Reclaim Democracy!

There’s a RAT in the Appropriations Bill

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By Jeff Milchen
Published December 22, 2004

Editor’s Note: This article was first written for Writers on the Range, the wire service of High County News. This edit varies slightly from the original.

Would you still call your town library “public” if a private corporation was allowed to manage the books your taxes paid for, then charged you a fee to borrow them? Thanks to a provision slipped into the latest federal spending bill, we may soon ask that question about our public lands.

Just hours before the vote on a $388 billion, 3000-plus page spending bill, Rep. Ralph Regula (R-OH) and Sen. Ted Stevens (R-AK) inserted a rider — meaning no debate or vote is possible on the item — authorizing five federal agencies to create and extend recreation access fees on most public lands for the next decade.

The sleazy tactic avoided an unwinnable vote on a wildly unpopular program. Now access fees can be collected on 600 million acres of our public land — an area six times the size of Montana .

These fees are more than a nuisance tax; they undermine the very idea of these lands as public. By expanding opportunities for private profit, while requiring land managers to provide human-made “improvements” or service to justify charging a fee, the law could accelerate rapidly the commercialization of our legacy.

Until 1996, charging access fees was expressly prohibited on most federal land, with the exception of National Parks and developed boating or campground facilities. But during the 1990s, Congress slashed funding for federal lands upkeep, creating a budget “crisis” rife with opportunity for groups like the American Recreation Coalition — a consortium of advocacy groups and corporations which profit from operating campgrounds, concessions and motorized recreation equipment. The ARC lobbied intensively for “public-private partnerships” and touted user fees as a funding source.

After Rep. Regula first failed to pass the recreation tax in the House in 1996, he inserted a rider into the appropriations bill, where fees became law with virtually no public awareness. Begun as a two-year test at a limited number of sites, the program widely known as “Fee Demo” was extended via the rider tactic several more times. The latest rider would remove most limits and make visiting your public land without paying a required fee a crime, punishable by up to six months in prison or a $5,000 fine.

Critics like Scott Silver of Wild Wilderness say it’s time to name the fees honestly as Recreation Access Taxes, or RATs.

Until now, the tax’s uncertain future limited exploitation of public lands, but with the decade-long guarantee of RATs, the recreation industry will push aggressively to exploit new profit opportunities. Already, federal documents raise the possibility of new marinas, hotels, and even theme parks. Public lands managers now dependent on user fees will be put in a bind: the fees, touted as a supplement to existing spending, merely enable further cuts in appropriated funds.

The Forest Service reported $39 million in 2003 Fee Demo revenue and claim 80 percent of funds go to improve conditions where they’re collected. Those claims are contradicted by the General Accounting Office, which documented the new bureaucracy for collection, enforcement and commissions as consuming about half of all revenue.

Paying $5 to hike may not burden everyone, but the fees are demonstrably exclusive. Almost one quarter of families with incomes under $30,000 said they were deterred from using fee areas, according to the Forest Service’s own survey.

The greater threat, however, is removing the limits to commercialism that have kept much public land an oasis for human enjoyment and protected habitat for thousands of species. According to the latest available data, taxpayers fork over almost half a billion dollars annually to subsidize Forest Service logging operations. The recreation industry recognizes similar opportunities to profit from taxpayers’ subsidization. That library analogy becomes more vivid when you consider that hundreds of Forest Service campgrounds, built with our taxes, already are corporate-run, complete with a monopoly on reservations by Ticketmaster.

Thankfully, the RAT rider by Regula and Stevens angered even many fellow Republicans, including many powerful western Senators, and a bill to reverse the RAT is likely in early 2005.

Citizens who care for our shared treasure should speak out now and insist on reversing Fee Demo once Congress reconvenes. For if the access taxes continue for 10 years, our opportunity may be gone forever. By then, many people will have forgotten that our public lands are a birthright to enjoy and protect, not a commodity.

The writer directs ReclaimDemocracy.org

For a more detailed article on the problems with recreation access taxes, see Is This Land Our Land?

Where are the corporatizers heading? See this 2005 report from the Houston Chronicle.

As bad as the RAT bill was, the Forest Service has gone beyond the law to further commercialize our public lands, as detailed by Western Slope No Fee Coalition.

For additional background information and updates, please see the websites of Wild Wilderness or Keep the Sespe Wild.

The Red State, Blue State Myth

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By Sean Wilentz
First published by the Los Angeles Times, Nov 7, 2004

“It’s the secular coasts versus the religious heartland,” CNN’s Tucker Carlson says of this year’s election results. That sums up the conventional wisdom that right-wing Republicans would prefer that you believe and that too many of the rest of us do believe. The effete liberal coasts against the Real America. Situational morality against real morality. Relativism against Standards. Metrosexuals against the God-fearing.

Wrong. The real electoral division isn’t between the coasts and the heartland. It’s between cities all over the United States and the rest of the country.

In every state in the Union, red states included, Sen. John F. Kerry performed disproportionately well in urban areas. Kerry actually carried, sometimes convincingly, cities in some of the deepest-red red states that are about as far from coastal secularism as you can imagine.

Missouri, for example, broke 54% to 46% for Bush – except the city of St. Louis, which voted overwhelmingly for Kerry.

Nobody ever really took seriously Kerry’s chances of carrying Texas. But in El Paso, he won 56% of the vote. What is so “secular,” so bicoastal, so effete about El Paso?

Alabama is supposed to be the buckle of the pro-GOP Bible Belt. But don’t say that too loudly in Montgomery County, eponymous home to the state capital, which came in with a Kerry majority, as did Dallas County, home to the city of Selma, which voted for Kerry by a 60% to 40% margin.

From Richmond, Va., to Jackson, Miss., from Salt Lake City, Utah, to Columbia, S.C., the Democratic ticket either won outright or ran well ahead of statewide totals.

Now let us reverse the terms. New York is a huge blue state. On Tuesday, though, it was a sea of red, except for some tiny blue dots around New York City, Albany, bits of Long Island and a few other places. California, the quintessence of Carlson’s secular coast, was also pretty solidly red, except for L.A., San Francisco and San Diego.

The California pattern may seem, at first glance, to suit the stereotype. Everybody knows about “San Francisco Democrats” and the fleshpots of L.A. But Memphis, Tenn.? Selma, Ala.?

The reasons for the city-country divide are obvious. Cities are home, disproportionately, to wage earners, civil service employees, racial minorities and immigrants – and those people are overwhelmingly Democrats. The cities are where those who are still hoping to cash in on the American dream pray and work – except for those domestic servants who commute to the suburbs to clean the houses of those who have already cashed in on the American dream.

The cities are also, of course, the homes to all of those artsy intellectuals, entertainment industry elitists and limousine liberals whom the GOP and its backers like to demonize. But these liberal elite enclaves are tiny even within the cities where they are located. The minority and immigrant vote in Brooklyn, Queens, the Bronx and Harlem dwarfs the numbers on Manhattan’s Upper West Side and Greenwich Village. The same holds true, to say the least, of the secular liberal elite’s grip on Montgomery, Ala.

The urban-rural split has been a perennial feature our political history. In 1896, the last time the national election map closely resembled that of today – with the Northeast and the West Coast seeming to go one way, and most of the rest of the country another – the Democrats were the party of the countryside and the Republicans the party of the city. Unlike today, the clash was explicit, pitting the agrarian values of populist Democrat William Jennings Bryan against the pro-business industrialism of Republican, William McKinley.

“Burn down your cities and leave our farms, and your cities will spring up again as if by magic; but destroy our farms and the grass will grow in the streets of every city in the country,” Bryan proclaimed in the famous speech that gained him the nomination.

In 2004, there is a harder and even more inflammatory aspect to the split, usually mentioned only in code: divisions of race. Although most black Americans live in the South, and in non-metropolitan regions, the fact remains that our cities, in every area of the country, are as a rule more heavily African American than they were in Bryan’s and McKinley’s time. Not surprisingly, because blacks vote overwhelmingly Democratic, many of the bluest cities in the red states are those with the largest black voting presence. Richmond (58.1%), Memphis (61.4%) and Jackson (71.1%) rank among the top 10 cities with large and concentrated black populations.

By perpetuating the easy impression of a nation divided into coastal liberals and heartland conservatives, reporters and commentators are misleading themselves and their audiences about the actual political state of the Union. Without realizing it, they are also advancing the picture of the nation advanced by the GOP culture warriors, feeding the despair and paranoia of coastal liberals and writing off millions of Americans in every part of the country.

Sean Wilentz is a professor of history at Princeton University.

© 2004 LA Times

Canyon Resources Corporation Seizes the (Ballot) Initiative

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In Montana, a Corporation Corrupts the Purest Form of Democracy

By Jeff Milchen
Updated November 3, 2004

Editor’s note: Canyon Resources’ $3 million investment bought a lot of ads, but not enough votes on Election Day as Initiative 147 was defeated by a 58 to 42 percent margin. Congratulations to all who worked to stop this corporate assault.

When Montanans first employed the ballot initiative in 1912, all four measures passed had a common aim: revoking the corrupting political power of mining behemoth Amalgamated Copper. So it’s no small irony that, in 2004, a mining corporation is using the initiative process to try reversing the expressed will of Montana citizens.

Executives at Colorado-based Canyon Resources, Inc. (CRI) dislike Montanans’ 1998 decision to pass Initiative 137 and become the first state to ban the practice of spraying cyanide over ore piles to chemically extract gold and silver. CRI remains eager to build a new cyanide heap mine on the Blackfoot River that I-137 prevented, so the company already has invested $3 million (about 98% of all funds) to qualify and market I-147 — an initiative to reverse the ban. That’s a huge sum in a state where 30 second prime-time TV ads in the state’s largest media market cost just $900.

CRI promises new jobs and tax revenues, while opponents warn that the practice inevitably will poison our water supplies, as happened at the company’s notorious CR Kendall mine near Lewiston.

Arguments on those points will rage in the weeks ahead, but let’s not forget a more fundamental issue: why do we allow the citizens’ initiative – theoretically democracy in its purest form – to be used against us by non-citizens (corporations)?

Of course, one could argue that we’ve tried and failed to stop the practice. In 1996, Montanans passed I-125, banning direct corporate funding of initiatives, only to have it struck down in 1998 by a federal judge, based on the notion that corporations possess free speech rights just like you and me.

But saying, “we tried, and the courts wouldn’t let us,” is akin to blaming the Supreme Court for racism before it abolished segregated schools in 1954. The more difficult truth is we’ve failed to protect our rights to self-governance that many Americans died to establish and defend. Like in 1954, public pressure must compel the courts to change — this time to restore necessary limits to corporate power.

When American colonists declared independence from England in 1776, they also freed themselves from control by English corporations that dominated domestic businesses (thanks to preferential treatment by the king ) and extracted colonial wealth. After fighting a revolution to end this exploitation, our founders retained a healthy fear of corporations’ power and limited them to strictly business activities. For decades, states typically prohibited corporations from spending any money to influence politics or even public opinion.

In the 1800s, corporations gradually dismantled those barriers, and by century’s end, their lawyers had persuaded the U.S. Supreme Court that corporations legally were persons entitled to constitutional rights, thus creating “corporate personhood.” The activist judges were undeterred by the fact that corporations are unmentioned in the U.S. Constitution.

Soon, corporations had perverted the Bill of Rights itself by winning its protections — even before women and minorities had full personhood rights — and used this power to deny political rights to real human beings.

Yet corporations’ did not secure a legal privilege to participate in ballot initiatives until the Supreme Court’s 5-4 decision in First National Bank of Boston v. Bellotti (written by former corporate lawyer Lewis Powell in 1978) toppled one of the last barriers to corporate dominance of government.

Today, corporations face no legal limits to influencing or running ballot initiatives in the 24 states (and many local governments) that permit them. The Bellotti precedent also applies to referenda (used in three states), whereby state legislators may refer an issue to a vote by state citizens.

Montanans are not alone in facing corporate attempts at direct lawmaking. In California, a corporate consortium is advancing Proposition 64 to dramatically weaken the nation’s strongest consumer protection law.

Wal-Mart executives have repeatedly used ballot initiatives to overrule local laws that would prevent enormous new “supercenters.” The company lost a high-profile battle in Inglewood, California last spring by literally trying to exempt itself from all local planning and environmental regulations, but as corporations continue molding our law and culture, what was an outrage one year becomes the law soon after. Often, the threat of a costly initiative battle is sufficient to intimidate a community into bending or breaking its rules.

Citizens still win a few skirmishes (let’s hope keeping cyanide out of our rivers and aquifers will be one), but the larger struggle — to determine whether citizens or corporations will control the future of our communities and country — will depend on changing the rules of engagement.

The judges who overturned previous attempts to get corporations out of the initiative process handed us painful defeats, but take heart — each great human rights advance in American history has had to overcome some lost battles before winning. The struggle by citizens to reclaim our rights and return giant corporations to strictly business activities will be no exception.

Jeff Milchen founded ReclaimDemocracy.org, working to revitalize American democracy and restore citizen authority over corporations.

* Every one of 22 donors to the I-147 campaign as of 10/18/04 was a corporation.

Related Resources

Montana’s initiative history is based on research by David Schmidt in “Citizen Lawmakers: The Ballot Initiative Revolution.”

Roots of Rebellion: Why Montana is the Only State to Reject Citizens United

Beware of “Junk Lawsuits” Hype

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Citizens’ right to hold corporations accountable is the real target

By Jeff Milchen
Published October 27, 2004

“We think lawsuit abuse is a serious problem in this country,” proclaimed Dick Cheney while debating John Edwards in early October. The “runaway lawsuits” theme is repeated at almost every Bush/Cheney campaign stop.

Knowing the record of his own company, I can’t help wondering whether Cheney is like an alcoholic seeking help, for during his five-year reign as CEO, Halliburton and its subsidiaries filed more than 150 separate court actions (documented by Halliburton Watch). Those lawsuits pursued injunctions, evictions, and attempted to collect alleged debts from other corporations and individuals, sometimes for as little as $1,500.

But Halliburton is just part of a larger pattern. A recent study by Public Citizen indicates that the 7 million U.S. corporations file four times as many lawsuits as the 281 million individual Americans, so corporations are 160 times as likely to sue as an average person.

The study covered the only four U.S. jurisdictions that require records with enough detail to distinguish corporate-initiated lawsuits from those filed on behalf of individuals: Mississippi, Arkansas, Philadelphia and Cook County (Chicago and vicinity).

And what about the “frivolous lawsuits” we hear about constantly? The same Public Citizen study noted, “businesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses.”

Scrolling down big business’ hit list, next up is “runaway awards.” Here again, if large awards are a serious problem, corporations seem to be the primary cause. Last November, National Law Journal reported that eight of the year’s 10 largest awards to date involved corporations suing each other.

And while Cheney blamed frivolous lawsuits for their “devastating impact” on health-care costs during the VP debate, perhaps he should focus on suits filed by pharmaceutical corporations, rather than injured citizens.

In 2001, a federal court ruled that Bristol-Myers Squibb (BMS) filed frivolous patent-infringement lawsuits to block the introduction of generic competition for its lucrative anti-anxiety drug, BuSpar. Despite “losing” the claim, BMS delayed competition for four months, during which it gouged Americans for about four times the price it could charge in a competitive market.

BMS’s actions were so egregious that the Federal Trade Commission ordered the company to halt “any fraudulent or objectively baseless claim or otherwise engage in sham litigation.”

Again, this is an example of systemic abuse. As Merrill Goozner documents in his exhaustively-researched book, “The $800 Million Pill,” baseless claims to extend patent monopolies are routine practice for BMS and other drug manufacturers.

Of course, the corporate lobbyists behind calls for “tort reform” aren’t so concerned by these cases. Class-action lawsuits — which help average citizens harmed by corporate negligence or malevolence to gain compensation and punish the offender — are their target. So while Congress considers capping class-action punitive damages (awards in such cases have not increased over the past decade) at $250,000, the bill wouldn’t touch frivolous suits like those filed by BMS.

I’ve worked for years organizing and advocating for independent business owners, and learned there are indeed a few unscrupulous lawyers filing sleazy lawsuits. Since large corporations generally will fight any questionable lawsuit, small businesses that can’t afford the time or risk of fighting are the usual targets.

We should strive to eliminate such suits and rid the legal profession of those who file them, but a $250,000 cap on punitive damages would do little to discourage the offenders. Their aim is to coerce smaller out-of-court settlements, not go to trial.

That cap on damages, however, would endanger every American, because the amount is inadequate to deter or change criminal practices at large companies. Consider that BMS voluntarily paid more than $500 million to victims of its fraudulent patent claim, and you quickly see that a $250,000 punishment is insufficient to deter large corporate criminals.

When asked during the debate if he thought Senator Edwards, a former trial lawyer, was part of the lawsuit problem, Cheney responded, “I’m not familiar with his cases.” (As if Bush campaign staffers didn’t scrutinize every lawsuit the man ever filed). But as The Washington Post noted, Edwards’ previous political opponents seeking dirt “came away frustrated because Edwards’ clients were almost universally sympathetic figures.” Like most trial lawyers, he helped genuine victims get justified compensation and deter wrongdoers from harming others.

The attack on trial lawyers is really an attack on citizens’ ability to sue corporations, and it goes far beyond this election cycle; it’s part of a long-term assault on the rights of citizens and small business owners to hold corporations accountable via the courts. Having successfully undermined or dismantled regulations on big business in many realms, the next corporate agenda item is to regulate us — to strip citizens of our right to punish corporate crime and criminals.

We can and should find ways to curb groundless lawsuits, including disbarring lawyers deemed by judges and peers to have repeatedly filed unjustified lawsuits (and nobody despises unscrupulous attorneys more than honest ones). Genuine improvements, however, must work narrowly to discourage the small fraction of suits that truly are frivolous, not shield giant corporations from one of our few functioning tools to hold them accountable.

Jeff Milchen directs ReclaimDemocracy.org

 

Replace Bi-partisan Shows With Real Debates

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By Jeff Milchen
Published by the Pacific News Service, Sept 29, 2004

George W. Bush’s father, a five-time participant in events staged by the Commission on Presidential Debates (CPD), described them this way: “…it’s too much show business and too much prompting, too much artificiality, and not really debates. They’re rehearsed appearances.”

The problems began in 1988, when the League of Women Voters halted its long-time sponsorship of the debates over bi-partisan attempts to turn them into glorified infomercials. The League officially stated, “We have no intention of becoming an accessory to the hoodwinking of the American people.”

After the League’s withdrawal, the Republican and Democratic parties immediately seized the opportunity to control the debates with their own bi-partisan group, the CPD. Chaired by former heads of the respective parties, the CPD simply executes agreements made by the major party candidates and shields them from accountability for actions such as choosing sound-bite exchanges over real debate and excluding viable candidates from outside the dominant parties. The 32-page Kerry/Bush agreement forbids direct exchanges between candidates, limits follow-up questions and controls details right down to podium and camera angles.

Though few citizens’ know the full story, millions apparently recognize the events have ceased to be genuinely informative. From 1976 to 1984, 60-80 million viewers watched each debate hosted by the non-partisan League. But since then, Americans have tuned out the CPD’s staged events in droves. CPD events have averaged just 40 million viewers in the past two elections. Sixty percent of households tuned in to watch the Carter-Reagan debate in 1980 (in which candidates had a respectable 4 minutes per answer) compared to 30 percent of households dialing into the last Bush-Gore battle of 2 minute (maximum) sound bites in 2000. Though the numbers rebounded in the first 2004 debate, even with 60 million more potential U.S. viewers since 1984, viewership still is down.

What’s made the events so unappealing? The restrictive rules and shorter response times have enabled many scripted and evasive answers. Even the “town hall” debate is largely a facade, with CPD moderators screening questions from the pre-selected audience and forbidding any follow-up. The Kerry and Bush campaigns specified that the microphone must be cut if any participants deviate from the question approved by the moderator.

The lack of direct exchanges and moderators who stick tightly to standard stump speech topics may be the greatest injury to voters. Among key issues that never were mentioned in any 2000 presidential debate were: corporate power or corporate crime, the “drug war,” population growth, immigration and “free trade.” The only mention of labor referred to banning their soft money contributions. Will any moderator challenge the candidates about corporate power over elections or scandals like Halliburton and Enron this year? It will take exceptional courage as long as CPD events are staged for their owners’ benefit, not voters’.

And while more money than ever is being spent on youth voter registration, the CPD events send the message that their concerns don’t matter. While seniors and social security each were referenced more than 60 times during three debates in 2000, neither teenagers nor college students were mentioned at all — and every debate occurred on a college campus!

The narrow range of topics is linked to shutting out viable independent and “third party” candidates (except when both are convinced the outsider will help them, as with Ross Perot in 1992). For 2004, the major parties decreed that 15 percent of the public must indicate plans to vote for a candidate for him to be invited to the debate club. That’s an impossibly high bar, given that most news outlets never have mentioned that three candidates other than Bush, Kerry and Ralph Nader all have earned ballot positions in enough states to win an Electoral College majority (David Cobb, Green Party; Michael Badnarik, Libertarian Party; and Michael Peroutka, Constitution Party). Voters of every ideology lose when our choices are dictated by the two dominant parties.

This year, the organization I direct, Reclaim Democracy!, was proud to help launch a new and truly non-partisan Citizens’ Debate Commission (CDC) to challenge the CPD’s control and provide real debates, rather than sound-bite volleys. These debates would feature direct exchanges between candidates, set fair candidate participation criteria and address a wide range of pressing issues.

The CDC is supported by more than 60 civic groups as diverse as the American electorate, including leaders of the Free Congress Foundation, Judicial Watch, Youth Vote Coalition, Common Cause, the TransAfrica Forum and, tellingly, the former producer of the CPD debates. Yet most major media (with notable exceptions like the L.A. Times) have ignored the challenge entirely, much like the major parties deny voters’ rights to know their full options.

Simply exposing the CPD’s illegitimacy and directly challenging its control has forced it to adopt some of our plan, like varying moderators, lengthening rebuttal time, and allowing some follow-up questions and surrebuttals. It also led to the Memorandum of Understanding between candidates being released for the first time, which in turn produced more critical media coverage than ever before.

But that’s not enough when it comes to the single most influential forum for Americans trying to decide whether to vote and who to vote for. We all deserve debates that serve democracy, not two political parties. The Citizens’ Debate Commission is ready to serve that role and could well succeed by the next presidential election — if, that is, Americans step up and demand the change.

At the time of writing, Jeff Milchen directed Reclaim Democracy!, a non-profit organization working to revitalize American democracy. 

See our overview of the presidential debates and the need for reform.

Overview of Do-Not-Call Registry Litigation

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by ReclaimDemocracy.org Staff & Volunteers
Last updated October 4, 2004

Editors’ Note: If you seek detailed legal analysis of the DNCR case, see: Mainstream Marketing Services, et al. v. Federal Trade Commission: Resources and Legal Analysis

Introduction

Beneath the surface of the Do-Not-Call list dispute lie critical constitutional and democratic questions, such as: should corporations have free speech rights? Should courts consider economic impacts in evaluating whether a law is constitutional?

ReclaimDemocracy.org has compiled resources presenting all sides of this dispute and the larger issues of “commercial speech” and corporate claims to the protections of the U.S. Constitution. We do so because we believe it presents a key opportunity to re-examine the judicial creation of constitutional rights for corporations (corporate personhood) and explore how corporations use ill-gotten power to trump bona fide rights of citizens.

Background of the Do-Not-Call Registry (DNCR)

U.S. residents have tried to avoid unwanted phone solicitations with unlisted numbers, caller ID, voice mail, and other devices. Until recently, the burden rested on individuals to stop unwanted solicitations by spending time and money on these technologies and by requesting that they be added to company-specific”do not call” lists (a request telemarketers legally are obliged to honor). Despite these significant expenditures of time and money, many citizens complain they are losing control and are unable to defend their personal space.

In response, the Federal Trade Commission (FTC) created the national Do-Not-Call registry in 2003. The DNCR allows citizens to place their phone numbers on a national list controlled by the federal government. Under the law, it is illegal for commercial telemarketers to call people on the registry (however businesses may solicit recent customers who are on the list).

Citizens may register online at www.donotcall.gov or by phone. Three months after registration, commercial telemarketers are forbidden from calling you. Telemarketing companies are required to cover the costs of the program by purchasing the do-not-call lists from the government at a cost of $25 per area code and a $7,375 maximum annual charge. If a telemarketer makes an unauthorized call, the recipient can file a complaint, which the FTC will compile and use to fine or prosecute repeat offenders.

Telemarketing Corporations Sue to Block the Program

Telemarketing corporations filed two lawsuits attempting to stop implementation of the program. In the first, five telemarketing firms jointly argued that the Federal Trade Commission did not possess the legal authority to create and enforce the registry. On September 24, 2003, U.S. District Judge Lee R. West ruled for the telemarketers and prohibited the FTC from implementing the list and its associated restrictions. In response, the next day Congress approved legislation ratifying the authority of the FTC to enforce the no-call list, which George W. Bush promptly signed into law.

This Congressional save did not last long, however. Another group of telemarketing corporations (Mainstream Media Services, TMG Marketing, and American Teleservices Association) had filed a second lawsuit. On September 25 Denver-based U.S. District Court Judge Edward Nottingham decided that the registry unconstitutionally violates the telemarketing corporations’ “free speech rights.” Nottingham reasoned that no legal basis existed for the FTC to allow citizens to screen for-profit solicitors while not also offering citizens an opportunity to block calls from non-profit groups. So Nottingham prohibited the FTC from implementing the registry on October 1, 2003, the date it was supposed to take effect.

The FTC appealed the decision to the Tenth Circuit Court of Appeals. On October 7, a three-judge panel gave the FTC permission to enforce the registry while it decides whether to uphold or strike down Judge Nottingham’s decision. In doing so, the Tenth Circuit found that the FTC had a substantial chance of success on the merits of its appeal regarding the constitutionality of the DNCR.

The FTC reopened access to the registry on October 10, and it went into full effect on October 17. In addition, the Federal Communications Commission (FCC), which has overlapping jurisdiction with the FTC to protect citizens from telemarketing abuses, passed regulations under which it, too, can enforce the DNCR. The two agencies will coordinate enforcement. While the ultimate constitutionality of the registry hangs in the balance, the FTC already has issued civil fines to enforce the registry (see this pdf file for details).

Getting at the Core Issues

The DNCR dispute provides provocation to examine some extreme arguments made by the telemarketing industry:

1. Corporations enjoy commercial speech rights that are on par with, and may even take precedence over, the rights of people to enjoy peace and privacy in their homes.

2. The government must weigh the financial impacts of speech regulation on an industry as part of evaluating a law’s constitutionality. This is particularly disturbing given that telemarketing corporations voluntarily chose to create an industry based on breaching citizens’ privacy.

The inherent conflict between court-created “corporate rights” and the rights of human beings is growing. Consider this dualism: Corporations have obtained “intellectual property rights” to profit exclusively (with government enforcing their private monopoly) from the creations of employees–even for decades after an employees death. Access to, and use of, this information by others is limited because the government forcibly protects this lucrative proprietary information. Conversely, you have almost no power to protect your own personal information, such as your telephone number, e-mail addresses, home address, and personal financial information; and what little power you possess (excepting the DNCR) has required substantial time and effort to exercise. Courts have created corporate property rights allowing businesses to buy and sell this information without your consent.

The question for citizens is whether to accept corporate usurpation of human rights or to help revoke illegitimately-granted corporate privileges.

Updates: On October 4, 2004, without comment, the U.S. Supreme Court rejected an appeal by commercial telemarketers, which upheld the no-call list as constitutional.

Additional Resources

See our legal analysis of the Do-Not-Call Registry cases, with links to major briefs, court decisions and news coverage.

Learn more about Corporate Personhood