decisions with regard to which specific chemicals would be added to the list.
"As Monsanto admits, the IARC's list is not created in response to the Labor Code listing mechanism or Proposition 65, and in fact IARC has stated that it disavows any policy or rulemaking role, and that it does not intend its determinations to carry the force of law."
In the months that followed, a number of interested nonparties joined the lawsuit as "intervenors," either on behalf of Monsanto or on behalf of the State of California. When a case has the potential to affect the rights of interested nonparties (individuals or organizations not named in the lawsuit), they can become intervenors, effectively joining the litigation either as a matter of right or at the court's discretion without the permission of the original litigants. Intervention simply gives nonparties that could be affected by a case's outcome a chance to be heard.
Below are the intervenors in Monsanto Company v. Office of Environmental Health Hazard Assessment, et al.
Monsanto Intervenors:
- California Citrus Mutual
- Western Agricultural Processors Association (WAPA)
- California Cotton Ginners and Growers Associations
- California Grain & Feed Association
- Almond Alliance of California
- Western Plant Health Association
OEHHA Intervenors:
- Center for Food Safety
- Sierra Club
- United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union(AFL-CIO, CLC)
- Natural Resources Defense Council
- Environmental Law Foundation
- Canadian Labor Congress
Teri McCall is one of many California residents to cheer the ruling against Monsanto. Her husband, Jack, sprayed Roundup on the family's Cambia, California farm for nearly 30 years. In September 2015, Jack went to see a doctor to treat swollen lymph nodes in his neck. That day in the hospital, he learned that the swelling was caused by anaplastic large cell lymphoma (ALCL), a rare and aggressive version of non-Hodgkin lymphoma.
3 months later, Jack suffered a severe stroke due to complications with his cancer treatment. He died on Dec. 26, 2015.
In the wake of her husband's death, Teri McCall filed a wrongful death lawsuit against Monsanto, alleging the company knew about the link between Roundup and cancer, but failed to warn the public about the risk.
"My husband Jack was very conscious of the dangers of chemicals and his misfortune was taking Monsanto's word that Roundup was safe," McCall said at a press conference held in January in Fresno, California, following Judge Kapetan's tentative ruling....
==
ref2?
http://www.ecowatch.com/glyphosate-cancer-kennedy-2199066232.html
Next week, Monsanto and California's Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) will face off over the agency's plan to list the herbicide glyphosate as a carcinogen. The outcome of this legal battle could have major ramifications to California's long-established regulatory program.
It all started back in Sept. 2015 when the OEHHA issued a notice of intent to list the chemical as known to the state to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. The OEHHA determined that glyphosate met the criteria under the "Labor Code" listing mechanism, whichdirects the office to add a chemical or substance to the Prop 65 list of known carcinogens if it meets certain classifications by the World Health Organization's International Agency for Research on Cancer (IARC).The France-based IARC concluded that glyphosate is "probably carcinogenic to humans (Group 2A)" in March 2015.
img
Monsanto then filed a lawsuit against the OEHHA in January 2016 to prevent the listing, arguing that the Labor Code listing mechanism isunconstitutional because the office delegated law-making authority "to an unelected and non-transparent foreign body that is not under the oversight or control of any federal or state government entity."
Glyphosate happens to be the main ingredient in Monsanto's Roundup, the world's most popular herbicide. The chemical is applied onto "Roundup Ready" crops that are genetically modified to resist applications of the spray. The agribusiness giant has long maintained the safety of their flagship product and has vehemently denied glyphosate's link to cancer and has also demanded a retraction of the IARC's report. The company's lawsuit also cited the OEHHA's own 2007 study concluding that the chemical was unlikely to cause cancer.
In response, the OEHHA filed a motion to dismiss Monsanto's lawsuit. The office asserted in its motion that the listing mechanism "simply provides a way for OEHHA to make the most of scarce resources." According to the motion, IARC's scientific determinations are "the gold standard in carcinogen identification," and are trusted and relied upon by state governments, the federal government and foreign governments alike.
At the upcoming Jan. 27 hearing in Fresno Superior Court, both sides will make their arguments before a judge decides whether to dismiss the case or allow it to proceed.
"Monsanto's lawsuit is significant for a number of reasons," Kevin Haroff and Marina Cassio of Marten Law wrote in a blog post. "It raises fundamental issues over how scientific health assessments can appropriately be used as the basis for governmental actions, with broad-reaching implications for both consumers and the overall economy. As a practical matter, it also challenges a key element of a unique California regulatory program that has now been in place for three full decades."
The OEHHA's Labor Code listing mechanism using IARC's classification scheme has been tested in court before. In 2013's Styrene Information & Research Center v. Office of Environmental Health Hazard Assessment (SIRC v. OEHHA), the trial court and appeals court determined that the OEHHA could not just rely on the IARC's classification scheme to list a chemical as a known carcinogen in the state. Rather, the court decided that a listing must always be supported by a finding that the chemical in fact is known to the state to cause cancer. In the end, the OEHHA was required to reevaluate four listed substances and six substances under consideration for listing.
"Put another way, an IARC Group 1 or 2A classification decision could create a presumption that a chemical must be listed as a known carcinogen under Proposition 65; however, court decisions construing the application of the Labor Code listing mechanism and similar provisions suggest that at least in some circumstances the presumption should be a rebuttable one," Haroff and Cassio point out.
"This may be important to how the courts will respond to Monsanto's legal challenge to OEHHA's proposed glyphosate listing," the authors continue. "Monsanto's argument that Proposition 65 improperly delegates lawmaking power to IARC assumes that OEHHA plays no independent role in identifying chemicals known to the state to cause cancer using the Labor Code listing mechanism. OEHHA could counter that that it does play an independent role, since under SIRC v. OEHHA, it has an independent obligation to find that there is evidence sufficient to establish that a chemical is 'known to the state of California' to cause cancer."
On the same day of the hearing, environmental lawyer Robert F. Kennedy, Jr. and the law firm of Baum, Hedlund, Aristei & Goldmanwill hold a press conference in Fresno in support of the OEHHA. The press conference will take place outside the courthouse at Noon PST and EcoWatch will stream the event live on Facebook.
Kennedy and Michael L. Baum, senior partner at Baum Hedlund, will speak in support of the state of California's motion to dismiss the lawsuit. Arturo S. Rodriguez, president of the United Farm Workers of America, will speak in support of protecting farm workers from harmful herbicides and pesticides.
Several of Baum Hedlund's and Kennedy's California Roundup cancer clients will also be speaking at the press conference.
img]
Since Monsanto's lawsuit was filed, a number of organizations have intervened on both sides. The organizations that support California's OEHHA include the AFL-CIO, Center for Food Safety, Sierra Club, Canadian Labor Congress, Natural Resources Defense Council and the Environmental Law Foundation.
The organizations supporting Monsanto include California Citrus Mutual, California Cotton Ginners & Growers Association, California Grain and Feed Association, Almond Alliance of California, Western Plant Health Association and Western Agricultural Processors Associations.
The OEHHA has received more than 9,300 written comments in response to the listing. The comments are mostly from individuals and groups supporting the proposed listing. Monsanto, chemical producers and industry groups have also submitted comments opposing the listing. The public comment period is now closed, and OEHHA has yet to take final agency action on the listing.
==
===
ref 1
Corporate Speech and the First Amendment: History, Data, and Implications
Constitutional Commentary, Forthcoming
41 Pages Posted: 9 Mar 2015 Last revised: 14 May 2015
:{
John C. Coates, IV
Harvard Law School
Date Written: February 27, 2015
Abstract
This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking.
The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson.
Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.
Keywords: First Amendment, corporations, Court of Appeals, Virginia Pharmacy, Bellotti, Central Hudson
JEL Classification: D72, K10, K22, K23, K42, L51
Suggested Citation:
Coates, IV, John C., Corporate Speech and the First Amendment: History, Data, and Implications (February 27, 2015). Constitutional Commentary, Forthcoming . Available at SSRN: https://ssrn.com/abstract=2566785 or http://dx.doi.org/10.2139/ssrn.2566785
}:
==
===
Corporations like Exxon are using spurious free speech claims to fend off regulation
Updated by Jeff Clements and John Coates Feb 14, 2017
http://www.vox.com/the-big-idea/2017/2/14/14601932/exxon-first-amendment-free-speech-citizens-global-warming
Why is the attorney general of Massachusetts, Maura Healey, being forced to justify to a Texas judge why and how she is doing her job?
In the latest instance of the corporate takeover of the First Amendment — and other constitutional rights — Exxon Mobil, the world’s largest oil and gas corporation, has invented a constitutional right to obstruct state investigations into allegations of fraud.
Investigations by the Massachusetts and New York attorneys general began late last year after the Los Angeles Times reported that Exxon scientists and executives have known for decades about the connection between fossil fuel consumption and the likelihood of catastrophic changes in the Earth’s atmosphere and climate.
The report alleged that as early as the 1980s, Exxon scientists were warning the company in internal communications that global climate change could "indeed be catastrophic (at least for a substantial fraction of the earth's population)." According to the journalists’ report, Exxon’s internal teams used that information for purposes of assessing the potential for profitable investment in new oil exploration and production. Yet these were the same climate models that Exxon “dismissed as unreliable and based on uncertain science” in statements to investors, consumers, and the general public.
A parallel with investigations of Big Tobacco
The attorneys general embarked on investigations on behalf of their citizens, asking whether Exxon was guilty of selling products and equity while concealing information about their risks.
The similarity of these allegations to the illegal conspiracy of the tobacco industry — a cover-up of internal corporate knowledge about deadly consequences of continued consumption of its products — did not escape notice. In January 2016, the Department of Justice asked the FBI to investigate whether Exxon should be prosecuted under the federal Racketeer Influenced and Corrupt Organizations Act, as the tobacco industry was. The investigations by the Massachusetts and New York attorneys general, focusing on whether Exxon had been forthright in its disclosures to investors, soon followed.
Given identified sources and specific studies cited in news reports, it is not surprising that chief law enforcement officers of federal and state governments would investigate. Indeed, it would be extremely troubling if they did not.
But rather than show that the allegations of investor and consumer fraud are baseless, Exxon Mobil is misusing the Constitution to continue to conceal what it knew about the connection between catastrophic climate change and continued fossil fuel use, and when.
It is not uncommon, of course, for companies to resist subpoenas from attorneys general on a variety of legal grounds. For example, Exxon could have filed a motion in Massachusetts asking a judge to set aside the subpoena on the grounds that it was overly broad, and arguing that the investigation exceeded the jurisdiction of the attorney general. (In fact, Exxon did just that, and lost.)
Until fairly recently, no US court would have entertained free speech claims by a corporation that wanted to strike down regulation
But Exxon has gone much further. It has filed a federal “civil rights” lawsuit in its home court of Texas against the New York and Massachusetts attorneys general. The multibillion-dollar global corporation claims that the state investigations violate a previously unrecognized corporate right under the Constitution both to “speak” and to “not speak” about climate change any way it wants, however deceptive that speech may be.
This is where the Supreme Court’s decision in Citizens United v. Federal Election Commission is taking the country. That 2010 ruling is infamous for opening the floodgates of big, dark money in our elections by deciding that any limits on supposedly “independent” political ads violate the speech rights of corporations, unions, and billionaires. What is less well-known about Citizens Unitedis how radically it empowers corporations to misuse the First Amendment in other ways — ways we now see playing out in the Exxon case, and elsewhere.
Citizens United was the capstone on a remarkable series of cases, dating only to the 1970s, that revolutionized the application of the First Amendment in the corporate context. Very few people realize just how quickly this constitutional revolution has occurred; very few people realize that American corporations thrived for the first two centuries of American history with virtually no First Amendment protections.
In the early 20th century, First Amendment cases involving firms tended to involve media companies, as when Louisiana Gov. Huey Long imposed special taxes on newspapers (a clear attempt to punish them). It was generally assumed that the “speech” of business corporations was no more free from court scrutiny than the language of their contracts or their SEC filings.
:{
That finding was then broadened and expanded in National Bank of Boston v. Bellotti(1978), which held that corporations can contribute to ballot initiatives, and again in Central Hudson Gas & Electric Corp. v. Public Service Commission(1980), which asserted that a utility could run advertisements promoting the use of electricity. Those two cases continue to be cited in almost all commercial speech cases — and they are cited more and more frequently. Citizens United affirmed those cases and extended them to campaign finance laws.After his appointment to the high court in 1971, however, Justice Lewis F. Powell Jr., a former business lawyer who ardently believed that corporate America was being undermined by the public’s support for reformers like Ralph Nader, helped reinvent the Court’s doctrine in this area. In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), the Court said, on First Amendment grounds, that the state could not forbid pharmacists from advertising prescription drug price — a remarkable departure from precedent.
}:
Despite the “free speech” rhetoric, corporations are not simply seeking to offer opinions about public policy issues. They do that all the time, routinely spending millions to fund ads, research, policy papers, and lobbying activities. Today corporations are claiming that their “rights” to speak clash with longstanding forms of regulation of business activity. Whenever they are required to disclose information to consumers, regulators, the public, or enforcement officials, they argue, their First Amendment rights are implicated. Whenever they seek or transmit information, they say, they are “speaking,” and the First Amendment gives them the right to do that without fear of consequences.
A growing number of constitutional challenges to reasonable regulations
In recent years, large corporations have been emboldened to argue that corporate speech rights entitle them to strike down state health care prescription information laws — those forbidding pharmaceutical companies from selling information about the prescribing patterns of individual doctors, for example.
https://en.wikipedia.org/wiki/Sorrell_v._IMS_Health_Inc.
They have argued that speech rights forbid certain securities regulations — specifically, those requiring investigation and disclosure of whether a company sells “conflict minerals” from the Democratic Republic of Congo.
http://www.fedregsadvisor.com/2014/04/14/d-c-circuit-vacates-dodd-frank-conflict-minerals-provision-sec-rule-as-violating-first-amendment-free-speech/
They have said that the First Amendment gives them a right to decline to say on product labels that the meat they sell comes from foreign countries, or that food products contain genetically modified ingredients.
http://www.ibtimes.com/food-labeling-laws-could-be-undermined-first-amendment-court-challenge-1587213
In a related egregious constitutional expansion, corporations have even attacked minimum wage laws as violating their rights under the 14th Amendment’s equal protection clause — when, as is typical, such laws treat firms differently based on size (or form of organization). The corporate misuse of the First Amendment and the Constitution more broadly, has gone viral. It now might be considered corporate legal malpractice not to take a swing at challenging, on constitutional grounds, any law that gets in the way of the largest corporate profits.
http://blogs.reuters.com/great-debate/2014/10/06/the-fight-for-living-wages-is-for-workers-not-corporations/
Investigations by public agents, including attorneys general, are a necessary component of law enforcement. Efforts by public agents to ascertain facts in such investigations should not create constitutional controversy, provided the agents respect due process and other constraints on how they perform these duties. If corporations can invoke “free speech” as a way to conceal relevant information about allegedly false statements — if they can effectively create immunity from investigation by playing a constitutional trump card — then we are on a slippery slope to the civic incapacity and relative weakness in both rule of law and economic growth that characterizes Russia and other regimes that collapse the distinction between economic and political power.
That’s why Exxon’s attack on the state investigations says so much about the damage to our constitutional framework wrought by the Supreme Court’s invention of these new corporate rights. In our federal system, attorneys general are the highest law enforcement officers in the state, generally elected directly by people, and charged with protecting the public interest and checking the abuse of corporate power. Yet in the post–Citizens United world, Exxon — with a virtually unlimited budget — can summon any officials with the temerity to do their job into physically distant courts. Trumped-up “civil rights” litigation of this kind has self-evident potential for the harassment and intimidation of would-be investigators.
Even the majority of justices in Citizens United did not argue that corporate speech rights protected fraudulent statements. Yet unless the Court revisits its First Amendment doctrines, Exxon’s attack on efforts by the states to investigate its conduct shows that such nuances may not matter. Whether Exxon wins or loses its “free speech” claims, it has already delivered its real message: Those who stand up for the public interest will face a high cost.
Jeff Clements is the president of :{American Promise}:, a national nonpartisan group of American citizen leaders working for the 28th Amendment to secure government of the people, not money. He previously was a partner in a Boston law firm and served as chief of the Public Protection Bureau in the Massachusetts Attorney General’s Office.
John Coates is the John F. Cogan Jr. professor of law and economics, as well as research director of the Center on the Legal Profession, at Harvard Law School. Before joining Harvard, he was a partner at Wachtell, Lipton, Rosen & Katz specializing in financial institutions and mergers and acquisitions.
===
ref reurters
‘Living wage’ law is unconstitutional – if you ask lobbyists
By Ron Fein October 6, 2014
Demonstrators rally to raise the hourly minimum wage to $15 for fast-food workers at City Hall in Seattle
Industry trade groups are now challenging Seattle’s new minimum wage law as unconstitutional. They claim the city’s $15 an hour rate violates the 14th Amendment. Passed just after the Civil War to ensure equal rights for the newly freed slaves, that amendment says no state may “deny to any person . . . the equal protection of the laws.”
:{
}:
According to the industry lawsuit, the minimum wage law violates this Equal Protection Clause because it phases in the higher wage at a different schedule for franchised companies than for small local businesses.
:{
}:
But the trade groups’ argument twists the real intent of the 14th Amendment. Its drafters had a special interest in whether workers could earn “fair, living wages,” our research has revealed. That phrase was often used by Senator Jacob Howard, a staunch Republican who served as the 14th Amendment’s Senate floor manager in 1866.
:{
}:
During congressional hearings, Howard repeatedly asked witnesses whether employers were paying the newly freed slaves “fair, living wages.”
:{
}:
Howard had reason to emphasize this point. Even before the Civil War ended, the Union Army was deeply concerned about whether freedmen were receiving fair wages. An 1865 Army work plan, for example, instructed officers to assist freedmen in obtaining “fair wages for their labor.”
Sometimes it was a struggle to achieve this. When employers in two recalcitrant South Carolina counties persisted in underpaying the freedmen, one Army general contemplated moving those counties’ entire freed population to areas that would pay them “fair wages.” By 1866, a special military unit established to assist freedmen during the post-Civil War Reconstruction had resorted to distributing standard labor contracts, with fixed labor rates, that would promote “prosperous relations between capital and labor” and be “satisfactory to the freedmen.”
Many Americans viewed “fair, living wages” as an integral part of the struggle from slavery to full citizenship. The influential abolitionist editor Horace Greeley — famous for his 1865 editorial that advised “Go West, young man” — wrote a widely reprinted open letter to “the Colored People of North Carolina” on September 14, 1865. He urged them to take immediate steps to demand “fair, living wages” as part of their larger struggle for equal rights.
So when members of the special congressional committee asked whether freedmen could earn fair or living wages, they understood the issue as intimately connected with the equality that the 14th Amendment ultimately enshrined.
That wasn’t the only concern behind the 14th Amendment, of course. But, unlike protection of the economic advantages that franchised businesses have over small local businesses, it was part of the 14th Amendment’s overall goals.
Given how important obtaining “fair, living wages” was to the 14th Amendment’s authors, industry lawyers have no basis to argue that the Equal Protection Clause protects the companies, rather than the workers. But it’s not surprising. Ever since the 14th Amendment was passed, corporate lawyers have tried to leverage it to strike down laws like Seattle’s.
:{
}:
In 1938, a frustrated Supreme Court justice complained that of the cases in the court in which the 14th Amendment was applied during the first 50 years after its adoption, “less than one-half of 1 percent invoked it in protection of the negro race, and more than 50 percent asked that its benefits be extended to corporations.”
Just this year, the Equal Protection Clause has been invoked on behalf of coal companies and multinational agribusiness conglomerates.
We need to put a stop to this unfounded constitutional argument. The businesses had their opportunity to make their case to the city of Seattle — and they lost. They shouldn’t be allowed to run to court under the banner of the 14th Amendment.
When Abraham Lincoln was just a rookie congressman, he wrote that securing “to each laborer the whole product of his labor, or as nearly as possible, is a most worthy object of any good government.” That’s what Seattle’s law does. Sixteen years after Lincoln wrote that, he vowed at Gettysburg to preserve a “government of the people, by the people, [and] for the people.” That’s what the industry’s lawsuit threatens.
The congressmen of Reconstruction sought to carry forward Lincoln’s legacy with the 14th Amendment. Their vision of full equality is not yet realized. But if they could see what Seattle is trying to achieve, they would be proud.
http://blogs.reuters.com/great-debate/2014/10/06/the-fight-for-living-wages-is-for-workers-not-corporations/
===
Does Exxon Have a Constitutional Right to Deny Climate Change ...
www.motherjones.com/environment/2016/06/exxon-ken-paxton-first-amendment
1.
Corporations like Exxon are using spurious free speech claims to fend ...
www.vox.com/the.../exxon-first-amendment-free-speech-citizens-global-warming
1.
Exxon-Mobil is abusing the first amendment - The Washington Post
https://www.washingtonpost.com/.../exxonmobils.../2df8b29c-38c4-11e6-9ccd-d6005be...
Jun 24, 2016 - The oil giant is brazenly invoking the First Amendment to block a subpoena by state attorneys ... If ExxonMobil has committed fraud, its speech would not merit First Amendment protection. ... Lando unequivocally held that the Constitution does not preclude ordinary discovery of .... Play right from this page ...
Exxon Mimics Big Tobacco's First Amendment Plea
www.climateinvestigations.org/exxon_mimics_big_tobacco_s_first_amendment_plea
1.
Exxon Fights Subpoena in Widening Climate Probe, Citing Violation of ...
https://insideclimatenews.org/.../exxon-virgin-islands-subpoena-climate-change-invest...
1.
Exxon and Its Allies Invoke First Amendment to Fight Climate Fraud ...
https://insideclimatenews.org/.../exxon-competitive-enterprise-institute-cei-climate-cha...
1.
3 Reasons We Oppose a Congressional Move to Protect Exxon ...
www.ecowatch.com/we-oppose-a-congressional-move-to-protect-exxon-1946424984...
1.
Exxon Corporation v. Eagerton | Oyez
https://www.oyez.org/cases/1982/81-1020
2.
Exxon Tries To Bury Climate Documents By Claiming First ...
www.huffingtonpost.com/.../exxon-first-amendment_us_571662c6e4b0060ccda46d6...
1.
First Amendment Freedoms Must Be Protected | The Daily Caller
dailycaller.com/.../texas-is-fighting-back-against-the-activist-ags-dangerous-climate-su...
1.
http://www.ontheissues.org/2016/Bernie_Sanders_Corporations.htm
BERNIE:
Corporations do not have First Amendment rights
In my view, a corporation is not a person. In my view, a corporation does not have first amendment rights to spend as much money as it wants, without disclosure, on a political campaign. In my view, corporations should not be able to go into their treasuries and spend millions and millions of dollars on a campaign in order to buy elections.
I do not believe that is what American democracy is supposed to be about.
In my view, history will record that the Supreme Court's Citizens United decision is one of the worst decisions ever made by a Supreme Court in the history of our country. While the campaign finance system we had before Citizens United was, in my view, a disaster, as a result of Citizens United, that bad situation has become much worse
Source: The Essential Bernie Sanders, by Jonathan Tasini, p. 73 , Dec 8, 2011...
Corporate political spending is not free speech.
Sanders sponsored Constitutional Amendment to overturn Citizens United
Constitutional Amendment
- Whereas the right to vote in public elections belongs only to natural persons, so shall the ability to make contributions and expenditures to influence the outcome of public elections belong only to natural persons.
- Nothing in this Constitution shall be construed to restrict the power of Congress and the States to protect the integrity and fairness of the electoral process, limit the corrupting influence of private wealth in public elections, and guarantee the dependence of elected officials on the people alone by taking actions which may include the establishment of systems of public financing for elections, or the imposition of requirements to ensure the disclosure of [election] contributions and expenditures.
- Nothing in this Article shall be construed to alter the freedom of the press.
Opponents recommend voting NO because:[Supreme Court majority opinion in Citizens United v. Federal Election Commission, for which the Constitutional Amendment is proposed as a remedy. The FEC had ruled that the movie "Hillary", released in 2008 to persuade voters against Hillary Clinton, was illegal because it was a disguised campaign contribution made by a corporation. The Supreme Court overruled the FEC]:
Modern day movies might portray public officials in unflattering ways. Yet if a covered transmission [is broadcast] during the blackout period, a felony occurs solely because a corporation, [instead of a candidate or donors, paid] in order to engage in political speech. Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but it seems stranger than fiction for our Government to make this political speech a crime. Some members of the public might consider Hillary to be insightful and instructive; some might find it to be [unfair]; those assessments, however, are not for the Government to make.
Source: H.J.RES.34 / S.J.RES.11 14_SJR11 on Mar 13, 2013
--
2012
http://www.truth-out.org/news/item/6095:the-problem-with-citizens-united-is-not-corporate-personhood
2x?
The Problem With Citizens United Is Not Corporate Personhood
Tuesday, 17 January 2012
By James Marc Leas and Rob Hager, Truthout | News Analysis
Vermont Sen. Bernie Sanders and Florida Rep. Ted Deutch introduced a constitutional amendmentin December to overturn*Citizens United*, one of five decisions since 2006 by which a closely divided Supreme Court vastly increased the amount of corrupting corporate money in elections.
In an opinion piece critical of the decision in Citizens United, Senator Sanders wrote:
When the Supreme Court says that for purposes of the First Amendment, corporations are people, that writing checks from the company's bank account is constitutionally-protected speech and that attempts by the federal government and states to impose reasonable restrictions on campaign ads are unconstitutional, when that occurs, our democracy is in grave danger.
The joint Sanders-Deutch Resolution proposes an amendment to the constitution "to expressly exclude for-profit corporations from the rights given to natural persons." The first section of the amendment states:
The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or other private entities established for business purposes or to promote business interests under the laws of any state, the United States, or any foreign state.
While Senator Sanders and Representative Deutch correctly characterize the danger to democracy and the need for strong action in response, a close reading of Citizens United shows that constitutional rights of corporations played no role whatsoever in the Citizens United decision.
The incorrect - but widely held - reading of Citizens United is that the corruption of elections arose fundamentally because the Supreme Court adopted a legal doctrine of corporate "personhood" which endowed corporations with First Amendment free speech rights, which, combined with the notion that spending money to promote a candidate is a form of speech, gives corporations the right to spend unlimited amounts of their money in elections.
This incorrect reading of Citizens United is compounded by the further error that a constitutional amendment is necessary and sufficient to remove those corporate constitutional rights and to remove corporate money from elections, or could prevent the pro-corporate majority on the Supreme Court from making further decisions corrupting elections.
Fortunately, the inordinate influence of private money in elections can be fixed, and the fix is far easier to accomplish - and more certain of success if accomplished - than any kind of constitutional amendment, as described in "Constitutional Amendment Not Needed: Congress Already Has a Remedy."
As to corporate rights, what is true is that the legal fiction of corporate personhood was created to apply the 14th Amendment for protecting corporations from certain state regulations and taxes during the first Gilded Age (1870-1900). The 14th Amendment prevents any state from depriving "any person" of property without due process of law or denying "any person" equal protection of the laws.
Under both mass public pressure and pressure from the Roosevelt administration,by 1938 the court generally stoppedstriking down laws [LOCHNER?] regarding economic regulation on any grounds, and began to elevate protection of personal liberties over property rights. As described in an article about the rise and fall of the corporate personhood doctrine by Carl J. Mayer, "Personalizing the Impersonal: Corporations and the Bill of Rights," 41 Hastings Law Journal 577 (1990), the Supreme Court had fully abandoned the "corporate personhood" doctrine as a means for advancing corporate interests by the 1960s.
Although the 14th Amendment mentions "persons" in several places, the First Amendment - the amendment that the court used for empowering corporations inCitizens United and other election cases - does not even once mention the word "person." As Mayer explained, the use of the "corporate personhood" doctrine was far more persuasive in the context of protecting corporate property rights under the 14th Amendment than when extended to include corporations in the enjoyment of the intangible rights, such as freedom of speech, contained in the First Amendment. Thus, the court took a different approach to expand corporate power that did not employ the legally weak, intuitively unpersuasive and oxymoronic "corporate personhood" doctrine.
The Supreme Court did not base its pro-corporate First Amendment decisions on supposed "constitutional rights" of corporations. Instead, it applied novel interpretations of the First Amendment that were independent of the identity of the speaker to open the floodgates of corporate money in elections, thereby turning elections into the high-return investment vehicles they are today.
The novel interpretations of the First Amendment were initiated in two Supreme Court cases decided decades before Citizens United. In its 1976 Buckley v Valeo decision, the Supreme Court equated spending money in politics with First Amendment protected speech and overturned federal limits on expenditures in elections as violating the First Amendment.
Its 1978 decision in First National Bank of Boston v. Bellotti was the first case in which the Supreme Court overturned a law that restricted corporate money in politics. In this case, involving a referendum question, the decision rested on the supposed First Amendment right of the listener, not the right of the speaker. The Court clearly explained that it was neither creating a corporate right nor relying on any notion of corporate personhood. In fact, the US Supreme Court shot down the court below for anachronistically framing the argument as one of corporate rights and corporate personhood:
The Court below [the Supreme Judicial Court of Massachusetts] framed the principal question in this case as whether and to what extent corporations have first Amendment rights. We believe that the [Massachusetts Court] posed the wrong question. The Constitution often protects interests broader than those of the party seeking their vindication. The first amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" first amendment rights, and if so, whether they are coextensive with those of natural persons. Instead, the question must be whether [the statute] abridges expression that the first amendment was meant to protect. We hold that it does.
...
The inherent worth of the speech in terms of its capacity for informing the public_{does not depend upon the identity of its source}_, whether corporation, association, union, or individual.
...
The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.
Expressly following the approaches taken in these two cases, the court broke no new ground in Citizens United when it ruled that:
... voters must be free to obtain information from diverse sources in order to determine how to cast their votes.
...
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
Thus, in Citizens United, the Supreme Court continued to articulate a theory of speech that underlies all the court's decisions allowing money into politics. What was novel in Citizens United was not anything remotely related to corporate personhood, but the court's expansion of the theory it provided in Bellotti from referendum questions to electioneering for candidates. In both cases, the court defined freedom of speech as protected by the First Amendment from the perspective of the listener, rather than of the speaker. The court held that the listener had the right to listen to all sources, whether the sources be corporations, partnerships, other business entities, individuals, associations or nonprofits. The court relied on the phrasing of the First Amendment to rule that Congress could not abridge "freedom of speech" in the abstract, irrespective of the source of the speech or the rights - or absence of rights - of the speaker.
The court could not have made any clearer that the right it defined has nothing to do with the "personhood" of the speaker, the source of the money for the speech or the rights of the source of the money. Citizens United and four other cases were decided after 2006, when pro-corporate justices, led by Chief Justice John G. Roberts, reached a majority of five on the Supreme Court. In these cases, the court combined the "money is speech" theory of Buckley with the "furthering free and open debate" analysis provided for referendum questions of Bellotti to usher unlimited corporate money into electoral politics. Thus, the Roberts 5 employed the more easily defensible abstract "open debate" basis for providing unlimited private money in elections that was created decades earlier, far removed from any reliance on the questionable idea of corporate personhood doctrine and any questions of whether corporations have the same rights as people.[DISSENT?]
Many may be surprised to learn that no federal campaign finance law has ever been struck down by the Supreme Court on grounds of "corporate personhood" or any kind of corporate rights. The court has consistently hinged its decisions on the First Amendment rights of the listener to hear all sources of the free and open debate and of society to enjoy an abstract "freedom of speech" disconnected from the identity of the speaker.
Citizens United was not the only case in which the Roberts 5 placed their pro-1-percent thumbs on this scale of justice. Of the four other decisions since 2006 in which the Roberts 5 extended the role of private interest money in politics, three had nothing to do with corporations. While the fourth did as much as Citizens United to open wide the gates to corporate money, like Citizens United, it did so without resorting to corporate personhood or corporate "rights." Those four cases seem to have been largely ignored by those inflating the importance of "corporate personhood" as the key problem. Together these cases show that corporate personhood actually has nothing to do with the key problem of money in politics.
The relatively ignored 2011 Arizona Free Enterprise v. Bennettdecision, which overturned an Arizona public campaign funding law adopted by referendum, is probably more important than Citizens United. This is because it struck down a way of using public funding to effectively compete with private interest money in elections. The Roberts 5 thus showedthey would brook no workarounds of their decisions that have the effect of mandating corrupt elections.
Abolishing corporate constitutional rights or the legal concept of "corporate personhood," as it applies to elections, would have no effect on the court's analysis in Citizens Unitedor any of these other four cases, because none of its decisions mentioned, relied upon or in any way depended on that concept or any rights of corporations. The same is true of all the court's decisions dating back to the 1976 origin of the "money is speech" doctrine. The decision in Citizens United struck down a 1907 federal law which prohibited corporate-sponsored political messages. That law had been adopted after two presidential elections in which massive, corporate-funded electioneering determined the outcomes led topopular outrage against corporate contributionsand forced Congressional action.
No breathing human person with standing in the Citizens United case actually asserted the "right" to have his or her TV programming interrupted to hear a corporate-sponsored political message. This "right" of real living persons to hear corporate electioneering was created by the Roberts Court for an imaginary voter. The court allowed the not-for-profit corporate party in the case to rely on court-imagined rights of real, living human beings who were not parties to the case. So, the court in effect struck down laws embodying the long-standing will of the people without any plaintiff in court asserting an individual right violated by that law. Further,as Justices Stevens, Ginsburg, Breyer, and Sotomayor asserted in their dissent, the court used the case to "rewrite the law relating to campaign expenditures by for-profit corporations and unions" which also were not parties to the case. In all these ways, the court decision thus violated the Constitution's "case and controversy" requirement. The decision was actually no more than an "advisory opinion," a type of decision the US Supreme Court has no constitutional authority to make. The Roberts 5 thus played fast and loose with constitutional limitations on its powers.
Where the Roberts 5 did "shockingly" break new ground in Citizens United and did reverse clear precedent was in its failure to strike a rational and principled balance between the negligible speech value of private money in elections and the harm such private money causes to the democratic form of government. As stated by Justice James C. Nelson, dissenting from what he considered a futile effort by the Montana Supreme Court to insulate Montana from the pernicious and unconstitutional effects of the Citizens United decree:
Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government's compelling interest in preserving the fundamental right to vote in elections. Western Tradition Partnership v. Attorney General Bullock (Montana, December 30, 2011)
The Montana Supreme Court articulated the strategic ground upon which Citizens United should properly be attacked - the proposition that money is such valuable speech that the corrupting influence of money in elections can be ignored. By refusing to engage in the usual balancing of First Amendment rights against potential for public harm when performing its First Amendment analysis, the Roberts 5 reversed the court's own First Amendment precedent, as well as the law regarding corporate financing of elections that extended back to the era of Theodore Roosevelt.
For their traditional First Amendment balancing, on one side of the scale, courts have categorized the speech as either a kind that communicates an idea, opinion, demand, information relevant to democratic debate, etcetera, or a kind that better fits the category of being merely an instrumentality of transactional conduct. (The speech can also fall in the middle between these two categories). The more communicative and the less transactional, the more weight the courts have recognized on this side of the scale. On the other side of the scale is weighed the amount of harm done by allowing the speech. Speech that merely facilitates the conduct of transactions, such as fraud, conspiracy, insider trading tips, pimping and so forth may properly be criminalized and regulated without much regard for the fact that the means for carrying out the transactions may be entirely speech. Money in politics falls within the category of transactional speech, and it also causes severe harm to the democratic form of government. It may, therefore, be regulated and criminalized.
Other legal restraints on communicative speech, including judicial gag orders restricting pre-trial publicity and laws prohibiting the publication of the name of a rape victim, similarly are considered to have insufficient value as communication to justify the harm they might do. No one disputes that the clear harms caused by these categories of speech activities may outweigh any communicative value such speech may have.
The Citizens United decision is constitutionally flawed for two reasons that have nothing to do with corporate personhood. Each of these flaws provides adequate grounds for Congress to overturn not just one, but all of the Supreme Court decisions relating to private money in politics since 1976.
First, the Roberts 5 stepped outside the court's constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court's own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckleydecision in 1976. Every decision widening the gates to money in politics sinceBuckley, including Citizens United, has violated the same constitutional principle prohibiting court jurisdiction over such political questions.
Second, even if the court had constitutional authority to take up an issue of election integrity, which it does not, the court overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation, even accepting the distorted view that money in the form of electioneering expenditures is the kind of speech the First Amendment was intended to protect.
By contrast, the public has a far more profound and compelling interest in preventing the death of representative democracy by allowing continued auction of its elections and laws to wealthy corporations. Corporations profit from the government policies and government contracts they receive in exchange for their payoffs to and for politicians. For example, a study done by Raquel Alexander, Susan Scholz, and Stephen Mazza of the University of Kansas found a financial return on investment of $220 for every dollar spent on lobbying, including election-cycle lobbying. This and other evidence of corruption was found to be unimportant by the pro-corporate Roberts 5 in Citizens United. The court instead willfully misinterpreted the language of the First Amendment as providing such absolute right to an abstract listener to hear corporate advertisements as to overshadow the public's greater interest in preventing private money from corrupting elections and government, disenfranchising the many by the money, and causing elected politicians to divert federal and state money toward their corporate benefactors.
The sterile, highly technical issue of corporate personhood is an antiquated doctrine that played no role in Citizens United or any of the other election cases. From a practical point of view, as the Supreme Court itself pointed out, whether corporations should have First Amendment rights is the wrong question to ask, and, also, the wrong argument to wage. Limiting the scope of who can enjoy speech rights alienates such potential allies as the American Civil Liberties Union (ACLU) and diverts energy away from the actual constitutional problems.
A public aroused by and sympathetic to Occupy Wall Street may pressure Congress for an immediately available solution already provided in the Constitution and based on ordinary majority votes, as described in the "Constitutional Amendment Not Needed: Congress Already Has a Remedy" article. Diverting this public into seeking an unnecessary constitutional amendment on an irrelevant issue allows the serious threat to democracy created by the present Supreme Court majority to continue for the 2012 election, and on into the indefinite future.
Consider, also, that attacking the actual First Amendment grounds used by the court demonstrates the gross unfairness of the court's decision. To see this, let's compare a recent, genuine First Amendment issue involving Occupy Wall Street protesters. In addition to their general assemblies, working groups, marches and demonstrations, in which they exercised their pure First Amendment rights of "freedom of speech" and "right of the people peaceably to assemble" the protesters used the extremely effective symbolic communication activity of encampments for discussion and learning by the dispossessed and the committed. The police violently attacked and destroyed encampments and arrested or assaulted many protesters who were clearly exercising rights embodied in the First Amendment.
While this pure political speech and assembly on behalf of the 99 percent has been violently suppressed, the use of money by the 1 percent to influence elections, politicians, policies and contracts for private gain continues under the protection of the Roberts 5. This amounts to one rule for the 1 percent and an entirely different rule for the protesters representing the 99 percent.
The comparison of the treatment of private money in elections with the treatment of Occupy encampments is instructive on both sides of the First Amendment scales. A fair balancing of the respective weights strongly favors protecting the Occupy protesters' First Amendment right to peaceably assemble in their highly communicative encampments that do no harm, while denying the 1 percent a right to corrupt politics with their high-return-on-investment transactional spending on behalf of candidates that are highly destructive to the democratic form of government. Unfortunately, so far, neither municipal authorities nor the Supreme Court has done that fair balancing.
The contrast in application of the rule of law is at the very heart of what Occupy Wall Street is protesting - one law for those in the 1 percent who paid for advertising to have representatives elected into government, and another law for the majority of the governed.
While corporate advertising often works to elect candidates favorable to the corporations, it does not appear to satisfy the democratic aspirations of the public: "the latest Rasmussen Reports national telephone survey finds that just 20 percent of likely US voters say the federal government has the consent of the governed."
Occupy Wall Street has already demonstrated the capability of mobilizing large numbers of people against gross inequality. The gross inequality and failure to apply a consistent rule of law in interpretation and application of the First Amendment to money in politics on the one hand, and to protester's encampments on the other, is a prime example of what they protest.
The urgency of removing private money from elections demands first properly understanding the basis for the court's decisions. It also requires determination not to be diverted by politicians, fundraising public interest organizations or professional activistsfrom using that understanding to create an effective strategy.
Fortunately, an effective strategy does not require a constitutional amendment, whether for the irrelevant task of repealing corporate personhood or for the imperative task of excluding private money - not just for-profit corporate money - from elections.
Without the corporate personhood and constitutional amendment diversions, Sen. Sanders, Rep. Deutch and an aroused public can demand that Congress use its existing constitutional powers under Article III, Section 2 to restore the traditional limits on court jurisdiction over the political question of private money in elections. Then Congress will be free to pass legislation abolishing corrupting private finance of elections. While substantial public pressure is still needed for Congress to pass this legislation with ordinary majority votes, the barrier to success is far lower than the third-thirds vote in each house and ratification by three-fourths of the states required for a constitutional amendment. This direct route to restoring government of, by and for the people addresses the actual constitutional problems raised by the court, removes court power to find other creative vehicles to corrupt election and is available now without a constitutional amendment.
:{
ROB HAGER
Rob Hager, a Harvard Law graduate, is a public interest litigator who filed amicus briefs in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy. He is currently writing a three-part book assessing proposals for ending the political influence of special interest money. The current draft of the first part, Hillary Clinton's Dark Money Disclosure "Pillar," is available online.
JAMES MARC LEAS
James Marc Leas is a patent attorney and a past co-chair of the National Lawyers Guild Palestine Subcommittee. He collected evidence in Gaza immediately after Operation Pillar of Defense in November 2012 as part of a 20-member delegation from the US and Europe and authored or co-authored articles describing findings, including "Why the Self-Defense Doctrine Doesn't Legitimize Israel's Assault on Gaza." He also participated in the February 2009 National Lawyers Guild delegation to Gaza immediately after Operation Cast Lead in 2009 and contributed to its report,
==
aei hillary hit 8/16
http://www.aei.org/publication/a-constitutional-amendment-overturning-citizens-united-really-how/
One jarring note in Hillary Clinton’s acceptance speech at the Democratic National Convention was her statement that she would press for a constitutional amendment to overturnCitizens United v. Federal Elections Commission. This 2009 Supreme Court case held that corporations had the same rights as individuals to make statements for or against the election of a candidate for public office. Particularly difficult to understand was her linking Citizens United to the fact that our economy is not functioning well for many Americans.
Taking the last point first, what could be the link between Citizens United and a poorly functioning economy? It’s likely that Ms. Clinton wanted her listeners to infer that corporate power, expressed through independent expenditures—presumably contributions to superpacs or other hidden sources—had distorted the public’s will for the benefit of powerful private parties.
This is a peculiar claim to make after almost eight years of the Obama presidency, in which the most significant government actions—the Dodd-Frank Act, ObamaCare, and various tax increases on corporations and wealthy individuals—could hardly be said to favor corporations or business interests generally. It is also peculiar in light of a recent Wall Street Journal report that hedge fund contributions to Clinton superpacs have outraised those to Trump superpacs by a ratio of more than 2000-to-1 ($46.5 million to $19,000).
But leaving aside these anomalies, what is it about Citizens United that has stirred Ms. Clinton to propose something as drastic as a constitutional amendment, especially one affecting the First Amendment’s right to free speech?
Many of Ms. Clinton’s listeners who cheered her idea probably believe that their right to free speech would not be affected by overturning Citizens United. Of course, the language of the amendment would be determinative, but let’s assume it is as simple as adding new language at the end of the First Amendment as it now reads. Thus, the current language “Congress shall make no law abridging the freedom of speech,” would be supplemented by “except that corporations are prohibited from making political contributions or supporting or opposing any candidate for elective office.”
The New York Times is a corporation, so this language would prohibit the Times from editorializing in favor of or against either Ms. Clinton or Donald Trump. Moreover, it might shut down blogs, or firms like Facebook or Twitter, that are corporate vehicles for the expression of opinions about candidates by others. Clearly, closing down newspapers that publish editorials wouldn’t be satisfactory to many Americans, and if extended to other corporate opinion forums would be highly unpopular among the American people. How, then, could the language be modified to allow the New York Times and other corporations to express their views and still overturn Citizens United?
One way would be to make an exception for media corporations. Such an exception would clearly exempt the Times, but it would also exempt Citizens United, which was simply a corporation that made and distributed a film critical of Ms. Clinton in 2008—in other words, a media corporation by anyone’s definition.
What is a media corporation, anyway? If an oil company made and circulated a film in support of fracking, or set up a blog on which people could debate energy policies, would it then be a media corporation? If so, it would be easy to escape the new amendment, and nothing would be accomplished by making an exception for media corporations.
Another way to narrow the scope of a constitutional amendment so that it didn’t cover corporations like the New York Times would be to invoke the idea ofbalance. At one time, on the theory that the airwaves were a limited, government-licensed resource, the FCC required that all political statements for and against candidates over radio or TV had to be balanced. If a station allowed one candidate to speak, then an opposing candidate was required to get “equal time.” Another idea was the so-called “Fairness Doctrine” which required both sides of a major public issue to be presented if one side was covered.
It is questionable whether implementing such a rule is feasible in today’s world. How would newspapers, magazines, and a zillion blogs have covered all 17 Republican candidates in this year’s primary period? And requiring the Times and others to provide a “fair” appraisal of all four presidential candidates on its editorial pages would be a considerable burden. One of the reasons equal time and the Fairness Doctrine were abandoned during the 1980s was that, to avoid the expense involved, radio and TV stations simply avoided candidate interviews or controversial issues.
So how would a constitutional amendment that would overturnCitizens United actually work? Given the importance of the idea, and the fact that it has been advanced by a person who could be president, it would be fair to ask Ms. Clinton to be more explicit during the coming campaign about her plan for a constitutional amendment.
Peter J. Wallison is the Arthur F. Burns fellow at the American Enterprise Institute. His latest book is “Hidden In Plain Sight:What Caused the World’s Worst Financial Crisis and Why It Could Happen Again” (Encounter, 2015).
===
https://www.thenation.com/article/california-could-sound-the-loudest-call-yet-for-overturning-citizens-united/
California Could Sound the Loudest Call Yet for Overturning ‘Citizens United’
The California Supreme Court clears the way for voters to demand a constitutional amendment to get big money out of politics.
By John Nichols
January 5, 2016
==
==
ggl suggests good and positive
http://www.washingtonmonthly.com/magazine/januaryfebruary_2015/features/let_us_now_praise_corporate_pe053466.php
==
pwl memo -->
Another significant shift in the law since Powell’s memo was circulated has been the gradual expansion ofcorporate constitutional rights(referred to by some business groups as “business civil liberties”), especially in the realms of commercial and political speech. The most infamous example is the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. In the commercial sphere, companies have similarly used corporate speech doctrines to challenge various restrictions on corporate advertising (e.g. direct-to-consumer advertising of prescription drugs for off-label uses), limits on media ownership, and product safety labeling requirements (e.g. cigarettes and genetically modified foods).
Corporate constitutional rights are regularly claimed (with the implicit threat of litigation) in opposition to new or proposed regulations. One recent example came during recent attacks on regulations created by the Dodd-Frank financial reform package, which contained a provision requiring that companies report their use of tin, gold and otherminerals that can be traced back to the conflict-ridden Democratic Republic of the Congo. In its comments to the SEC, Tiffany & Co. claimed the SEC rules would “compel speech in a manner that violates the First Amendment.”
===
Irving-based ExxonMobil Corporation (NYSE: XOM) launched a counteroffensive against the ongoing effort to target American energy companies for presumed politically incorrect viewpoints by left wing attorneys general. The Texas energy giant accused Massachusetts AG Maura Tracy Healey of violating its civil rights in federal court Wednesday.
In a strongly-worded, 33-page complaint brought by the Texas energy company, ExxonMobil accused General Healey of violating several civil rights protections and unlawful interstate commerce intervention while colluding with other attorneys general and private third parties. Without a permanent injunction and other granted forms of financial relief from the federal courts, the company expects to only be further harmed, according to documents obtained by Breitbart Texas.
A critical moment in ExxonMobil’s case civil against General Healey centers on a meeting in March 2015, when she and 19 other attorneys general comprising the “Green 20” declared their collective intent to target the company and others like it with subpoenas and related political actions. The complaint alleges that Healey’s promise of an investigation into the company was prejudiced by her expectation that it would “reveal ‘a troubling disconnect between what Exxon knew’ and what it ‘chose to share with investors and with the American public’.” The pleading repeatedly makes note of Healey and her associates’ political biases as the primary driver for their legal pursuits.
The State of Massachusetts’ effort to probe whether ExxonMobil “committed consumer or securities fraud by misrepresenting its knowledge of climate change” was summarily deemed “a weak pretext for an unlawful exercise of government power to further political objectives,” according to the document. The company claims that it has “for more than a decade” recognized the “risk of climate change and its potential impacts”.
On April 19, ExxonMobil was served a subpoena to further study energy and securities sales potentially occurring within the Commonwealth. The company claims that it neither sold fossil fuel products nor owned and operated a single retail location there in at least five years. Further, it sold no equity to the public there during the same time period. The complaint argues that the demands for documents related to activities outside of the Commonwealth were out of bounds.
General Healey’s “effort to silence, intimidate, and deter those possessing a particular viewpoint” rises to the level of a claimed First Amendment violation, according to the court filing. ExxonMobil argues that Massachusetts’ 40-year timeline for document demands “constitutes an abusive fishing expedition” in violation of its Fourth Amendment protections while Healey’s public commentary about the company presents an addition due process concern – leaving ExxonMobil doubting it is on the receiving end of a “disinterested prosecution”. The company raises additional issues of interstate commerce regulation and procedural violations as well.
The lawsuit hopes to halt the enforcement of Massachusetts’ subpoena and be granted other forms of relief the court feels ExxonMobil is entitled to, including the costs of litigation.
The Irving company’s docket is not limited to Massachusetts, however. Breitbart Texas previously reported on how Texas Attorney General Ken Paxton moved to intervene in a then-state court battle brought by the U.S. Virgin Islands Attorney General Claude Walker in May. Texas decried the Virgin Islands’ similar “abusing the power of the subpoena” and warned that if left unchecked, “anyone can be criminally investigated” for viewpoints not acceptable to incumbent political powers. In response, the Virgin Islands relocated its case to a federal district court, where the parties continue to disagree on jurisdiction and venue for the matter, according to the complaint.
Outside of the courtroom, ExxonMobil has been fending off attempts from activist investors to force internal climate policy reforms. A May 2016 shareholders meeting ended when investors voted in large margins against the hiring of new climate experts and hydraulic fracturing (fracking) disclosures, according to a separate Breitbart Texas report.
California Attorney General Kamala Harris, a U.S. Senate candidate and member of the Green 20, recently brought criminal charges against Houston-based Plains All-American Pipeline L.P. (NYSE: PAA) after a leak was discovered downstream from ExxonMobil plants near Refugio State Beach.
ExxonMobil’s lawsuit was filed in the United States District Court for the Northern District of Texas, Fort Worth Division. A copy of the complaint has been provided below.
Logan Churchwell is a founding member of the Breitbart Texas team. You can follow him on
==
==
New York became the 17th state to call for a constitutional amendment to overturn Citizens United—and the first state legislature with Republican control in either House to do so. And in California, voters will finally be able to decide on a ballot measure calling for a 28th Amendment, now that :{Governor Jerry Brown has allowed SB 254}: to become law.
===
exxon knew:
“The chilling effect of this inquiry, which discriminates based on viewpoint to target one side of an ongoing policy debate,strikes at protected speech at the core of the First Amendment,” wrote Wells and the Exxon legal team.
The Virgin Islands rebutted Wells and Exxon in an April 25 response.
“Your argument that this investigation targets protected speech mirrors arguments that were decisively rejected in the United States’s case against tobacco, which held tobacco companies financially responsible for and imposed sweeping injunctive relief to address a decades-long scheme by those defendants to misrepresent the scientific facts regarding smoking,” reads the letter signed by Virgin Islands Attorney General Claude Earl Walker. “If ExxonMobil knowingly deceived consumers and investors about climate change, it, too, is not above the law.”
:{Numerous conservative groups — some with ties to the climate change denial echo chamber such as Koch-funded groups like Competitive Enterprise Institute, Pacific Legal Foundation, and Heritage Foundation — have also called the Virgin Islands subpoena a First Amendment attack.
So too did the editorial boards of the Wall Street Journaland the National Review Magazine. The Free Speech in Science Project, a group whose funding stream has yet to be revealed, has also pushed a First Amendment argument.}:
==
==
AN
http://www.alternet.org/environment/exxon-using-tobaccos-failed-free-speech-defense-decades-deception-climate-change
he past week has seen a barrage of opinion pieces carrying water for the fossil fuel industry, defending against the ongoing fraud investigations. The Washington Post had two pieces, Newsweek had one and the Financial Times had an editorial, in addition to op-eds in a couple of other conservative outlets. Of those six, half were penned by groups funded at least in part by fossil fuel companies.
The arguments are all by and large the same, claiming that the investigations infringe on fossil fuels companies’ right to free speech while steadfastly ignoring the fact that ExxonMobil funded climate denial to protect their business model.Only the Financial Times editorial actually acknowledges the “misleading claims from fossil fuel interests and their allies” but concludes that it is “because the stakes [of the debate] are so high that all arguments must be heard.” While that sounds fair at first Glantz, it quickly sounds silly when applied to a recent example: the tobacco industry’s denial of the fact that its carcinogenic product is addictive.
All but one of the pieces similarly ignored the tobacco industry precedent and the only person who mentioned it was one of the few voices not plugged into the professional denial apparatus.
As for the pros, Newsweek ran a blog post from the Hoover Institution, which rambled on about climate science that’s supposedly still uncertain, lamenting that fair debate is impossible if one side can bring the other to court. Not mentioned is how a fair debate can be possible if one side launches multi-million dollar PR campaigns to mislead the public about the science.
Feds Refer Exxon #Climate Investigation to FBI: https://t.co/MS5BfY7PNp via @EcoWatch pic.twitter.com/mBWybUPmVb
— DeSmogBlog (@DeSmogBlog) March 7, 2016
Heritage’s Hans von Spakovsky’s piece in the Washington Times misses the tobacco precedent, but went all the way back to the Spanish Inquisition for his First Amendment fear mongering. George Will used his column in the Washington Post to offer a lesson on how this campaign is part of a larger progressive strategy to shut down debate. But apparently it’s Will that needs a history lesson, as he uses as evidence a story about a 2013 IRS investigation accusing the agency of targeting conservatives. But that investigation “found no evidence” that the IRS actions were politically motivated. No doubt his column is similarly bereft of evidence.
The Washington Post also gave space to the Competitive Enterprise Institute (CEI)to defend itself by pretending it is being investigated for political dissent, not its years of Exxon funding for climate denial. Worth noting CEI’s careful phrasing about its relationship with Exxon, which CEI says “publicly ended its support for us after 2005.” With Donors Trust and others making it possible to anonymize giving, the key word is “publicly.”
Ironically, despite the admission that its Exxon funding is a perfectly legitimate reason to look into its communications, CEI considers its subpoena to be a fishing expedition. Meanwhile, CEI’s own coal-funded Chris Horner continues to engage in nuisance FOIAs for climate scientists.
Exxon’s defense is a hot topic in denierland, as it advances the narrative that the fossil fuel industry is an embattled population facing government persecution. But here’s a reality check: Before Honduran activist Berta Cáceres was murdered on March 2, she reported receiving 33 death threats after years of intimidation. Instead of investigating a man who had previously bragged about his plans to murder her, authorities claim the prime suspects are two of her fellow activists.
Heartbreaking
Activist Berta Cáceres Murdered in Honduras https://t.co/Zj97cmwQi3 @FoEint @greenpeace pic.twitter.com/tAujvEGtMR
— EcoWatch (@EcoWatch) March 3, 2016
Looks like the fossil fuel industry isn’t the one facing persecution after all.
===
==
jaron against corp personhood?
---
===
http://www.alternet.org/environment/cop21-international-rights-nature-tribunal-finds-corporations-governments-guilty-crimes
==
==
history:
LEGAL
NCLC
Huge corporations, including Powell’s Philip Morris, invested millions of dollars in the Chamber of Commerce’s National Chamber Litigation Center
Chavern is also founder and president of the Chamber’s Center for Women in Business.
CORP PERSON
Here Come the Foundations
Despite the Rehnquist dissents, Powell’s vision of an unregulated corporate political “marketplace,” where corporations are freed by activist courts from the policy judgment of the majority of people, won out. Powell, of course, could not have acted alone. He could not have moved a majority of the Court to create corporate rights if no one had listened to his advice to organize corporate political power to demand corporate rights. Listen they did — with the help of just the sort of massive corporate funding that Powell proposed.
Corporations and corporate executives funded a wave of new “legal foundations” in the 1970s. These legal foundations were intended to drive into every court and public body in the land the same radical message, repeated over and over again, until the bizarre began to sound normal: corporations are persons with constitutional rights against which the laws of the people must fall.
Huge corporations, including Powell’s Philip Morris, invested millions of dollars in the Chamber of Commerce’s National Chamber Litigation Center and other legal foundations to bring litigation demanding new corporate rights. In rapid succession, corporations and supporters funded the Pacific Legal Foundation, the Mid-Atlantic Legal Foundation, the Mid-America Legal Foundation, the Great Plains Legal Foundation (Landmark Legal Foundation), the Washington Legal Foundation, the Northeastern Legal Foundation, the New England Legal Foundation, the Southeastern Legal Foundation, the Capital Legal Center, the National Legal Center for the Public Interest, and many others.
These foundations began filing brief after brief challenging state and federal laws across the country, pounding away at the themes of corporations as “persons,” “speakers” and holders of constitutional rights. Reading their briefs, one might think that the most powerful, richest corporations in the history of the world were some beleaguered minority fighting to overcome oppression. The foundations and the corporate lawyers argued that “corporations are persons” with the “liberty secured to all persons.” They used new phrases like “corporate speech,” the “rights of corporate speakers,” and “the corporate character of the speaker.” They demanded, as if to end an unjust silence, “the right of corporations to be heard” and “the rights of corporations to speak out.”
This corporate campaign sought to redefine the very role of corporations in American society. The message was insistent: We should no longer think of corporations as useful but potentially insidious industrial economic tools. We should no longer be concerned that corporations might leverage massive economic power into massive political power or trample the public interest for the profit of the few. Instead, we should think of corporations as pillars of liberty, institutions that Americans can trust. They would protect our freedom for us. They would stand up to “bad” government for us.
A 1977 brief of the Chamber of Commerce, for example, argued that the Court should strike down a state law that limited corporate political spending in citizens’ referendum elections because corporations help maintain our freedoms: “Business’s social role is to provide the people a valuable service which helps maintain their freedoms. … The statute at issue prevents the modern corporation from fulfilling a major social obligation. … ”
By 1978, the millions of dollars invested in the radical corporate rights campaign began to pay off. The first major victory for the corporate rights advocates came in 1978, with a corporate attack on aMassachusetts law in First National Bank of Boston v. Bellotti.Several international corporations — including Gillette, the Bank of Boston, and Digital Equipment Corporation — filed a lawsuit after the people of Massachusetts banned corporate political spending intended to influence a citizen referendum. Justice Lewis Powell cast the deciding vote and wrote the 5–4 decision wiping off the books the people’s law intended to keep corporate money out of citizen ballot questions. For the first time in American history, corporations had successfully claimed “speech” rights to attack laws regulating corporate money in our elections.
With that success, an emboldened corporate rights campaign next attacked energy and environmental laws. In the 1982 case of Central Hudson Gas & Electric Corporation v. Public Service Corporation of New York, utility corporations and the array of corporate legal foundations all argued that a New York law prohibiting utility corporations from promoting energy consumption violated the corporations’ rights of free speech. The corporations won again, and again Justice Powell wrote the decision for the activist Supreme Court that he had imagined in his 1971 Chamber of Commerce memo.The corporate interest in promoting energy consumption for corporate profit trumped the people’s interest in energy conservation. Over a period of six years, Justice Powell wrote four key corporate rights decisions for the Supreme Court. These unprecedented cases transformed the people’s First Amendment speech freedom into a corporate right to challenge public oversight and corporate regulation.
---
msnbc
...
A new report by the Constitutional Accountability Center (CAC), a liberal judicial group, at which msnbc got an exclusive first look, finds that since the start of the Roberts Court in 2005, the Chamber has won more than two-thirds of the cases in which it’s gotten involved. And this term, it has weighed in to support corporate interests in nearly a quarter of the cases heard by the nation’s highest court. Just as important, it’s been more active than any other organization in working to shape the court’s agenda by pushing it to take up favored cases.
“The Chamber is not just winning more cases, they’re participating in more cases,” Doug Kendall, CAC’s founder and president, told msnbc. ”So the impact of their litigation is far beyond what it used to be.”
The major result of the Chamber’s success, legal scholars say, has been a string of rulings that threaten to block the courthouse door to ordinary Americans looking to hold corporations accountable. And with court-watchers’ attention focused on higher-profile gay marriage and voting rights cases this term, it’s a development that’s flown largely under the radar....
The Justices typically grant around 75 or 80 out of roughly 8,000 petitions submitted. And when they’re deciding which ones, amicus briefs from well-known players like the Chamber offer a “helpful signal” for the court, David L. Franklin, an associate professor at the DePaul College of Law, and the author of a 2009 study of the Chamber’s record at the Roberts Court, told msnbc.
Between May 2009 and August 2012, the business lobby filed 54 amicus briefs at the cert. stage—that is, when the court is considering which cases to take up—far more than any other private organization, SCOTUSblog reported earlier this month. And it succeeded in convincing the Justices to take the case in nearly a third of those instances—a better success rate than that of any other group that filed more than ten briefs.
“They are very much shaping the diet of cases that goes before the Supreme Court each term,” said Kendall. “And then once they get a case before the court they usually win it.”
--
And its success rate before the Roberts Court rivals—and this past term has outstripped—that of the solicitor general.
In fact, the NCLC’s roster of wins before the 2010–11 Supreme Court term reads like a top ten list of the corporate world’s efforts to strangle working Americans and maximize profits. Its victories included thwarting class-action claims of gender discrimination at Wal-Mart; forcing individuals to have their claims against big corporations settled in arbitration rather than gaining access to the courts; beating back litigation by states and municipalities seeking to regulate greenhouse gases; defeating claims for damages caused by the defective design of vaccines; limiting recovery by whistleblowers; restricting the reach of US law over foreign manufacturers of defective products; and blocking suits by private citizens against brokerage firms for making false statements about securities.
===
LA hotel living wage = prot
:{
}:
http://freespeechforpeople.org/corporate-constitutional-litigation-beats-a-hasty-retreat-in-los-angeles/
==
}:
January/February 2015
Corporate Law’s Original Sin
by Kent Greenfield MAGAZINE
Player with railroads: After a fatal train collision in 1882, a reporter asked the tycoon William Henry Vanderbilt about safety on his lines. “The public be damned!” he snapped.
The public be damned,” railroad magnate William Henry Vanderbilt snorted at a reporter in 1882. The impertinent scribe had asked whether Vanderbilt ran his railroads with an eye toward public benefit. At the time, Vanderbilt was among the most powerful men in American business—and by his own estimation the richest man in the world. His figurative middle finger to the American public was big news, appearing on the front page of hundreds of newspapers within twenty-four hours.
The week before his comment, two trains had collided on his railroad inside the Fourth Avenue tunnel in New York City, killing two passengers and injuring hundreds. Many New Yorkers blamed the accident on Vanderbilt’s unwillingness to cut into profits by spending money on safety measures. His contemptuous words, spoken as he dined in his private train car, salted an open wound. The satirical magazine Puck ran a cover cartoon of a ballooned, profligate Vanderbilt wearing a diamond pin, smoking a stogie, and leaning back in a leather chair with a foot on the throat of an eagle dressed in Uncle Sam garb.
Impolitic as it was, Vanderbilt’s comment embodied the business and political philosophy of the monied classes of the Gilded Age. And for the most part, the law was a willing ally.The Supreme Court of the era repeatedly stepped in to protect business from regulatory obligations. Its most famous decision of this kind was the 1905 case Lochner v. New York, striking down a law establishing a sixty-hour maximum workweek for bakers. New York’s law was part of a broader effort of relatively meek legislative initiatives that included minimum wage laws and bans of child labor. The Court’s libertarian reasoning undermined any regulatory protections of employees or consumers. Attempts to constrain corporate power with the use of regulation would be struck down, in the Court’s words, as “an illegal interference with the rights of individuals.”
The “Lochner era” lasted for nearly half a century; it did significant harm. Attempts to protect consumers, children, and immigrant workers were thwarted by free market ideology masquerading as constitutional law. The Lochner constitution was a Social Darwinist law of the jungle. Upton Sinclair’s The Jungle—a wilderness of unregulated greed and contempt for the public—was what we got.
But constitutional law was not the only problem. Corporate law, too, helped to keep corporations with a narrow set of obligations. A fight between Henry Ford and his rivals John and Horace Dodge gave rise to the pivotal articulation of the rule.
In the second decade of the twentieth century, Henry Ford was making money—an incredible fortune of money—making cars. Ford Motor Company, the company in which he was the dominant shareholder, was selling his masterpiece
Model T as quickly as it could be produced. By the middle of the decade, the company was doing so well that shareholders were receiving each month in scheduled dividends an amount equal to their initial investment. The company also declared “special” dividends for several years, as much as $11 million in 1914.
Today, we are well aware of the dark side of Henry Ford’s influence—his funding of anti-Semitic propaganda, his financial support for Hitler. But in the teens and twenties, Ford cultivated an image of a benevolent mogul. He made headlines in 1914 with his “Five-Dollar Day,” when he doubled the wages of all his workers, explaining to the New York Times that companies had a direct role in improving the lives of the working class. His rhetoric sounded radical: “I believe it is better for the nation, and far better for humanity, that between 20,000 and 30,000 people should be contented and well fed than that a few millionaires should be made.”
In 1916, Ford declared that special dividends had come to an end. He wanted the money to build a new auto manufacturing facility, to be the largest in the world. (The factory that was eventually built, the River Rouge plant, built everything from Model As in the 1920s to Mustangs in the 2000s. A facility on site assembles F150 trucks even now.) Ford brashly claimed that his decision was motivated by a desire to do social good for the company’s employees and customers, arguing that shareholder gain was not the purpose of a successful business but its by-product. A business was about more than making money for shareholders, he said. It was about satisfying the obligations of a robust social contract, doing “as much good as we can, everywhere, for everybody concerned … [a]nd incidentally to make money.” Ford demoted the role of shareholders and promoted the status of workers, saying in an interview with a local newspaper reporter that the profits earned by shareholders had been “awful” and that he wanted to drive down the price of his cars so more benefits could flow to “users and laborers.”[see doug ggl bus]
The shareholders were not amused. Particularly upset were the Dodge brothers, John and Horace, who owned 10 percent of Ford stock. Though they had already made more than a 40,000 percent return on their initial $10,000 investment, they sued for more, asking the Michigan courts to force the board of Ford Motor Company to declare a special dividend. It was a crafty demand. The brothers ran the car company that bore their name, a rival to Ford. An extraordinary dividend from Ford Motor Company would both drain it of its financial surplus and provide cash to capitalize the Dodges’ own competing car company.
Henry Ford understood as much. He had no reason to fill the coffers of a competitor, and numerous solid business reasons to keep the capital in-house and keep his customers and employees happy. But instead of defending his refusal to issue special dividends as an exercise of his considered business judgment, which was both true and something that would have easily won the deference of a court, Ford defended his actions by relegating shareholder interests and bringing workers’ rights to the forefront: “My ambition is to employ still more men, to spread the benefits of this industrial system to the greatest possible number, to help them build up their lives and their homes. To do this we are putting the greatest share of our profits back in the business.”The Dodge brothers seized on that rhetoric as evidence that Ford was using the company to further his own social agenda.
The case eventually made it to the Michigan Supreme Court. Ford’s assertions of worker rights and shareholder subordination—in an era when the Russian Revolution had already begun and socialism was on the rise in the United States—were too much for the state court to endorse. Legal scholar Todd Henderson explains that “if a firm as large and important to the American economy were permitted to pursue an overtly socialist strategy, the political impact and the effect on other firms could be enormous.” On the surface, the case was about whether shareholders were due some dividends. But more fundamentally, Henderson says, it was a “test case of the foundations on which American capitalism would be built.”
The eventual decision was, and still stands for, an iconic statement that corporations have no obligations beyond the bottom line.In one of the most famous passages in the history of corporate law, the Michigan supreme court announced,
:{
}:
A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end. The discretion of directors is to be exercised in the choice of means to attain that end, and does not extend to a change in the end itself, to the reduction in profits, or to the nondistribution of profits among stockholders in order to devote them to other purposes.
Courts, then and now, follow something called the “business judgment rule”—meaning that they did not, and still do not, typically overturn the considered decisions of corporate managers. But Ford’s rhetoric of worker and customer protection was so radical that it moved the court to rule such motivation out of bounds. Dodge v. Ford was a pivotal moment in the development of corporate law. It defined the core purposes of corporations as being distinct from—even contrary to—the interests of workers, customers, and society. The case remains, a century later, as one of the first opinions law students read in their introductory business law course. It is corporate law’s original sin. —K.G.
Kent Greenfield
Kent Greenfield is professor of law and Dean's Research Scholar at Boston College Law School. He is the author of The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities and The Myth of Choice: Personal Responsibility in a World of Limits.
2016 Washington Monthly.
==
Corporate Personhood: Why It’s a Good Thing
Citizens United was a bad decision, but the cry of “Corporations are not people!” isn’t helping fix the problem — in fact, it’s making it worse.
Summer 2015
http://www.utne.com/politics/corporate-personhood-zm0z15uzsau.aspx
By Kent Greenfield, from Washington Monthly
Corporate personhood is thus not only a mechanism for the creation of wealth (by encouraging investment), it is also a mechanism for enforcing accountability (by providing a deep pocket to sue).
The American left is notoriously fractious. But one belief that unites more than most is this: Corporations are not people. “Corporations are people, my friend,” said Mitt Romney in 2011, and Democrats skewered his cluelessness. “I don’t care how many ways you try to explain it,” Barack Obama said on the stump. “Corporations aren’t people. People are people.” During the 2014 midterms, Massachusetts Democratic Senator Elizabeth Warren barnstormed the country to rally the faithful. Her most dependable applause line? “Corporations are not people!”
The main target of the corporations-are-not-people crowd is the Supreme Court’s 2010 Citizens United ruling striking down limits on independent corporate spending in elections. After that case, groups sprang up to fight corporate personhood. Others rebranded themselves by newly taking aim at it. But they do not limit themselves to attacking the Court’s campaign finance jurisprudence. Most groups make a broader attack on corporations being able to assert any First Amendment speech rights at all; and some have called for disabusing all corporations or businesses of any constitutional right.
Common Cause, for example, uses Robert Reich to tout its support for “a constitutional amendment declaring that ‘Only People are People’ and that only people should have free speech rights protected by the Constitution.” Public Citizen, the liberal litigation group founded by Ralph Nader, argues that “rights protected by the Constitution were intended for natural people.” Free Speech for People, one of the groups most influential in the anti-personhood movement, is pushing a “People’s Rights Amendment.” A version has already been sponsored in the U.S. Senate by Jon Tester of Montana and in the House by Jim McGovern of Massachusetts. It would declare that “the rights protected by this Constitution” are “the rights of natural persons.” A range of liberal groups have signed on to the anti-personhood project—MoveOn, Sierra Club and NAACP chapters, and steelworker and SEIU locals. By their count, 16 states and nearly 600 localities have endorsed some kind of anti-personhood amendment. Even in a moment when the progressive left seems otherwise to be fighting rearguard actions, this movement has genuine energy.
These are my people. Many of the leaders of this movement are friends and respected colleagues. I contributed to Elizabeth Warren’s senatorial campaign and voted for Reich when he ran for governor of Massachusetts. Forty years ago, my coal miner grandfather sat me down and told me how a union had saved his life. As a law professor, I have spent my career as an oddity—a progressive who teaches corporate law, almost always the most liberal person in any room of business law academics. A decade ago, I came up with a novel legal theory that shareholder activists recently put to good use suing the Hershey Company over the use of child labor in West African chocolate cultivation.
A corporate lickspittle I’m not.
But the attack on corporate personhood is a mistake. And it may, ironically, be playing into the hands of the financial and managerial elite.
What’s the best way to control corporate power? More corporate personhood, not less.
If you’re shopping for glue sticks or glitter and hearing Christian music over a loudspeaker, you’re probably in a Hobby Lobby store. An arts-and-crafts retailer, Hobby Lobby is a big company, with upwards of 20,000 employees and more than 600 stores. But it’s a “closely held” corporation—meaning its stock is not publicly traded. The stock is owned by members of one family, the Greens of Oklahoma City, who are devout Christians. As enacted, the Affordable Care Act contained a provision requiring the company to provide its employees with health insurance that includes all medically approved forms of contraceptive care. The Greens objected. They believe that four of those methods are “abortifacients,” and claimed that the coverage mandate violated their rights under the Religious Freedom Restoration Act.
When their suit made it to the Supreme Court in early 2014, a group of corporate law professors (of which I was one) filed a “friend of the court” brief arguing against the corporation.
The brief’s main argument? Corporate personhood.
Understand that “corporate personhood” simply expresses the idea that the corporation has a legal identity separate from its shareholders. That separateness, the brief pointed out, is inherent in what it means to be a corporation. A “first principle” of corporate law (as we explained) is that “for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders.” The very purpose of the corporation as a legal form is to create an entity “distinct in its legal interests and existence from those who contribute capital to it.” This separateness means that shareholders are not held liable for the debtsof the corporation. That makes it possible for people who do not wish to oversee the day-to-day activities of companies in which they invest—and do not wish to risk every penny they own if the corporation goes bankrupt—to invest in corporate stock. In other words, this separateness is what makes capital markets possible. And capital markets are essential for the development of a vibrant national economy. Beyond that, corporations can exist long after the life of any individual that invests in, or works for, them. This means, as the legal scholar Lynn Stout has pointed out, that corporations provide a mechanism for society to make long-term, intergenerational investments that are not linked to government or a specific family.
It is not an overstatement to say that corporate separateness has been one of the legal innovations most important to the development of national wealth.
The professors argued that this separateness meant that the Greens should not be able to attach their own religious beliefs to the corporation. The reason the Greens had chosen to form a corporation was to be able to operate the business without running the risk of losing their personal assets if the corporation went belly up. They wanted separateness.
They should not then be able to stand in the shoes of the corporation for purposes of religion.
:{
}:
The Supreme Court disagreed. It held, 5-4, that the Greens could project their religious beliefs onto the corporation and refuse to provide their employees the required contraceptive-care benefits. Justice Samuel Alito’s opinion is evidence of the Court’s much-discussed pro-business tilt, to be sure. But it’s also evidence that the majority doesn’t understand the basics of corporate law. Its sin was not an embrace of corporate personhood but a rejection of it.
In fact, let us now praise corporate persons.
Consider the Deepwater Horizon oil spill disaster. For three months in 2010, Americans woke each morning to the news of another 50,000 barrels of crude spewing into the coastal waters of the Gulf of Mexico. We were justifiably outraged. In a legal system without corporate personhood, the channel for that outrage would be limited to lawsuits and criminal inquiries against individual human beings responsible—managers, workers, and contractors. That’s important, of course. In any legal jurisdiction worth its salt, the search for culpable individuals has to be part of the settling-up of any man-made disaster. But it should not be all. No human being—except, perhaps, Bill Gates—would have enough money to compensate those harmed by a massive disaster like Deepwater Horizon. Because a corporate entity is also on the hook, there’s a chance for something approaching real compensation or real responsibility. Corporate personhood is thus not only a mechanism for the creation of wealth (by encouraging investment), it is also a mechanism for enforcing accountability (by providing a deep pocket to sue).
The movement against “corporate personhood” does not spend much time talking about these aspects of the concept. When the left cries that corporations are not people, what they mean is that corporations should not be able to claim the constitutional rights that human beings can. Yet even here, there is reason to praise corporate personhood.Remember, the opposite of a constitutional right is a government power. If corporations have no rights, then governmental power in connection with corporations is at its maximum. That power can be abused, and corporate personhood is a necessary bulwark.
In 1971, for example, the government sought to stop the New York Times, a for-profit, publicly traded media conglomerate, and the Washington Post, which had gone public as a corporation only a few weeks previously, from publishing the leakedPentagon Papers.The Supreme Court correctly decided that the newspapers had a First Amendment right to publish. That was one of the most important free speech decisions of the 20th century. At the time, no one seriously suggested that the correct answer to the constitutional question was that the Times and the Post, as corporations, had no standing to bring a constitutional claim at all. (And for those of you saying to yourselves, “Well, this isn’t a good example, since the newspapers are protected by the First Amendment’s press clause”: The Court has never given any greater substance to the press clause not already covered in the freedom of speech. And the current proposals to end corporate personhood do not claim to save media corporations any more than pharmaceutical or oil companies.)[not true, carve out]
In 1992, Planned Parenthood won a hard-fought battle to have the Supreme Court reaffirm Roe v. Wade. Planned Parenthood is a corporation; but no one seriously suggested it had no standing to object to limits on its ability to provide abortions. Today, Google and other media companies are fighting government demands to disgorge the contents of their servers. No one seriously suggests that the government’s power should be unchecked because the media companies, as corporations, have no Fourth Amendment rights to be free of unreasonable searches and seizures. Finally, if corporations were not able to claim theFifth Amendment rights to be free of government takings, their assets and resources would always be at risk of expropriation.The risk of investing in corporations would skyrocket, undermining the reason we have them in the first place.
In fact, the argument that corporations should never have constitutional rights is embarrassingly flawed. I often think that those who make it are aware of that fact, and are using “corporations are not people” not as an analytic principle but as an organizing and fund-raising tool.
Please don’t misunderstand me. Of course corporations are not genuine human beings. They should not automatically receive all the constitutional rights that you and I can claim. Corporations cannot vote or serve on juries, for example; it does not make any sense to think of corporations asserting those rights, both because of the nature of the right and the nature of the corporate entity.Similarly, the Court has held that corporations cannot assert the Fifth Amendment right to be free of self-incrimination.The exclusion makes sense, since corporations could otherwise evade all kinds of disclosure obligations necessary to make markets work. Can you imagine General Motors having a constitutional right not to disclose safety defects in their cars?
When the time comes, the Court should draw the same line with regard to the freedom to exercise religion. The right is to protect the freedom of conscience, and only actual human beings have a conscience. (And only some of them at that.) There should be allowances for genuine associations of religious people, such as churches. But because of corporate separateness—that is, corporate personhood—it will be quite difficult for companies to show that they are genuine associations of religious people.
Should corporations be able to assert First Amendment free speech rights? The answer depends on the context; that context includes the fact that the corporation is a legal form, but is not completely dependent on it. Sometimes it makes little sense to protect the First Amendment rights of corporations. Securities laws, for example, routinely require corporations to disclose to the public their financial well-being. If you or I were required to reveal our personal finances, we could object to the requirement as coerced speech, a violation of the First Amendment. But corporations’ arguments along those lines would fail, and they should. In fact, in 2011, AT&T asked that information about its finances be excluded from Freedom of Information Act requests, because the statute has an exception for “personal privacy.” The Court unanimously rejected this claim—and Chief Justice John Roberts ridiculed it in his opinion. That exception, he wrote, “does not extend to corporations. We trust that AT&T will not take it personally.”
On the other hand, sometimes it’s important to protect the right of a corporation to speak, as in the Pentagon Papers case, not because the corporation owns free speech rights but because of the rights of human listeners to listen to what it has to say. This idea—that listeners have a right to hear the words of corporate speakers—is actually a liberal idea. In the 1970s, Ralph Nader’s group Public Citizen brought a First Amendment challenge to limits on commercial advertising. They argued that these laws violated the public’s right to know. Legal scholar Adam Winkler argues that Public Citizen’s advocacy led directly to Citizens United. In his majority opinion in that case, Justice Anthony Kennedy said that the public has a right to know corporations’ views. Public Citizen now decries corporate personhood; if truth be told, it’s their own fault.
When it comes to campaign finance, I agree with the personhood opponents that Citizens United wrongly expanded corporate rights to spend money on elections. I also agree that the Court’s mistake traces its origins to the 1976 case Buckley v. Valeo, where the Court struck down limits on individual (human) campaign expenditures as violations of free speech. But the problem in Citizens United was not the Court’s supposed holding that corporations are people, and the problem in Buckley was not a supposed ruling that “money is speech.” Both are mischaracterizations, and the critical yelps they attract are poorly targeted in any event. Corporations occasionally say things that matter to voters, even in elections. And while money is not itself speech it is sometimes essential to make speech audible above the din. Giving it, too, can be an expressive act. Imagine if Texas told its citizens they could not contribute to Planned Parenthood or had to pay dues to the National Rifle Association. It would be inane to argue that the First Amendment would not be implicated because money is not speech.
Nevertheless, there are myriad reasons why a commitment to free speech rights—even corporate free speech rights—should not bar reasonable limits on independent campaign expenditures from both corporations and the super rich. It is not hyperbole to say that without such limits, our democracy is at risk. The billions of dollars flooding the electoral process skew it toward the monied and well-heeled, and pervert the nature of public service.The current Court is so enamored with a simplistic, libertarian theory of free speech doctrine that it is blind to those risks. A sane Court could easily construct exceptions to otherwise applicable doctrine to protect the sanctity and fairness of our elections. In fact, Canada’s supreme court has done that very thing.
But notice something. One can support campaign finance regulation and still acknowledge corporate personhood as well.
In fact, most of the money flooding into the electoral process isn’t coming from corporations. It’s coming from rich individuals like Sheldon Adelson and the Koch brothers. There is a lot of corporate money, to be sure. Chevron, the most politically active public corporation in 2012, spent $2.5 million in that year’s election cycle; the Chamber of Commerce, the largest corporate bundler, funneled over $35 million into various 2012 races. But both were dwarfed by the torrent of individual money. Adelson alone threw almost $93 million into various races during the same period, and the Koch brothers ran a network of shady groups that spent over $400 million.
The power of corporations is frequently misused, usually to the advantage of the financial and managerial elite. Employees, communities, consumers, the environment, and the public interest in general are elbowed aside in corporate decision making, unless the corporation can make money by taking them into account. Corporations are managed aggressively to maximize shareholder return. As a result, the risks they run—whether of oil spills in the Gulf or of financial crises erupting from Wall Street—are often unrecognized until too late. The executives who run American corporations do not generally think of themselves as having obligations to the public. The social contract of American corporations is pretty thin.
But these defects of corporate power, fundamental as they are, are not problems of constitutional law or corporate personhood.They are problems of corporate law, and they could be fixed by corporate law.
American courts forged sweeping protections for corporations during the Gilded Age; the legal fortress was slowly breached during the Progressive and New Deal eras. But in many ways we are back where we started. The Supreme Court is applying twisted ideas of free speech and due process to wall corporations off from accountability. In corporate governance, after a mid-century pendulum swing toward more public-spiritedness, managers and investors are now once again fixated on maximizing shareholder value.
In the last few years, however, there’s been a pushback—even a small bandwagon—against the shareholder primacy norm. An article in the Harvard Business Review (that socialist rag!) declared in 2012, “There’s a growing body of evidence … that the companies that are most successful at maximizing shareholder value over time are those that aim toward goals other than maximizing shareholder value. Employees and customers often know more about and have more of a long-term commitment to a company than shareholders do.” New York Times columnist Joe Nocera wrote that “it feels as if we are at the dawn of a new movement—one aimed at overturning the hegemony of shareholder value.” An opinion piece in the Financial Times recently argued that “[c]ompanies need a bigger and better purpose than simply maximising shareholder value.” And speaking of socialist rags, a 2011 Forbes article called shareholder primacy “the dumbest idea in the world.”
The case against shareholder primacy was argued best by Steven Pearlstein last year in the Washington Post. Maximizing shareholder value, he wrote, is a “pernicious” ideology that “has no foundation in history or in law.” He continued, “What began in the 1970s and ’80s as a useful corrective to self-satisfied managerial mediocrity has become a corrupting, self-interested dogma peddled by finance professors, money managers and over-compensated corporate executives.” In fact, he argued, “much of what Americans perceive to be wrong with the economy these days—the slow growth and rising inequality; the recurring scandals; the wild swings from boom to bust; the inadequate investment in R&D, worker training and public goods—has its roots in this ideology.”
These skeptics are popularizing what a number of legal scholars and I have been saying for quite a while—that corporations should be seen as having robust social and public obligations that cannot be encapsulated in share prices. Now, executives have legal obligations to take account of shareholder interests. Progressive corporate scholars argue that these “fiduciary duties” should be extended to employees and other corporate stakeholders.
One way to make these obligations operational is to make the decision making structure of the company itself more pluralistic. In a number of European countries, for example, companies have “codetermined” board structures that require representation of both shareholders and employees. Even with these management structures, corporations continue their focus on building wealth—that is the core purpose of the corporate form—but not for a narrow sliver of their investors only. And it works. Germany, where codetermination is strongest, is the economic powerhouse of Europe. A former CEO of the German company Siemens argued that codetermination is a “comparative advantage” for Germany; the senior managing director of the U.S. investment firm Blackstone Group had said that codetermination was one of the factors that allowed Germany to avoid the worst of the financial crisis.
Notice something. These reforms make corporations more like persons, not less. Human beings routinely balance a multitude of interests—I am, for example, a parent, a spouse, a teacher, a writer. Only the rare oddball—Donald Trump, maybe?—behaves as if accumulating money is the paramount and unitary good. Humans have consciences; corporations do not. Left to themselves, they will behave as if profit is the only thing that matters. The best way to constrain corporations is to require them to sign on to a more robust social contract and to govern themselves more pluralistically—mechanisms designed to mimic the traits of human personhood within the corporate form.
If corporations had these traits of personhood, I would worry less about corporate involvement in the political arena. American corporations have become a vehicle for the voices and interests of a small managerial and financial elite—the notorious 1 percent. The cure for this is more democracy within businesses—more participation in corporate governance by workers, communities, shareholders, and consumers. If corporations were more democratic, their participation in the nation’s political debate would be of little concern.
But corporate personhood opponents are making these corporate governance reforms less likely. Personhood skeptics often characterize corporations as having a narrow social role; because of that narrow role, the argument goes, they owe it to shareholders to stay out of politics. The famous words of the conservative economist Milton Friedman, that the “one and only social responsibility of business” is to make “as much money as possible,” were long used as the mantra of corporate managers who wanted to be released from any social obligation. Now the opponents of Citizens United are endorsing a similarly narrow view of business as a way to explain why corporations should be exiled from the public square. To fight corporate personhood, they are bolstering shareholder primacy.
Take, for instance, Justice John Paul Stevens’ dissent in Citizens United itself. He argued, among other things, that corporate speech should be limited in order to protect shareholders’ investments. Shareholders are seen as owners, as “those who pay for an electioneering communication,” and are assumed to have “invested in the business corporation for purely economic reasons.” Stevens argued that corporate political speech did not merit protection because “the structure of a business corporation … draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation,” and that that the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.”
Even more revealing, Stevens cites as support a set of corporate governance principles adopted by the prestigious American Law Institute. The Principles were the product of compromise, both asking corporations to look after shareholder interests and allowing them to act with an eye toward “ethical” and “humanitarian” purposes. But Stevens quoted only the language embodying shareholder primacy: “A corporation … should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain.”
Opponents of corporate personhood are following Stevens into the shareholder rights trap. Common Cause now has a “featured campaign” for “strengthening shareholder rights.” The Brennan Center for Justice is supporting a “shareholder protection act” and calls shareholders “the actual owners” of corporations. Professor Jamie Raskin of American University, one of the smartest and most energetic academic opponents of Citizens United, says that corporations should not be spending in elections because, “after all, it’s [shareholders’] money.” This is all shareholder primacy language brought to bear in fighting Citizens United.
Wall Street loves talk of shareholder rights. Sure, many of us are shareholders through our retirement accounts and the like. But widows and orphans are still the minority; most stock held in American businesses is owned by the very wealthy. (The richest 5 percent of Americans own more than two-thirds of all stock assets. The bottom 40 percent—125 million working-class people—essentially own nothing in terms of stock.) So when opponents of Citizens United focus on shareholder rights, they are singing Wall Street’s tune.
I wish this shareholder-protective rhetoric was just that, but it’s not. Corporate personhood opponents urge, as an intermediate measure short of a constitutional amendment, that corporations be required to seek shareholder approval before spending corporate money on political campaigns. I myself have been tempted by this position, mostly because such a rule would help ensure that executives do not spend corporate monies on issues and candidates opposing company interests. But that benefit is probably marginal, and comes at the risk of validating corporate involvement in the political process in furtherance of shareholder value and to the detriment of other stakeholders. Corporations could speak out in favor of Wall Street but not employees? That would be worse, not better.
The efforts of anti-personhood activists are not only in tension with stakeholder theory on the conceptual level. In the political arena, too, a tension exists because the energy for reform is a finite resource. I believe that, in this moment, there is an opening to question the very framework of how we view corporations and their social obligations. But we won’t get anywhere on that front if the progressive left wastes its energy fighting for a constitutional amendment that is unlikely to succeed and would do more harm than good if it did.
To cure the ills of Citizens United, we should stop fighting corporate personhood. Instead, let’s fight to make corporations more like people.
Kent Greenfield is professor of law and Dean’s Research Scholar at Boston College Law School. Reprinted from Washington Monthly (January/February 2015), an independent political magazine willing to take on sacred cows—liberal and conservative.
---
==
==