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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