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Archives for August 2005

Judicial Activism for Corporations Is Subverting Democracy

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By Jeff Milchen 
Published August 25, 2005

After battling city officials all the way to the Utah Supreme Court over whether they had collected enough petition signatures to force a referendum, it seems the residents of Sandy, Utah will become the latest in a growing number of communities to decide the fate of controversial “big box” stores at the ballot box.

In a state where growth control often is equated with communism, the court came down firmly on the side of citizens seeking to prevent Sandy’s City Council from rezoning industrial land in order to allow a new Wal-Mart and Home Depot. The court’s 5-0 ruling in July said, “The exercise of the people’s referendum right is of such importance that it properly overrides individual [corporation’s] economic interests.” But after winning their initial battle, Sandy residents may find the court’s Jeffersonian words hollow.After battling city officials all the way to the Utah Supreme Court over whether they had collected enough petition signatures to force a referendum, it seems the residents of Sandy, Utah will become the latest in a growing number of communities to decide the fate of controversial “big box” stores at the ballot box.

Why? The U.S. Supreme Court has ruled corporations have a “right” to spend unlimited corporate funds to influence ballot questions. As citizens in dozens of communities have learned, that power enables giant corporations to turn ballot measures — theoretically the purest form of democracy — into yet another sphere of corporate dominance.

In May, Wal-Mart spent almost $400,000 in Flagstaff, AZ to run its own ballot initiative and reverse a size cap on big box stores previously passed by the city council. The company outspent the size cap’s defenders three to one — a whopping $44 for each vote it received — en route to winning 51% of the vote.

Wal-Mart’s ad campaigns painted the size cap as a union and governmental attack on citizens’ rights, including an ad that equated opponents with Nazi book-burners. A backlash resulted, but came after most of mail-in ballots were cast.

Becky Daggett of Friends of Flagstaff’s Future, which supported efforts to uphold the size cap, said the corporate funding “drove what should have been a community debate and determined the outcome of a local decision.”

The story isn’t unique — just two months earlier in Bennington, VT, Wal-Mart had steamrolled citizens who tried to defend the town’s big-box size cap.

This is hardly what the authors of our Constitution had in mind.

When American colonists declared independence from England, they also freed themselves from control by corporations like the East India Company that extracted colonists’ wealth and dominated trade. The colonial experience bred fear of concentrated power in the hands of corporations as well as despots, leading states to limit corporations’ size, lifespan, and range of activity. In most states, corporations were forbidden to spend any money to influence elections or law-making.

Corporations escaped many of those barriers during the 1800s, aided by the distraction and growth opportunities of the Civil War. By the end of the century, the Supreme Court’s judicial activism had invented a concept that would have shocked American revolutionaries.

Ignoring the fact that corporations’ are unmentioned in our Constitution, the Court interpreted the 14th Amendment’s guarantee of “due process of law” — written to protect the rights of freed slaves — to make corporations legal “persons.”

It took almost another century, however, before another episode of Supreme Court activism effectively created a corporate “right” to dominate ballot initiatives and referenda (initiatives are questions placed on the ballot via signature gathering among the general public, referenda are questions on which the government chooses to allow a popular vote).

The man who went on to write that key ruling gave fair warning of his bias. In 1971, he wrote a famous memo to a friend at the U.S. Chamber of Commerce, urging the Chamber to aggressively expand big business’ power, noting, “the judiciary may be the most important instrument for social, economic and political change.”

One month later President Nixon appointed the memo’s author, Lewis Powell, to the Supreme Court, where he went on in 1978 to make his political opinion the law of the land, writing the (5-4) majority opinion in First National Bank of Boston v. Bellottithat created a new class of corporate political “speech”

Notably, such decisions on expansion of corporate political power don’t necessarily follow left-right political divides. Indeed, Chief Justice Rehnquist has repeatedly attacked the invention of corporate constitutional rights. In his dissenting opinion fromBellotti, he warned of “special dangers in the political sphere” that result from granting political power to corporations (his full dissent is well worth a read).

Despite Rehnquist’s objections, corporate executives have since wielded vastly expanded power over communities around the country. Often, the mere threat of running a costly ballot initiative intimidates local governments into weakening controls over corporate activities.

So when the citizens of Sandy go the voting booth this fall, they’ll battle against a company that spent less than sixty seconds worth of corporate revenue to defeat a skilled and well-organized citizen effort in Flagstaff. Whether or not we’re concerned by the proliferation of big box stores, we all should be alarmed by this perversion of democracy.

The reasons that drove our country’s founders to keep business creations subordinate to democracy are even more compelling today. Until we return corporate activity to “strictly business” and revoke their ill-gotten political power, the power of a Wal-Mart typically will trump even the most committed citizen efforts.

Community-level fights will continue and I wish people of Sandy the best, but the crucial battle — one to determine whether citizens or corporations will control the future of our communities and country — must take place nationwide.

Jeff Milchen formerly directed Reclaim Democracy! Our resource library on corporations and ballot questions has much more on this topic. This article is updated from a piece the author first wrote for Writers on the Range, a service of High Country News.

Beyond the Voting Rights Act: Why We Need a Constitutional Right to Vote

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By Jeff Milchen

The original version of this commentary was published in several periodicals in 2001 and 2002. Sadly, this issue has proven “evergreeen,” as discussed in this April 2020 commentary: Dying to Vote: A Warning for November

As thousands of civil rights advocates celebrated the 40th anniversary of the Voting Rights Act (VRA) in Atlanta last weekend, most media coverage conveyed the Act’s importance in protecting the political rights of many Americans. Yet many of those same stories helped perpetuate a dangerous illusion by asserting the 15th Amendment secured a right to vote for Black citizens.

The Supreme Court doesn’t see it that way.

In its 2000 ruling, Alexander v Mineta, the Court decided the 600,000 or so (mostly Black) residents of Washington D.C. have no legal recourse for their complete lack of voting representation in Congress (they have one “representative” in the House who can speak, but cannot vote).

The Court affirmed the district court’s interpretation that our Constitution “does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” And state legislatures wield the power to decide who is “qualified.”

As a result, voting is not a right, but a privilege granted or withheld at the discretion of local and state governments.

True, our Constitution explicitly prohibits discrimination in granting the franchise based on a person’s race, sex, or (adult) age via the 15th, 19th, and 26th Amendments. The 24th Amendment also bars disenfranchisement via poll taxes. But those protections are like a house with no foundation. States and other governments can and do disenfranchise individuals and groups of citizens, and so long as they do it without provable bias, it’s entirely legal.

Washington, D.C. residents are not the only victims. Without an affirmative right to vote, Americans repeatedly are disenfranchised or otherwise deprived of their political voice and denied a legal basis for retrieving it.

Just months after the Alexander decision, a 5-4 Court majority in Bush v. Gore denied Florida citizens a right to ensure their votes were counted, saying “the individual citizen has no federal constitutional right to vote [for presidential electors].” Tens of thousands of Floridians who were purged wrongly from the voting rolls were denied recourse against Republican state officials who, under the guise of preventing felons from voting, disenfranchised them.

The Bush v. Gore ruling also meant Florida ‘s legislators could have followed through on their threats to simply disregarded citizens’ votes and choose electors themselves.

Our lack of a right to vote also weakens legal arguments for challenging anti-democratic structures that routinely prevent citizens in several states from enjoying a choice other than Democrats or Republicans at the polls. Georgia, for example, has institutionalized a two-party duopoly, devoid of outside competition, by requiring independent or “third party” candidates for U.S. Representative to gather signatures from 5% of registered voters, a feat not accomplished since before the VRA.

Worse, Georgia and Indiana recently passed laws requiring government photo identification to vote, despite lacking any evidence that people are impersonating others at the voting booth. Georgia’s law must first be approved by the Department of Justice under a provision of the VRA requiring jurisdictions “with a history of discrimination” to gain approval from the DOJ before changing voting laws.

If these laws take effect, a disproportionate number of minority, poor and elderly people who lack ID will be dissuaded from voting. This is exactly the kind of discriminatory scheme the VRA was created to stop, but so long as voting is a state-granted privilege rather than a right, courts are likely to let the law stand.

While we speak of “spreading democracy” globally, the U.S. is one of just 11 nations among 120 or so constitutional democracies that fail to guarantee a right to vote in their constitutions.

Although many constitutional scholars reject the Supreme Court’s reasoning in denying such a right, blaming the justices will not solve our problem. It’s time we caught up with our own rhetoric by amending our Constitution to transform a right to vote from myth to reality.

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