Tuesday, December 3, 2013


I think the Supreme Court’s decision in Citizens United v. Federal Election Commission was among the worst and most destructive in American legal history.

The Court’s finding that the First Amendment protections of free speech should be extended to paid speech defies logic, reality, and the intent of the Framers.  Their idea, I’ve always believed, was that the function of free speech was to counter-balance public discourse against the inherent advantages of the loud voices of wealth and class.

The idea that the freedom to “shout ‘Fire!’ in a crowded theater” can be legally limited, but the freedom to shout down less well-funded voices in political debate cannot is nonsense; legal nonsense; political nonsense.  Or worse.

The freedom of speech being defended in the Constitution is for individual voices, contesting fairly, openly, and responsibly.  Citizen’s United turns those ideals upside-down, giving further advantage to the already-advantaged rich and powerful to bend public conversation to their interest.  The “free speech” being paid for under the rules of this ruling is all political, (and presently hyper-partisan, and under license of the Court,  it is secret and therefore detached from responsibility. This is the second way in which this wretched and heretical decision corporatizes “free speech.”

Now, Roberts, Scalia, Alito, Thomas et al are considering extending the First Amendment’s protection of religious freedom to corporations, to enable some corporate  claims that scripture requires them to cheapen the health insurance provided their employees by failing to cover abortion.

Again, this reverses the letter and the logic of the First Amendment’s absolute that “Congress shall make no law” regarding religion.  To allow insertion of any particular religious scruple into a legal contract is exactly what the Framers meant to forbid.

And besides, corporations do not have religious beliefs.  The same nullification of personhood which is at the heart of the incorporation idea makes such a relationship with any God impossible. 

The right to speak freely and the right to follow any religious dictate or none, pertain to homo sapiens, while incorporation is about removing “the human element,” and limiting the concept that is at the heart of both religious and expressive freedom: personal responsibility.

Here’s what investopedia.com has to say:

The most important aspect of a corporation is limited liability. That is, shareholders have the right to participate in the profits, through dividends and/or the appreciation of stock, but are not held personally liable for the company's debts.”

In law, shareholders are also absolved of personal responsibility for their corporation’s crimes, and recent practice suggests, that immunity extends to corporate executives and directors.

Who but this Court of corporatist clowns would contend that human rights can be extended to those held to no human responsibilities?

All of which leads us to two recent cases of corporate crime without the prospect of punishment.

Case 1:  The Corporations: Nissan and General Motors.  The Crime: Manslaughter.

A powerful investigative report published by the Associated Press and correspondent Adriana Gomez Licon makes a strong case for prosecutors in Mexico (and any number of Latin American countries) to charge the brass at General Motors and Nissan with legal responsibility for thousands of preventable deaths in Latin America.

Gomez Licon’s story begins:  In Mexico’s booming auto industry, the cars rolling off assembly lines may look identical, but how safe they are depends on where they’re headed.

“Vehicles destined to stay in Mexico or go south to the rest of Latin America carry a code signifying there’s no need for antilock braking systems, electronic stability control, or more than two air bags, if any, in its basic models.”

Of course, those same Mexican factories are sending cars carrying the same marque and model to dealers in the US, Canada and Western Europe.  But, the AP reported, those vehicles “must meet stringent safety laws, including as many as six to 10 air bags, and stability controls that compensate for slippery roads and other road dangers, say engineers who have worked in Mexico-based auto factories.”

You might think that there is economic logic here.  After all, the peoples of Mexico and the rest of the Latin American car market are so much poorer than those in the US and other “first world” countries, that Nissan and GM are forced to cut safety “frills” to make their products more affordable.

This is the same logic, applied by the pack of right-wing morons, predictably on both sides of the aisle in Congress, who are fighting to give their poorer constituents the right to imperil their families health and savings by getting less for their money, by buying “cheap,” high-deductible/ low-service health insurance policies.

Obamacare meant to upgrade the insurance market by banning these viciously inefficient “choices,” which happen to produce very limited benefits to their buyers, but very large profits to the villains in the health insurance industry who dreamed them up.

Except here, the AP showed that stripping cars of critical safety features confers little or no economic advantage to the Latino consumer. 

For example,” AP reported, “basic versions of Mexico’s second most popular car, the Nissan Versa, made in central Aguascalientes, come with two air bags, but without electronic stability control systems, which use sensors to activate brakes when a car loses control.

“The sticker price of the newer generation of the sedan comes to $16,000,” the AP report continued. ”The U.S. version of the same car has six air bags in the front, on the sides and mounted in the roof, in addition to an electronic stability control system. That sticker price is about $14,000.

“Similarly, the basic version of the Chevrolet Aveo, which has been revamped and renamed Sonic, sells for about $14,000 in the U.S. and comes with 10 air bags, antilock brakes and traction control. Its Mexican equivalent, the country’s top-selling car, doesn’t have any of those protections and costs only $400 less.”

“Nissan Mexicana spokesman Herman Morfin,” told AP retail price comparisons of cars bearing the same brand and general equipment, except for safety items is invalid, “’Because there are many choices of specifications and equipment, specific marketing strategies by country, in addition to the tax difference among countries, states and cities, also including transportation and delivery costs.’”

In addition to the less-safe version of the Versa, Nissan has another very popular car made in Mexico for Latin American distribution: the cheaper $10,000 Tsuru, which AP said, “is so outdated it has only lap seat belts in the back and some versions have no air bags at all. The car is not sold in the U.S. or Europe.

At a recent Latin NCAP crash test presentation, the Tsuru's driver's door ripped off upon impact at only 37 mph. Its roof collapsed and the steering wheel slammed against the crash test dummy's chest. The Tsuru scored zero stars out of a possible five.”

Nissan declined AP’s request for comment on the crash test results.

Alejandro Furas, technical director for NCAP, the Global New Car Assessment Program, which conducts crash tests around the world told the AP’s Gomez Licon, “We [Latin Americans] are paying for cars that are far more expensive and far less safe. Something is very wrong.”

Here’s how wrong.  AP reported, “In 2011, nearly 5,000 drivers and passengers in Mexico died in accidents, a 58 percent increase since 2001, according to the latest available data from the country’s transportation department. Over the same decade, the U.S. reduced the number of auto-related fatalities by 40 percent.”

Many of those American lives were saved, experts say, by the very safety features cut from the cars made to be sold in Latin America. In their absence, the roads south of our border have become terribly dangerous.  World Health Organization figures show that Argentina, which has recently upgraded its auto safety standards, has almost 3 times as many fatalities per motor vehicle as the United States, and that is by far the best record in all Latin America. Again, according to the WHO,

in Mexico, vehicles are more than 5 times as likely to produce a fatality as in the US, while in Central America, vehicles in Panama kill people 7 times as often as here, in Guatemala 8 times, Honduras 9 times, and in Nicaragua roughly 17 times as often as in the US.  Move further south and the pattern is the same.  Brazil’s rate of death per  vehicle is almost 5 times the US’s, 71 to 15 out of every 100,000 vehicles; while in Venezuela the deadly disproportion is 10:1, in Ecuador 12:1, in Colombia more than 13:1, and in Peru almost 25:1. Of every thousand cars on the roads of Peru, roughly 4 will be involved in a traffic fatality.

If a used car dealer knowingly sold an unsafe vehicle that killed someone, he might be criminally charged, but when corporate cars makers like GM and Nissan offer Latin Americans products they have re-engineered so that they are less likely to protect the lives of their customers, it’s just another day at the office. 

Case 2: The Corporation: Chevron.  The Crime: Environmental Destruction

Lives and life expectancies in the Ecuadorian Amazon really are too different for meaningful statistical comparison to the United States, so reports of cancer clusters and other notable outbreaks of disease or ill health in Oriente Province’s oil patch probably can’t be treated legally as manslaughter.  But there are both laws and industrial standards meant to protect environments (if not the people who live in them). 

I’ve seen the damage done to Ecuador’s Oriente Province and the people living what was once a unique and pristine environment. It is both wanton and preventable.  No one questions that it was caused by decisions by executives at Texaco (since swallowed by Chevron) to breach long-accepted American legal and professional standards for human safety and environmental protection.   

As a corporate entity, Chevron has a pile of weasely reasons to duck responsibility: the actual damage (but not the corporate decisions that caused it) was done not by Chevron or  Texaco, but by Texaco’s now-folded Ecuadorian subsidiary Texpet, and its Ecuadorian government partner, the hapless national oil company Petroecuador.  And besides, a legal contract between an Ecuadorian government and Texaco allowed the company to buy up its culpability at less than half a penny on the dollar (the latest Ecuadorian court decisions put the damage at $9.1 billion; in 1998, Texaco agreed to a final payoff of $40 million for all clean-up costs.)

I went to Oriente in 1998, for ABC News Nightline, to look at what lay behind the first legal action against Texaco in support of native tribes from the affected region, I can tell you, that slice of the Amazon Basin is the most apocalyptic landscape I’ve ever seen.

From ground level, the area drained by the Rio Coco looks and feels like a painting by Henri Rousseau, a jungle of swelling, sweating fecundity, “the beginning of the world” in shades of brilliant yellows and greens.  But from the air, in a helicopter, what you see is a truly Hellish vision of “the end of the world” that could have been painted by Hieronymus Bosch. 

From 1000 feet, you see a sprawl of dense grey smoke plumes from deforestation fires, set to clear land for farms, roads and pipelines, mostly to feed and service the local oil industry.  Interspersed among the smoke trails are up-thrusting vermillion flares of unwanted natural gas being “burned off” by the same folks who are extracting and pipelining the oil from Amazonia over the Andes to the world.  Between the smoke and the fire are gleaming mirrors of waste oil, reflecting the tropical sunshine to which they have been left untreated and uncovered.  Many of these waste pools are also unlined, and are leaking toxic chemicals into the ground water and nearby streams.

All of this slaps you in the eyeballs like some 400 square mile video-screen display of despoliation. 

How dare Chevron not take human responsibility for this unmetaphoric Hades?  And why do they fight paying anything to the people, like those who showed me, by punching sticks or rods into the seeping soil, the track of wastes from an unprotected pond migrating sub-surface to a river which had once been a source of drinking water and cooling recreation?  Now the stream poisons animals which drink from it and causes skin disease among people whose clothes are washed in the water.

So far, the only thing the victims of this massive irresponsibility have gotten from Chevron is the stiff-arm.

Corporations are inhuman because they are not human.  They and their shareholders’ benefits live in a world legally walled off from humanitarian concerns, much less responsibilities.

The Chevron strategy to justify the stiff-arm is to attack the American lawyer Steven Donziger, who brought the suit, and to muscle the people and firms who testified against them in the Ecuadorian trial.  A co-defendant in Chevron’s suits, the Washington PR and lobbying firm of Patton, Boggs, has estimated the oil giant is burning through $250 million a year pressing its case.  As Donziger’s defense lawyer John W. Keker put it to the Washington Post’s Steven Mufson,


“This is an extraordinary case, which has degenerated into a Dickensian farce. Through scorched-earth litigation, executed by its army of hundreds of lawyers, Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.”


All this, of course, is being done to protect the company’s “good name” and its shareholders’ profits.

This is not to say Chevron doesn’t have a case.  It does appear that the Ecuadorian natives’ lead American lawyer Steven Donziger breached some legal ethics himself, admittedly coaching and (though he denies it) maybe even buying witnesses and judges, as well as exaggerating his claims. But as Robert V. Percival, the Director of the environmental law program at the University of Maryland Francis King Carey School of Law wrote in a letter to the Post:

the judgment against Chevron is not about Donziger, and the company’s legal attack on him (and a cheerleading op-ed by 2 former Federal lawyers from the Reagan and GHW Bush Administrations printed in the Post) “ignored that the oil company defendant is the party responsible for [what happened] in Ecuador.”  

In making its case, Chevron has itself been giving money to, and helping to relocate from Ecuador to the United States, their key witness to “bribery.” The judge alleged to have been bribed denies he agreed to a payoff, and there’s no evidence he ever got any money.  The only one who clearly did take money from Donziger is the witness who Chevron is rewarding for turning against him. Chevron has also reportedly made threats to destroy the experts and firms who helped set a value on the indisputable damage.  Some of them have recanted their testimony in Ecuador, blaming Donziger for their misstatements.

By the time they are done, Chevron will have spent maybe ten, maybe 20, maybe more  times as much to fight the case as Texaco paid to “settle” it.  But that would still save shareholders billions in unpaid damages, even if it re-victimized those already damaged.

Let us restate: the basic charges that the Texaco/Texpet/Petroecuador operation left behind thousands of waste ponds, hundreds of contaminated waterways, and spilled 50% more oil in Oriente than the Exxon Valdez leaked in Alaska, and that farm lands and lives of thousands of Native Ecuadorians have been ruined, remain undeniable, and if you’ve been there, obvious.

What Chevron asserts is that, through Texaco, they have already paid enough, and what it hopes to accomplish is to deter any future legal claims against them, no matter what the corporation does. 

Here the oil guys have gotten some extraordinary help from the American judge who is hearing their case against Donziger, his witnesses and supporters.  Lewis A. Kaplan has allowed Chevron to supersed a tradition First Amendment protection of press freedom by subpoenaing “off the record” outtakes from a video documentary in which Donziger indiscreetly overblows his own horn, and to pierce attorney-client protections to access documents, emails and other Danziger communications. Finally, Judge Kaplan issued what WaPo’s Mufson called “a worldwide injunction against enforcement of the Ecuador judgment.” 

Had this held up, Judge Kaplan would have been the stuff behind the stiff-arm.  Fortunately, it didn’t take long for the Federal Court of Appeals to remind Kaplan he had exceeded his legal mandate.  His authority does not extend beyond America’s borders, and so his injunction was junked.  But so far, although it reversed his misjudgment, the Appeals Court has denied defense requests that it boot Kaplan from the case.   

Another contaminant in this legal waste pool is The Burford Group, a toxic clot of corporate “investors” who bet $4 million of financial support for Donziger’s near-bankrupt operation, in exchange for a 5.5% cut of his expected $600 million share of the winnings.  This would have given Burford a profit of more than $7 for every buck invested. 

And here’s something interesting: sometime after Chevron’s hauled Donziger et al into Judge Kaplan’s playpen, not only did Burford and its lawyer Joseph Kohn turn on Donziger, denouncing him as an unethical liar, they found someone to buy out their $4 million stake.

Might that “risky” purchase have been an investment against future returns from Chevron’s “favors bank?”

As things stand now, I’d guess the Burford share’s buyer and Donziger’s chances of becoming multi-millionaires are lower than the lawyer’s chances of being disbarred.  And the chances of the poor Ecuadorians getting anything humane out of Chevron are somewhere between slim and none.  That would probably be against Chevron’s religion.  If the concept of corporate religion weren’t a perfect oxymoron.

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