Reclaim Democracy!

Corporate Power Over Ballot Questions: Archive of Older Cases

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This page is an archive of older cases of corporate ballot initiative abuse. See our main ballot initiative page here for current cases, background information, references to key legal decisions and more.

In California: 

  • Target Corporation succeeded in overturning a size cap in Davis at the ballot box in 2006 and Long Beach in 2007.
  • In 2005, two giant pharmaceutical companies committed $12 million to run a California ballot initiative on prescription drug pricing at the state level. Donations to Schwarzenegger’s California Recovery Team, the funding arm of his package of ballot initiatives, include $1 million from developer Alex Spanos, along with investments from Safeway Inc., E-Bay Inc. and Bank of America. Also, Wal-Mart Stores Inc., Cendant Corp., Citigroup Inc. and Target Inc. each gave $100,000 to Citizens to Save California, a political action committee promoting the governor’s agenda. Their bid failed, but again at enormous cost to those who defeated it.
  • In 2004, a corporate consortium succeeded in passing Proposition 64 to rescind key elements of California ‘s Unfair Business Practices Act (see pre-election story + background links or a post-election analysis by one of the law’s defenders). The law, previously was one of the nation’s strongest tools for environmental and consumer protection, was emasculated in the name of stopping “frivolous lawsuits.” This was the law used by Marc Kasky to sue Nike in the Nike v. Kasky case (we filed an amicus brief (pdf) at the U.S. Supreme Court challenging Nike’s claim to a “right to lie” under the 1st Amendment).
  • Humboldt County, CA: In 2006, the Humboldt Coalition for Community Rights successfully drove passage of a ballot initiative to ban any non-local corporation from contributing to any candidate campaign, referendum or recall in county elections. Read a brief summary. HCCR won 55% of the vote, but was later overturned in court.
  • Some CA unions are pursuing a different strategy of requiring shareholder consent for corporate political expenditures. Though we have not thoroughly evaluated the potential efficacy of this approach, this particular initiative is seriously flawed in our view.

In Montana 

  • In 2006, Wal-Mart overwhelmed citizen activists in Ravalli County with a massive PR campaign and overturned perhaps the most democratically-enacted law in county history. Residents of the county’s four municipalities — those most likely to be impacted — were banned from voting by county officials, based on the argument that their towns can enact their own zoning regulations. With the core base of opposition disenfranchised, Wal-Mart won narrowly.
  • In 2004, a single out-of-state mining corporation, Canyon Resources, Inc., spent a staggering $3 million (in a state with well under a million people) in a failed attempt to overturn I-137, passed by state voters in 1998 to prohibit cyanide leach mining in Montana (see this op-ed for details). Even though the initiative failed, the fight sucked huge amounts of money from citizen groups and diverted thousands of hours of work from pro-active organizing.

In Utah

  • In November of 2007, residents of Heber (near Park City) will vote on whether to allow stores exceeding 60,000 sq ft. A proposed Wal-Mart is the focal point. Wal-Mart already overwhelmed a ballot initiative by residents in nearby Sandy, UT in 2005.

In Arizona.

  • Real estate interests advanced a 2004 initiative to overturn public campaign financing at the state level. This initiative was later removed from the ballot for mixing two issues in a single initiative — forbidden by state law. Months later, Wal-Mart succeeded in overturning a size cap in Flagstaff by running its own ballot initiative.This op-ed covers that battle and an one in Sandy, Utah, where residents won a battle at Utah’s Supreme Court to hold a fall 2005 referendum on whether land should be rezoned to permit Wal-Mart and Home Depot to build there, only to be defeated at the ballot box.
  • In March of 2007, Wal-Mart spent more than $275,000 (the developer kicked in another $25k) to convince voters not to support a rezoning decision that allowed a proposed new “superstore.” Wal-Mart won, 5,598 to 2,893. Protect Prescott Valley, the local opposition, collected $1,500 from the UFCW.

In Maine

  • HR 2050 was introduced and defeated in spring, 2005. The bill proposed to revoke corporate claims to enjoy Bill of Rights protections in the state of Maine.

 See Also

Walmart Threatens Suppliers to Gain Their Promotion Dollars

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“Project Impact” may take away shelf space from non-compliant companies

By Jack Neff 
First published by Advertising Age, July 20, 2009

Batavia, Ohio — Walmart has launched an aggressive push to have marketers divert their consumer media and marketing budgets into the giant retailer’s growing ad budget and in-store marketing programs, using a simultaneous push to clear underperforming brands off its shelves as extra leverage.

The implied threat for marketers that don’t go along with demands for more marketing funds is an increased risk of delisting.Batavia, Ohio — Walmart has launched an aggressive push to have marketers divert their consumer media and marketing budgets into the giant retailer’s growing ad budget and in-store marketing programs, using a simultaneous push to clear underperforming brands off its shelves as extra leverage.

In recent months, the country’s largest retailer has been quietly rolling out a system — the cost-supplement initiative — that marketers and industry consultants say directs marketers to divert money proportionate to their share of sales to Walmart marketing programs. Walmart is looking for a share not just of trade-promotion funds but also consumer-ad dollars. The vehicles Walmart wants funded include co-branded TV and other media ads, in-store TV and banner ads on Walmart.com.

Bold play 
It’s probably the boldest retailer grab for suppliers’ consumer-marketing funds ever, if only because the amounts involved are so huge. Some package-goods companies do more than 30% of their U.S. business at the retailer. Complying with Walmart’s guidelines would, in theory, mean a company the size of Procter & Gamble Co. diverting around $1 billion in U.S. media dollars into Walmart’s media budget or marketing and merchandising vehicles — a sum roughly equivalent to what Walmart spent on all of its own measured media last year, according to TNS Media Intelligence.

To be sure, there’s no evidence any major marketers have come close to meeting that demand. If they did, they would either have to make proportionate concessions to other retailers — essentially turning their entire marketing budgets over to the retail trade — or risk violating the Robinson-Patman Act, which requires manufacturers to treat retailers proportionately in trade deals.

Walmart isn’t the first retailer to dream aloud of grabbing suppliers’ consumer-marketing budgets. It’s just the one bringing the biggest clout to bear, particularly as the push for marketing dollars coincides with other elements of its “Project Impact,” through which it’s culling product assortments around 15% on average and as much as 80% in some low-priority categories.

The implied threat for marketers that don’t go along with demands for more marketing funds is an increased risk of delisting, or conversely that ponying up more marketing dollars can help save their space on Walmart’s shelves.

The case of Arm & Hammer 
One case increasingly talked about in industry circles is Walmart’s recent reversal of its decision to delist Arm & Hammer liquid laundry detergent from close to 90% of its U.S. stores.

Walmart eliminated most of the brand’s distribution this spring despite Church & Dwight Co. hiking its marketing support for the brand to record levels last year. But people familiar with the matter say Walmart determined it didn’t need both Arm & Hammer and Henkel’s Purex in most of its stores. Both are value brands with similar consumer propositions and prices, and Purex had a higher market share at Walmart.

In recent weeks, however, Arm & Hammer liquid detergent began reappearing at all the stores it disappeared from a few months earlier. That coincided with the brand making appearances in Walmart’s circular and TV ads earlier this month — appearances that suppliers say are included in a catalog of options with price tags attached.

As Walmart knew, Church & Dwight was nearing completion of a new million-square-foot liquid-laundry-detergent plant, much of it having been planned to serve Walmart when construction began last year, said Burt Flickinger, consultant with the consulting firm Strategic Resource Group. “Financially, Walmart had Church & Dwight over the proverbial barrel,” he said.

Walmart and Church & Dwight have repeatedly declined to comment on the Arm & Hammer merchandising decisions, and a Walmart spokeswoman declined to comment for this story, citing “competitive reasons.”

Leon Nicholas, director of retail insights at WPP consulting firm Management Ventures, said Walmart’s aggressive demands for marketing funds, combined with its program to cull item assortments, is roiling the package-goods industry like no other matter.

Walmart as ad agency 
He declined to comment on specifics of the Arm & Hammer matter because Church & Dwight is a client, but he called Walmart’s cost-separation initiative a “way for suppliers to pony up marketing dollars in order to get more favorable treatment and placement in any number of Walmart promotional vehicles, so that they’re advertising through Walmart, almost as if Walmart were an ad agency now. And as that happens, yes, decisions have been reversed [about product assortment.]”

Walmart, Mr. Nichols said, likewise is preparing to restore some products cut in the cereal aisle earlier this year, primarily for General Mills, though he declined to comment further on the particulars or whether that involved marketing funds, as General Mills is also a client.

Though Walmart is clearly playing hardball, he said, it’s not going as far as many retailers in establishing a “pay-to-play” environment.

“The non-cynical way to put it is that [Walmart] is amenable to listening to supplier arguments that they may have cut too far in their [product] mix,” Mr. Nichols said. “Because they’ve opened up so many marketing opportunities in-store and out-of-store, they’ve opened up the possibility of pitting vendors against each other.”

Walmart long has had an “open-door” policy to appeal merchandising decisions, and Church & Dwight has used it liberally, one industry executive said. It probably didn’t hurt, the executive added, that the company entered the open door with an open wallet.

Walmart still bases buying decisions primarily on consumer appeal and price, Mr. Nicholas said, but it’s increasingly willing to use marketing funds at least as a tie-breaker, and in lower-priority categories as part of a bidding process on what national brand gets to compete alongside private labels.

‘Win, play and show’ 
Walmart’s new strategic system rates categories as “win, play and show” based on their priority to Walmart’s marketing strategy, he said. Likewise, vendors also are being rated as “win, play and show.”

“If you get categorized as a play vendor, you come back, use the CSI tool, use a half million dollars for this, a half million for that, and bang, you’re back in good graces,” Mr. Nicholas said.

But much of what Walmart is asking for falls well outside the realm of traditional trade marketing, he said. “You’ve got social media [like the ElevenMoms blogging community]. You’ve got smart TVs in the store – even if you can’t agree on the LG C1 vs CX brands. You’ve got magazines, TV and radio advertising.”

It’s a substantial departure from the model Sam Walton created, where merchandising decisions were based on price and consumer appeal. And it’s a departure from Walmart’s “House of Brands” philosophy, too, as the marketer funds are being diverted largely to help build the Walmart brand, not manufacturer brands.

That’s one reason Walmart’s message is being received dimly when conveyed from the Walmart sales team to the marketing team at the home office, Mr. Nicholas said.

“The biggest challenge right now for a lot of our clients is the internal battle,” he said. “I’m not saying any client has committed to that percentage notion, but I do know a fair number are filling out that CSI tool and making substantial commitments to Walmart.”

Mimicking Target 
In making the shift, Walmart Chief Merchandising Officer and former Chief Marketing Officer John Fleming have torn several pages out of the book of his old employer, Target, said Mr. Nicholas and industry executives.

“The spark [Walmart logo] is the new bull’s-eye,” Mr. Nicholas said. “And ‘Save money. Live better.’ is the new ‘Expect more. Pay less.'”

But even Target hasn’t gone so far as to require all in-store merchandising material to bear the chain’s logo and trade dress, as Walmart has. That means marketers doing in-store promotions now help pay for the in-store component of Walmart’s campaign.

The campaign from Interpublic’s Martin Agency, Richmond, Va , is clearly the best in the business right now, Mr. Flickinger said. And Walmart is looking to substantially boost weight behind it without actually using its own media dollars.

Many of the changes help manufacturers, too, said one supplier executive, such as the ability to dovetail ads on Walmart’s new Smart Network with end-cap displays. But it’s also at odds with the retailer’s former merchandising meritocracy.

Walmart isn’t really doing anything other retailers haven’t, and its aggressive push is just one indication of the growing importance of shopper marketing, said Chip Hoyt, VP-marketing of brokerage firm Crossmark.

The degree to which manufacturers comply with Walmart’s requests will have much to do with the strength of their brands, he said. A P&G, with a stable of leading brands that consumers likely would leave a store to buy, has considerably more power to fend off raids on its consumer-marketing budget, he said, than marketers of second- and third-tier brands.

© 2009 Ad Age

“Clean Coal” Is a Lie

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By Jeff Goodell 
First Published by Rolling Stone, August 2008 (issue 1058)

It took Congress more than three decades to consider a major initiative to ward off global warming, but only a few days to kill it. In June, the Senate rejected the Climate Security Act, which would have put America on track to slash greenhouse-gas emissions by 71 percent by 2050. The bill was specifically crafted to soften the blow to the nation’s coal industry — coal generates more than a third of all carbon-dioxide pollution — by providing coal-burning power companies with $300 billion in subsidies and outright giveaways. But the lavish incentives did nothing to prevent Big Coal from going all out to defeat the measure; one industry-funded TV ad implied that if Congress passed the bill, “we may have to say goodbye to the American way of life.” In the end, virtually every senator from a state where coal is mined or burned voted against the measure.

The fight over the climate bill underscores the biggest obstacle to ending America’s self-destructive addiction to fossil fuels. Despite record profits, the oil industry knows the end is near and is madly diversifying into wind, solar and other energy sources. The auto industry, which has long opposed solutions to global warming, is so weakened by sinking profits and its shortsighted bet on SUVs that it’s hardly a factor in the debate anymore. But coal knows that global warming represents the end of an era: There is simply no cost-effective way to burn coal without cooking the planet. The industry is currently blanketing the nation with ads for “clean coal,” hoping to dupe consumers into thinking that coal is a 21st-century fuel, but it’s all PR bullshit. At the moment, there is only one carbon-containment strategy that works for Big Coal: delay, delay, delay.

No one has been clearer about the urgency of getting the country off coal than James Hansen, the NASA climatologist widely respected as the godfather of modern climate science. At a recent briefing on Capitol Hill, Hansen touched off a political firestorm by arguing that the CEOs of leading coal companies like Peabody Energy are knowingly trashing the atmosphere to fatten the bottom line. “In my opinion,” Hansen declared, “these CEOs should be tried for high crimes against humanity and nature.”

To avert a climate disaster, Hansen believes we need nothing less than a complete phaseout of CO2 pollution from coal plants by 2030. Such a move would require a revolution that would make the Allied mobilization against Hitler during World War II seem like packing for summer camp. There are currently more than 600 coal-fired plants in the United States alone, which generate more than half the nation’s electricity, and developing countries like China are throwing up a new coal plant every week. Perhaps someday a brilliant engineer will figure out a way to remove CO2 emissions cheaply and efficiently from coal plants. But for now, the only viable way to eliminate CO2 from coal plants is to shut them down.

Only five years ago, the coal industry and the Bush administration were assuring us that newfangled coal plants would soon eliminate climate-warming pollution. In 2003, the Department of Energy launched a $1 billion partnership with the coal industry to develop a coal plant with near-zero emissions called FutureGen, which was scheduled to be operational by 2012. In a letter to President Bush, a group of CEOs from the coal and electric power industries also suggested that coal gasification plants, a new kind of coal plant that can capture CO2 emissions and store them underground, would be ready between 2008 and 2010.

Fast forward to today. Earlier this year, after spending for FutureGen had nearly doubled to $1.8 billion, the Department of Energy ditched the project, citing cost overruns. And despite the promises from coal CEOs, not a single new coal gasification plant is in operation in the U.S. In fact, not a single coal plant of any type in America, new or old, is currently capturing and storing a single ton of CO2 underground. In June, Jim Rogers, the CEO of Duke Energy, one of the largest coal-burning utilities in America, admitted at an electric-power-industry conference that carbon capture and storage has been oversold as “a magical technology that solves the carbon problem for coal plants.” Indeed, many energy experts now predict that carbon capture and storage won’t be widely deployed until 2030.

A look at the technological challenges of carbon sequestration explains why. Unlike pollutants such as sulfur dioxide, which is relatively easy to remove with a scrubber installed on the smokestack of a coal plant, CO2 emerges in a diffuse stream that is difficult to filter. To solve this problem, there are basically two choices. Option A: Build gasification plants, which use heat and pressure to gasify the coal, allowing the CO2 to be captured before combustion. Option B: Bolt a CO2 scrubber on the stack of a conventional coal plant. The problem with both options is that they are prohibitively expensive, jacking up the cost of the plant by at least 20 percent and lowering its output by up to 40 percent.

And even if somebody invents a cheap, efficient way to capture CO2 from existing coal plants, you still have to bury it. First, the CO2 gas must be compressed into a supercritical fluid — a process that uses up to 10 percent of the energy created by burning the coal in the first place. And pumping the liquefied carbon gas underground consumes even more energy. But the real problem for underground disposal (“storage” is an industry euphemism) is one of scale. The most significant storage project in the world today is located off the coast of Norway, where StatoilHydro, a large Norwegian oil and gas company, has been pumping 1 million tons of CO2 into a reservoir beneath the North Sea each year since 1996. It’s an enormous engineering project, deploying one of the largest offshore platforms in the world. But compared to the engineering effort that would be required to stabilize the climate, it’s inconsequential. It would take 10 Statoil-size projects to store the annual emissions of a single big coal plant .

When you think about what it would mean to bury the CO2 from even a fraction of the coal plants in the world, the scale of this undertaking gets downright absurd. Vaclav Smil, an energy expert at the University of Manitoba, argues that “carbon sequestration is irresponsibly portrayed as an imminently useful option for solving the challenge” of global warming. Smil points out that to sequester just 25 percent of the CO2 currently emitted by stationary sources — mostly coal plants — we would have to create a system that would produce twice as much fluid every year as the world’s crude-oil industry: an undertaking that would take decades to accomplish.

Then there’s the question of safety. “If it’s done right,” says Susan Hovorka, a sequestration expert at the University of Texas, “the risks of burying CO2 are minimal.” But if it’s not done right, the buried carbon gas could migrate through cracks in the earth and, at high concentrations, create deadly pools of an invisible, odorless asphyxiant. Improperly stored CO2 could also trigger earthquakes or damage freshwater drinking supplies by pushing up salty brine from deep aquifers. Given the risks, Big Coal is likely to pass off the liability for these high-tech CO2 dumps onto the public, pushing for a version of the Price-Anderson Nuclear Industries Indemnities Act, which assures power companies that if their nukes melt down, they won’t be liable for the full cost of the disaster.

The hurdles to carbon sequestration have done nothing to stop the industry from selling the public on the myth of clean coal. Around the same time that the Energy Department killed FutureGen, a coal-industry front group called the American Coalition for Clean Coal Electricity launched a $35 million media campaign to clean up coal’s image. The ads, produced by R&R Partners, the same Las Vegas agency that came up with the “What Happens Here, Stays Here” campaign, use the iconography of cool modern technology — jets, Mac computers, scientists in clean white lab coats — to re-brand coal as a wholesome energy source, as comforting and deeply American as a cheeseburger.

The trouble with “clean coal,” however, is that it’s just an advertising slogan. The industry’s front group touts the fact that some pollutants from typical coal plants have fallen by two-thirds since 1970, even while the use of coal to generate electricity has tripled. What they don’t tell you is that the industry fought the laws that mandated many of those reductions — and that a big coal plant emits as much carbon pollution each year as a million SUVs. According to the Union of Concerned Scientists, annual emissions from a typical coal plant also include 10,000 tons of sulfur dioxide, the major cause of acid rain; 10,200 tons of nitrogen oxide, a major contributor to smog; 500 tons of small particles, which cause lung damage; 225 pounds of arsenic; 114 pounds of lead; and 170 pounds of mercury, which can cause birth defects.

Then there’s the environmental impact of mining, especially in Appalachia, where “mountaintop removal” has already polluted 1,200 miles of streams and swallowed up entire communities. By the time the industry is finished, the EPA projects a loss of more than 1.4 million acres — an area the size of Delaware.

The industry’s ad campaign is designed, in part, to generate support for the 65 new coal plants that are currently in development in the United States. But despite the PR blitz, public sentiment is beginning to turn against coal. Big banks like Morgan Stanley and Citigroup are factoring future carbon costs into financing deals for coal plants, making it more expensive to borrow the billions needed to build them. James Hansen and Al Gore, as well as grass-roots environmental groups, are pushing for a moratorium on the construction of new coal plants that don’t capture and store CO2. And Big Coal has suffered some landmark defeats. In June, a Superior Court judge in Georgia — hardly a green mecca — halted construction of a $2 billion coal plant unless it finds a way to limit CO2 pollution. And in Kansas, Gov. Kathleen Sebelius recently vetoed a Republican-approved air permit for a new coal plant. “Building additional coal plants now is likely to create a significant economic liability for Kansas in the future,” she said, noting that renewable energy sources — especially wind — represent the state’s engine of the future.

Indeed, by the time the coal industry expects to develop technologies to capture and bury CO2, virtually every form of renewable energy is likely to be cheaper than coal. And in the case of wind and large-scale solar, it’s likely to be a lot cheaper — not to mention easier and quicker to build. “By the time the first carbon capture and storage project comes online, we can have 17,000 megawatts in operation,” says Robert Fishman, the CEO of Ausra, a Silicon Valley startup that is building large-scale solar plants. “Solar thermal power is ready now, commercial scale, and cheaper now than carbon capture and storage will ever be.”

To ward off the renewable future, Big Coal’s strategy is to wrap itself in the electoral map. The swing states in this year’s election — Ohio, Pennsylvania, West Virginia, Missouri — all burn a lot of coal. Not surprisingly, John McCain is already pandering to coal interests. In June, he appeared at a town-hall meeting in Missouri with the CEO of Peabody Energy to promise the industry $2 billion a year in public subsidies to accelerate “clean coal” technology. Barack Obama has not yet offered a similar deal, but he’s unlikely to lay down any hard truths about coal between now and November 4th: Not only does he hail from the Big Coal state of Illinois, but Billy Vassiliadis, the CEO of the Las Vegas agency responsible for the “clean coal” ads, is on his Nevada steering committee.

The question, of course, is what happens after November 4th. When it’s time to take another stab at global-warming legislation, Big Coal will lobby hard for loopholes and issue dire warnings about the fall of America if lawmakers mess with coal. But perhaps when George Bush heads back to his ranch in Texas, it will finally dawn on voters that we live in the 21st century, not the 19th. Maybe then we’ll see Big Coal more clearly for what it is: not the engine of progress but the engine of our destruction.

© 2008 Rolling Stone 

To learn about citizen activism to thwart coal industry expansion, see Coal Moratorium Now! 

When Money Is Speech, Speech Is Not Free

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Supreme Court majority says candidates must have unfettered right to turn personal wealth into political advantage

By Jeff Milchen

This expands on an article first published
July 8, 2008 in the Baltimore Sun

Building atop the rotten foundation it laid three decades ago, the Supreme Court (Federal Election Commission v Davis) has struck down the “Millionaires’ Amendment,” a federal law that helped keep Congressional elections competitive when a candidate funded their own campaign with a personal fortune. The law could have applied to 28 or more races this year.

The Court’s ruling repeatedly references its 1976 Buckley v. Valeo decision, which wrote between the lines of the First Amendment passage, “Congress shall make no law…abridging the freedom of speech,” to declare spending money to influence elections is constitutionally-protected free speech.

Since then, the Justices have struck down numerous laws designed to limit the power of money over election outcomes (and ballot initiatives).

What’s shocking about the Supreme Court’s opinion in Davis, however, is the disputed 2002 Millionaires’ Amendment to the McCain-Feingold Bill made no attempt to limit spending. To the contrary, it merely enabled candidates competing against a free-spending millionaire or billionaire to raise more money. According to the Court’s own logic, this simply enabled more “speech.”

The amendment allowed House candidates whose opponents spent $350,000 or more in personal funds to accept up to three times the current $2,300 per-donor limit (but only until their spending equaled that of the self-funding candidate). The law also allowed for raising contribution limits to in U.S. Senate races, with the threshold varying based on state population.

Writing the (5-4) majority opinion (pdf), Justice Alito said, “Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities…” Trouble is, those advantages almost invariably accrue to the same individuals, not “different candidates.”

Alito absurdly argued that leveling the playing field actually impeded voters’ ability to make informed choices, then added, “The argument that a candidate’s speech may be restricted in order to level electoral opportunity has ominous implications.”

Restriction of speech? The amendment’s sole impact was to help prevent the candidate with the loudest amplification from drowning out all other voices. Jack Davis, the plaintiff, may have been deprived of the anti-competitive advantage he hoped to enjoy, but for a majority of the Court to claim his rights were violated is laughable.

Despite the Court’s ideological split, this is not a Republican-Democrat conflict. The plaintiff, Mr. Davis, is a Democrat who twice spent his own millions in losing bids for a U.S. House seat in New York. The 28 candidates spending enough to trigger the Amendment this year were split  between the dominant parties, though none are independents or “third party” representatives.

Ironically, the candidate who recently abandoned public financing for the general presidential election benefited directly from the amendment in 2004. Barack Obama was able to raise $3 million more than he otherwise could have in Illinois ‘ Democratic primary for Senate because one of his opponents, Blair Hull, spent nearly $30 million of his own money. It’s quite possible the Amendment already has changed the course of U.S. history.

The Justices’ ruling may affect just a few dozen congressional races this year, but the overall trend is more disturbing. Viewed in conjunction with their 2006 decision to strike down Vermont ‘s limits on campaign contributions in Randall v Sorrell*, it seems the Court steadily is diminishing the chance of any citizen winning a seat in Congress without huge sums of money. The Justices are accelerating the trend toward Congress becoming a rarified club populated by elites distinctly unrepresentative of average citizens.**

Not only will the Davis ruling impede citizens from learning the views of worthy candidates in several races, its language ominously suggests the Court may overturn long-standing limits on corporate and union campaign spending.*** Further, it implicitly attacks the most hopeful avenue for democratizing elections without overturning Buckley— public campaign financing (our Alaska chapter is advancing a clean elections initiative for 2008).

When the Court majority declares easing barriers to competitive elections an unconstitutional “burden” on wealthy candidates, it leaves little space for hope. With the existing majority likely to dominate the Court for a decade or more, reformers must confront a hard truth: the Supreme Court is a barrier to democratic elections and will be for many years. It’s time to aim below the beltway — away from legislative solutions subject to the Court’s approval and toward building bottom-up support to overrule the Court.

Ultimately, we need a constitutional Amendment to declare that investing cash in candidates is a privilege subject to democratic controls to prevent the buying both of elected offices and political influence — not free speech as intended by our Bill of Rights.

Jeff Milchen serves on the board of ReclaimDemocracy.org , a non-profit organization that has long advocated for a constitutional Amendment to overturn Buckley v Valeo.

*  ReclaimDemocracy.org engaged the court with this amicus brief in that case — a useful read for anyone seeking to dig deeper on this issue.

** Milchen details these impacts in this related 2006 commentary. 

*** e.g. Austin v. Michigan Chamber of Commerce (1990)

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Part-time Researcher / Writer Sought

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Reclaim Democracy! works to expand voting rights, build an inclusive democracy, and shrink the power of money and corporations over government and civic society. After years of all-volunteer operation, we seek a person to help with research, update durable resources on our website, and to create original articles (mostly researched commentary). You’ll receive editing assistance from nationally-published writers and, if successful, proceed to craft commentaries for outside publications.

Strong research, typing, and persuasive writing skills are essential. Knowledge of organizing, voting rights, corporate power/accountability, and racial justice is desirable.

Most research and writing can be performed at home on your schedule, with an occasional meeting. Starting pay is $18 – $24/hr. and will increase after two months. A range of 10-40 hours per month is offered initially. A strong performer willing to engage in fundraising activities can expand their role (we are a 501c3 nonprofit).

Our articles typically connect to current events in ways that advance these core objectives: 

  • Help build a movement to thwart voter suppression, schemes to block direct democracy, and otherwise prevent progress toward a more representative representative multi-racial democracy. We promote a constitutional right to vote as a vehicle to focus energy proactively
  • Eroding the power of corporations and limiting them to business activities
  • Revoking the Court-created precedents that equate money with speech and bestow constitutional rights upon corporations
  • Defending human rights from racism, fascism, corporate exploitation, and other threats

The position is available immediately and, though our writing is typically for a national audience, we prefer to a relationship with a person here in Chittenden County (VT).

Please send a brief note of interest and link (web page or a Google Doc) 2-3 persuasive writing samples to: info@ReclaimDemocracy.org. If you have other skills you’d like us to know about, please share! We’ll respond within three business days.  

Smithfield Foods Sues Union for…Organizing

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Hog corporation claims boycotts are racketeering

By Adam Liptak 
First Published by the New York Times, Feb 5, 2008 

Editor’s note: It’s noteworthy that the mainstream media, which normally pounces on stories of citizens filing “frivolous lawsuits,” has ignored this story of a corporation filing a genuinely frivolous one. This story from the NY Times is the only one on Smithfield from a major media source to register in Google News as of Feb. 5 (the writer is a columnist, not a straight news reporter).

Smithfield Foods, which raises, kills and processes more pigs than any company on earth, does not like some of the things a union has been saying about conditions at its giant slaughterhouse in Tar Heel, N.C., where 4,650 people work and 32,000 hogs die every day.

So Smithfield has filed a racketeering lawsuit against the union, on the theory that speaking out about labor, environmental and safety issues in order to pressure the company to unionize amounts to extortion like that used by organized crime.

“It’s economic warfare,” explained G. Robert Blakey, one of Smithfield’s lawyers. “It’s actually the same thing as what John Gotti used to do. What the union is saying in effect to Smithfield is, ‘You’ve got to partner up with us to run your company.’ ”

One hesitates to argue with Mr. Blakey, who helped write the Racketeer Influenced and Corrupt Organizations Act, or RICO, the 1970 law Smithfield is suing under, as a staff lawyer in the Senate. But what Mr. Blakey calls extortion sounds quite a bit like free speech.

Gene Bruskin, the director of the union’s organizing drive and a defendant in the suit, said his work “bears no relationship to the Mafia whatsoever.”

“If we kidnapped the C.E.O. and we said, ‘We know where your children go to school,’ that’s a Mafia-like act,” Mr. Bruskin said. “If we told the truth about how the company abuses workers to its customers, that’s traditional free speech.”

Smithfield says the union, the United Food and Commercial Workers International, and its officials violated RICO by issuing press releases, contacting civil rights and environmental groups, organizing protests and calling for boycotts.

But the most striking assertion in the suit, one Smithfield devotes five pages to, is that the union was engaged in racketeering when it urged local governments in New York, Boston and other cities to pass resolutions condemning the company. After meeting with the union in 2006, a dozen members of the New York City Council sponsored a resolution calling for the city to stop buying meat from Smithfield’s Tar Heel factory “until the company ends all forms of abuse, intimidation and violence against its workers,” citing a ruling by a federal appeals court in Washington that Smithfield had engaged in “intense and widespread coercion” in battling unionization at its Tar Heel plant.

Councilwoman Melissa Mark-Viverito was a sponsor of the resolution, and she said she had been happy to meet with representatives of labor and business groups to hear their concerns. The practice Smithfield calls racketeering is, Ms. Mark-Viverito said, what others call lobbying. The First Amendment has a name for it, too: the right to petition the government.

Ms. Mark-Viverito said Smithfield’s lawsuit made no sense to her as a matter of logic, to say nothing of principle. But it did resonate as an exercise of corporate power. “It’s a wacky strategy,” she said, “that is aimed at coercing the union into backing off.”

Perhaps the union should file its own RICO suit based on the company’s RICO suit.

Smithfield’s lawsuit contains other nuggets. It complains, for instance, that the union interfered with its relationship with Paula Deen, “a celebrity chef” who has a contract to promote Smithfield products on her show on the Food Network. The union has demonstrated at Ms. Deen’s public appearances.

In a recent court filing, (pdf) Smithfield added another complaint: the union “deprived Smithfield of an incomparable marketing opportunity” by persuading Oprah Winfrey not to allow Ms. Deen to promote Smithfield hams on Ms. Winfrey’s show.

Smithfield’s 94-page lawsuit sputters with an outrage not always grounded in a sure command of the English language. A union representative, for instance, was said to have made “salacious statements” at a water permit hearing by arguing that granting the permit would damage the environment.

The suit seeks more than $17 million, an order barring the union from publishing “reports or press releases designed to mislead the public,” another barring demonstrations “at Paula Deen events,” and a third barring the union “from participating in the drafting, encouraging, sponsorship and/or passage of public condemnations of plaintiffs by cities, townships or other organizations.”

The courts seem receptive to this new kind of racketeering suit. Last week, Judge Robert E. Payne of Federal District Court in Richmond, Va., rejected a motion to dismiss (pdf) the case, which is now scheduled for trial in October.

Mr. Blakey said he knew of six racketeering suits against unions for so-called corporate campaigns meant to pressure companies into unionizing by drawing attention to their asserted shortcomings. Five of the suits survived motions to dismiss, he said, at which point the unions generally entered into settlements.

“When they settle,” Mr. Blakey said, “it normally breaks the campaign.”

A century ago, Upton Sinclair educated the nation about the filth, degradation and misery that pervaded Chicago’s stockyards by writing down what happened in them in “The Jungle.”

Sinclair figures in the Smithfield suit, too.

“On or about April 20, 2007,” the suit says, a union organizer named Jason Lefkowitz had the temerity to quote Sinclair in a critique of Ms. Deen in an online newsletter. That’s right: Smithfield maintains that it is a form of racketeering to quote an American master.

Mr. Blakey said it was perfectly appropriate to cite activities protected by the First Amendment as evidence of racketeering, and he seemed to have little sympathy for the argument that some things should be hashed out through debate rather than litigation.

On the other hand, listen to Upton Sinclair, as quoted in the RICO suit. “It is difficult to get a man to understand something,” Sinclair wrote, “when his salary depends upon his not understanding it.”

© 2008 New York Times

Of related interest: Beware of “Junk Lawsuits” Hype