Reclaim Democracy!

Appreciating Recent Victories for Citizens and Consumers Against Corporations

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May 2024

Amid much horrific news this month, some major victories for citizens over corporate power have received little attention. Among the recent victories delivered by federal civil service agencies:

Non-compete Agreements
Lina Khan, President Biden’s selection to chair the Federal Trade Commission (FTC), has emerged as a civil service superhero, and it’s been delightful to follow the reactions of corporate mouthpieces to Khan fulfilling her role as an advocate for the public. In April, the FTC voted to ban non-competition contracts (“non-competes”) that corporations often impose on employees that prevent them from leaving to work for any competitor. 

While such agreements may be legitimate in rare instances involving intellectual property issues, the practice has been wildly abused and applied to positions like fast-food service, where no legitimate purpose is served. Some 30 million U.S. workers today are trapped by such involuntary “contracts,” leading to:

  • Limiting entrepreneurship (workers often are banned from starting a business that overlaps in any way with their previous job).
  • Suppressing wages. If workers are not free to work where they choose, corporations gain power, including power over compensation. “Non-competes” restrict workers’ ability to find new employment opportunities within a given field.
  • “Job Lock.” Noncompete clauses make it tougher for workers to advance their careers by limiting job mobility within their field. 

The Biden Administration claims the non-compete ban will raise wages by $400 billion over the next decade once the ban takes effect in August. Corporate advocates like the U.S. Chamber of Commerce have filed lawsuits to try stopping the rule from taking effect.

Credit Card Fees

In March, the Consumer Financial Protection Bureau (CFPB) finalized a rule limiting the penalty credit card corporations may impose for a single late payment to $8 (current averaging $32, exclusive of interest fees). It will take effect by late May, barring any successful legal challenge. 

The CFPB says late fees cost U.S. residents more than $14 billion a year and that 45 million Americans charged late fees will see an average savings of $220 a year.

The fee cap is part of the Biden administration’s campaign against “junk fees,” including air travel, event tickets and airline fees, which the FTC defines as “unnecessary, unavoidable or surprise charges that inflate costs while adding little to no value.“ The credit card fee cap also is under legal attack from financial corporations and their lobbying groups.

Blocking Anti-competitive Mergers

The FTC is joined by the Department of Justice in increasing vigilance over corporate mergers and acquisitions that would harm competition, small businesses, and consumers. A lawsuit by the DOJ succeeded in stopping the merger of JetBlue and Spirit Airlines, which would have reduced or eliminated competition on many travel routes.

Most recently (January 2024), the FTC sued to block a major hospital acquisition by Novant Health Corporation. The FTC said the merger would raise healthcare costs for patients and could likely harm quality of care.

While these wins have not fundamentally altered the power imbalance between citizens and corporations, they represent a sharp reversal from the last several presidential administrations. Let’s thank and encourage the people responsible for these actions while continuing to push for the  longer-term structural changes we’re working to achieve.

Key 2024 Supreme Court Cases — environment and democracy: Loper Bright Enterprises v. Raimondo

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Will a majority of Justices overturn a 40-year-old precedent to grab more power for itself and for corporations?

March 2024

On the surface Loper Bright is a dispute about fishing corporations challenging the power of the National Marine Fisheries Service to require them to pay the cost of observers who monitor companies’ compliance with federal fishery rules. But this seemingly narrow legal question actually could yield widely destructive consequences because the justices have opted to re-examine a 40-year-old precedent the court established in Chevron Inc. v. Natural Resources Defense Council. 

That precedent, widely known as the Chevron Doctrine, says state courts should defer to federal agencies’ interpretation of a law when the language is ambiguous or leaves discretion regarding implementation.

Chevron effectively says the civil servants with expertise in their field and who are accountable to an elected president should decide how to implement Congress’ mandates, rather than judges — a principle clearly rejected by the most regressive justices. Reversing this precedent would do enormous harm, stripping many federal agencies charged with protecting civil rights, consumers, and public health and safety; limiting pollution and environmental harm; and much more. 

Stripping the Environmental Protection Agency of its authority to limit carbon emissions is one obvious industry target. 

Dozens of corporate and far-right advocacy groups are pushing the court to overturn Chevron and anoint federal courts as the arbiters of which federal regulations are proper. Such a ruling would invite floods of lawsuits challenging rules that limit or regulate corporate activities. Workplace safety rules, product safety regulations, and limiting emissions to abate the climate crisis are among the obvious targets.

Reversing Chevron also would undermine other core Unitarian Universalist values by enabling state politicians to challenge crucial federal civil rights and voting protections.

Congress is ill-equipped to manage the day-to-day administration of legislation it passes and necessarily must empower federal agencies to turn its broad directives into specific actions based on good-faith interpretations. Those actions remain subject to judicial oversight if any agency truly exceeds its authority. Accordingly, SCOTUS should uphold theChevron precedent and sustain the ability of civil servants to do their jobs effectively.

SCOTUS however, appears likely to at least weaken, if not overturn, the Chevron Principle, based on reports from oral argument.

Origin and Status: The case came on a writ of certiorari to the U.S. Court of Appeals for the District of Columbia Circuit. In October, the court also agreed to hear a second challenge to the Chevron Doctrine, Relentless v. Department of Commerce, which will be argued simultaneously with Loper v. Raimondo. 

Related: Edison Electric Institute v. Federal Energy Regulatory Commission (FERC):  Other corporations also are pushing the Court to overrule Chevron and grant them more power. The Edison Electric Institute and the utility NorthWestern Energy seek to have a lower court ruling in favor of the U.S. Federal Energy Regulatory Commission overturned. They object to approval of a FERC finding that a Montana solar and battery storage facility qualifies for incentives that encourage small renewable energy producers to upload power to the grid. No action has been taken by the Court as of April 2024.

Citizen Lawmaking Is Under Attack as Regressive Lawmakers Work to Suppress Democracy

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Citizen lawmaking via state ballot initiatives is overwhelmingly popular with people across political spectra and has no inherent bias, but in the wake of citizens using initiatives to counter Republican extremism in recent years, GOP legislators have unleashed a wave of bills to obstruct the process. These tactics fall into three categories: keeping initiatives from reaching the ballot, impeding passage, and altering voters’ intent post-passage. 

Every Western state in the Lower 48 except New Mexico enables citizens to make laws directly, a vital check on legislators who refuse to act on pressing issues. As a result, Montanans’ water is protected from cyanide leach mining, thousands of Idahoans can access needed health care via Medicaid expansion, and documented immigrants in Arizona gained in-state tuition rates at public colleges.

The surge in Republican attacks seems driven by alarm over pro-choice voters winning in all six states where abortion ballot questions appeared following the U.S. Supreme Court’s regressive majority overturning Roe v Wade in 2022, including GOP strongholds like Montana, Kansas, and Kentucky. In November of 2024, Arizona and Florida voters will likely vote on whether to overturn abortion bans imposed by legislators despite overwhelming support for bodily autonomy among residents (e.g. sixty-four percent of Floridians say abortion procedure should be legal in most or all cases). Up to nine states may have abortion on the ballot this fall.

But direct democracy has no partisan bias. Empowering voters sometimes favors conservative causes. In Colorado, for example, 65 percent of voters approved a 2022 initiative cutting state income taxes and passed another measure saying only U.S. citizens may vote in the state.

Looking beyond policy outcomes, suppressing ballot initiatives invites turmoil. The process serves as a safety valve, giving citizens a constructive option when legislatures defy constituents. This is especially valuable when ousting incumbents in “safe seats” is nearly impossible due to gerrymandered districts. 

Much of the current GOP policy agenda is deeply unpopular, even among their voters, but rather than listening to constituents or moderating policies, stifling constituents has become the norm (in more ways than one). Montana Senate Bill 93, passed last year, would have forced citizen groups to pay a $3,700 filing fee just to start a petition drive (a Montana court struck down that portion of the law in early 2024) while giving state officials the power to reject a proposed initiative if they deemed it similar to any that failed within the previous four years. 

After defeating an initiative to cap homeowner taxes in the previous election, powerful corporate lobbying groups like the Montana Chamber of Commerce and Association of Realtors backed the proposed barriers to direct democracy. Democratic State Representative Kelly Kortum calls the bill, “An attempt to strip Montanans of the ability to make laws themselves.”

In Idaho, the GOP introduced a resolution to amend the state constitution to accomplish voter suppression the state supreme court struck down just two years ago. It would require initiative backers to gather in-person signatures from six percent of voters in all of Idaho’s 35 districts–doubling the current 18-district requirement and requiring the assignment of signature gatherers to small towns nine hours from the state capital of Boise. Luke Mayville of Reclaim Idaho, the grassroots organization behind the 2018 initiative that expanded Medicaid coverage, says such restrictions “would render citizen initiatives impossible.”

While that bill appears dead for the current legislative session, several other states are pushing related tactics that impede signature-gathering and give outsized power to rural areas.

Even without an impossibly short window, extreme signature-dispersal schemes proposed in Idaho and other states would grant corporations the power to prevent voters from ever seeing a measure disfavored by big business. That threat exists thanks to the U.S. Supreme Court creating a First Amendment “right” for corporations to spend unlimited sums influencing ballot questions, in 1978 (First National Bank of Boston v Bellotti).

In Nevada, NV Energy spent $63 million to thwart an initiative that aimed to end its electric monopoly. With extreme signature-gathering requirements, corporations could prevent the public debate ballot questions provoke by coopting or propagandizing voters in a single district (to deter residents from endorsing an initiative). This would be easily accomplished in rural districts where gaining endorsements from six percent of voters already is burdensome. 

Direct democracy in the West arose largely through citizens fighting the corruption of state legislatures by mining, railroad, and timber interests — especially in Montana). South Dakota led the way in 1898, followed rapidly by Oregon, Montana, and now 24 total states. So laws that would enable corporations to stifle citizen initiatives before they reach the ballot completely betray that original intent.

The merit of citizen lawmaking is one point of broad agreement among citizens of differing party loyalties and ideologies. This vital tool is under increasing attack, and it’s up to all of us to defend our right to self-governance from politicians who seek to elevate their power at the expense of their constituents.

Jeff Milchen is a board member of Reclaim Democracy!

Editor’s note: we’ve been warning of the escalating attacks on citizen lawmaking for years and are pleased to see have been opened as the sabotage attempts became more glaring in 2023. Our previous reporting has appeared in Jacobin and Governing, among others.

Reclaim Democracy! Commends the Introduction of Federal Voter Protection Bills

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September 2023

The Freedom to Vote Act (FTVA) and the John Lewis Voting Rights Advancement Act (VRAA) are imperative bills to pass through Congress in light of ongoing attempts to pass restrictive, anti-voter bills. At least 14 state legislatures enacted 17 restrictive laws during the first nine months of 2023 erecting barriers for eligible voters and disproportionately impacting voters of color, youth, and those with limited mobility. State legislatures continue impeding our ability to vote and have our votes count equally through gerrymandering, voter roll purges, and more than 50 other tactics Reclaim Democracy! has identified across the states. We call on Congress and President Biden to do everything in their power to ensure passage of both the FTVA and VRAA.

Along with protecting citizens from being denied their vote, the FTVA includes key actions to shrink the influence of big money in politics, guarantees congressional districts provide fair representation for all, and creates national standards to ensure the integrity and security of federal elections.

See summaries from the Brennan Center for Justice for detailed information on both the FTVA and VRAA.

Reclaim Democracy! is among more than 250 allied pro-democracy organizations united via Declaration for American Democracy to advance such voter protection measures.

Finally, we must recognize a hard truth: when our ability to vote depends on politicians who control the levers of power in our state, voting is merely a vulnerable privilege and not a right. Ultimately, we must amend our Constitution to embed an affirmative right to vote and ensure our votes count equally. 

NorthWestern Energy Must Be Made Accountable to Ratepayers

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By Larry Bean

Imagine a world where the law forces customers to buy from a single corporation. Imagine that same law guarantees profits for using expensive, outdated, and risky business practices. Worse yet, imagine this corporation chooses to emit dangerous toxic pollutants while hiding from public scrutiny. You need not imagine this scenario. It’s how NorthWestern Energy conducts business in Montana, and we customers deserve better.

The monopoly corporation is building an expensive, polluting methane-fired power plant along the Yellowstone River in Laurel and has managed to evade any meaningful public input thus far.  That is until April6, when District Judge Michael Moses ordered the construction of the plant be halted. Why? The health and environmental impacts that will surely come if this facility is allowed to operate were not properly considered. The Montana Department of Environmental Quality issued a permit based only on the inadequate data provided by NorthWestern.  

Laurel residents (and Billings residents downwind) will experience carcinogenic air pollution. State agencies tasked to protect our health and air quality have documented that the plant will emit toxic Hazardous Air Pollutants (HAPs) including formaldehyde, propylene, and benzene. 

Folks living within a few miles of the plant will contend with loud engine noise and overbearing industrial lighting all hours of the day and night, with this massive plant dominating what used to be an agricultural area. In fact, the plant’s site is still zoned for agricultural use, but that hasn’t stopped NorthWestern from continuing industrial construction without proper zoning permits.

Not only does the corporation want to keep us in the dark about the environmental impact its plant will have on the Yellowstone Valley, NorthWestern does not want us to know the full amount it will take out of the ratepayers’ pockets. 

NorthWestern already raised our rates last year, and it’s trying to get even more increases approved right now.  Bad business decisions like this expensive plant are part of the reasoning for rate increases.

Thus far, NorthWestern has barreled forward without meaningful public hearings or comment periods. What is the corporation hiding? And why is it building such an expensive, polluting plant when other responsible energy companies in our region are investing in reliable energy sources that are cleaner, safer, and more affordable? It’s because of a rigged system that the monopoly corporation is abusing. 

The technical term is “Return on Equity” or ROE. The state guarantees NorthWestern an 11 percent profit for building, operating, and maintaining power plants, creating incentives contrary to the interest of its captive customers.

Just think, the cost of the plant (estimated at a third of a billion dollars), maintenance and operation of very complicated internal combustion engines, and an increasingly expensive fuel for which this plant will compete and help to make prices even higher, all paid for by you and me, plus a guaranteed 11 percent profit.  

NorthWestern has brazenly abused its monopoly position, and this expensive methane-fired plant that will pollute the entire Yellowstone River valley is just the latest chapter. 

Because NorthWestern hasn’t given the community or any of its customers an opportunity to provide input, it’s important for us to be proactive in letting the utility hear directly from us. You can add your name to this letter to NorthWestern Energy executives and its board of directors, demanding the corporation give residents and customers a say in decisions about this plant.

Larry Bean is a Billings-based photographer, retired landscape architect, and a member of
Northern Plains Resource Council, a conservation and family agriculture organization.

Follow-up: USPS Changes Course, Plans Major Investment in Electric Delivery Vehicles

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In January, we blasted the plan by U.S. Postmaster Louis DeJoy to purchase tens of thousands of gas-guzzling delivery trucks for roles perfectly suited to electric vehicles and urged people to speak out in opposition to the disastrous deal, according to a the A-1 Auto Transport cost estimator website in a blog post. Now, we’re excited to learn the USPS changed course and announced plans to purchase at least 66,000 electric delivery vehicles–more than half the 106,000 delivery vehicles it plans to acquire over the next five years.

The USPS said about one-third of the investment for fleet electrification comes from the Inflation Reduction Act. The plan calls for purchasing 60,000 trucks from the military contractor Oshkosh Corporation, of which 45,000 will be electric. USPS will buy 46,000 new vehicles from mainstream manufacturers, of which 21,000 will be electric.

Along with grassroots opposition, sixteen states filed suit in April to halt the purchase of gas-powered trucks, joining many environmental groups calling for investing in electric vehicles instead.

We thank all the people and organizations who rallied opposition to the earlier plan to entrench an environmentally destructive delivery fleet for a generation. It’s a victory worth celebrating as we close the year.

See the original post from January here.