Reclaim Democracy!

The Shrouded Weapon of Patriotic Correctness

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August 22, 2020

Displaying his signature blend of victimhood and vitriol in a recent speech, President Trump accused political protesters of pushing a “cancel culture — driving people from their jobs, shaming dissenters, and demanding total submission from anyone who disagrees.” 

Put aside the hypocrisy of those words coming from a man who’s called for dozens of people to be fired for expressing opinions he dislikes. The more serious issue is the popular claim that “political correctness” presents a great threat to our freedom. In truth, its counterpart — patriotic correctness — suppresses dissent more widely and imposes greater consequences. 

Take the story of country music stars The Dixie Chicks. The three women band leaders never faced notable criticism of their Confederacy-friendly name. Yet the band downsized their name to The Chicks for their just-released album, Gaslighter, simply announcing, “we want to meet this moment.” 

Photo from Wikimedia Commons

Contrast that to 2003, when the band stepped out of line with country music political orthodoxy.

Days before the invasion of Iraq, vocalist Natalie Maines told a London audience, “We do not want this war, this violence, and we’re ashamed that the President [G.W. Bush] is from Texas.”

The backlash was immediate and savage as thousands of country music radio stations forbid DJs from playing The Chicks, slashing their record sales. Some groups staged events destroying recordings by The Chicks and band members received numerous death threats. 

The Chicks nearly vanished for years, but several multi-platinum albums granted them the wealth and power to resume their career years later. Their comeback single, “Not Ready to Make Nice,” defiantly rebuffed would-be suppressors. But less powerful country artists confirm the fear of getting “Dixie Chicked” influences everything from their lyrics to political engagement. That fear is just starting to ease nearly two decades later.

Performers identified as right-wing, like country star Toby Keith, may deter some invitations to perform with their stances, but face no such organized intimidation. Keith, However, took to projecting photos photos of Natalie Maines next to Saddam Hussein at his concerts (of course, they had never been in the same place) in an attempt to whip up hatred against her.

Patriotically correct doctrines include: American exceptionalism is unquestionable, even though we trail other wealthy nations in many key measures. Our military spending is untouchable. Service members should receive preferential treatment without regard to personal merit. And patriotism should be expressed with chest thumping and flag waving, not dissent that aims to illuminate and correct our biggest flaws.

The NFL is among the institutions enforcing those rules. When President Trump attacked Colin Kaepernick for this kneeling protest against police killings of Black people, the NFL didn’t merely fail to defend an employee, it effectively halted his career. Silencing one of the league’s most visible stars made it unnecessary to tell any athletes just trying to make a team to “shut up and play.” Message received.

And what is the playing of our national anthem at sporting events other than institutionalized patriotic correctness? In almost every other country, national anthems — sensibly — are played only for international sporting events.

Patriotic correctness is so omnipresent we rarely notice it and, like racial biases, practice it unconsciously. In an interview, liberal icon Justice Ruth Bader Ginsburg gave the patriotism police a gift by calling Kaepernick’s protest “dumb and disrespectful.” (Ginsburg later apologized after reflecting on her act.)

Meanwhile, right-wing grifters like Milo Yiannopoulos play the victim when they lose lucrative speaking gigs for business reasons, failing to fulfill contractual promises, or when college students organize to stop their fees from being transferred to such self-promoting provocateurs.

As Alex Nowrasteh of the libertarian Cato Institute says, “every group has implicit rules against certain opinions, actions and language as well as enforcement mechanisms — and the patriotically correct are no exception. [But] they are near-uniformly unaware of how they are hewing to a code of speech and conduct similar to the PC lefties they claim to oppose.”

To be clear, political correctness can do harm to the free exchange of ideas, and too many Americans are ready to judge others for a careless utterance, but the patriotic correctness unleashed on The Chicks is both more pervasive and severe than any progressive pressure.

The Chicks blacklisting yielded only a setback — one they had the power to overcome by virtue of their previous success, but their persecution silenced many more vulnerable people. 

The most powerful suppression of speech is accomplished through implied threat and voluntary compliance, not punishment.

Jeff Milchen (@JMilchen) founded Reclaim Democracy! and the American Independent Business Alliance.

Chevron Corporation Caught Scheming to Pit Minorities Against Greens

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Corbin Hiar, E&E News
June 18, 2020

It was an audacious messaging campaign: White environmentalists are hurting black communities by pushing radical climate policies that would strip them of fossil fuel jobs.

The email to journalists, sent by a public affairs firm at the height of national protests over systemic racism earlier this month, accidentally contained the name of a high-profile client.

It was Chevron Corp.

The Virginia-based communications firm, named CRC Advisors, urged journalists to look at how green groups were “claiming solidarity” with black protesters while “backing policies which would hurt minority communities.”

“Despite this claimed solidarity, environmental organizations, composed of predominantly white members, are backing radical policies like the Green New Deal which would bring particular harm to minority communities,” wrote John Gage of CRC in an email sent to media outlets including E&E News.

The story pitch included an offer to connect journalists with black conservatives who oppose the Green New Deal, a sweeping government jobs program advanced by progressive lawmakers who champion environmental justice issues for communities of color.

The email ended with a revealing tagline.

“If you would rather not receive future communications from Chevron, let us know by clicking here.”

Chevron denied involvement in the messaging campaign, but the email’s accidental nod to the oil giant is renewing suspicions among activists and academics that Chevron’s public statements about climate change fail to match its lobbying activities. While Chevron has promised to do more to slow rising temperatures, observers view the email as a shadowy continuation of the fossil fuel industry’s past efforts to undercut legislation aimed at reducing greenhouse gas emissions.

“Chevron’s fingerprints appear to be on this,” said Naomi Oreskes, a Harvard University history professor and the co-author of “Merchants of Doubt,” a 2010 book about how scientists with ties to Big Oil worked to obscure the truth about global warming.

Oreskes described previous instances of oil and gas companies working with communications firms to advance industry talking points. But the CRC effort is remarkable, she said, for trying to leverage national unrest about systemic racism and police violence to promote an expansion of oil and gas drilling.

“There’s no socially acceptable language to describe how despicable this is,” she said. “It’s hard for me to contain my fury.”

Chevron, a longtime CRC client whose shareholders recently called on the oil major to detail its lobbying on climate change, says it had nothing to do with the message.

“Thanks for the opportunity to clarify the situation,” Chevron spokesman Sean Comey said in an email.

‘A clerical error’

The email received by an E&E News journalist on June 3 included quotes from two black conservatives who oppose the Green New Deal.

They were Ken Blackwell, a Republican who served as Ohio’s secretary of state in the late 1990s and has gone on to stump for a wide variety of conservative causes, and Derrick Hollie, a former advertising executive.

The email portrayed CRC as playing a helpful role in distributing Blackwell’s and Hollie’s concerns with the climate plan and its effect on black communities.

Instead, the firm appears to have organized the campaign. Hollie, who said he doesn’t personally know Blackwell, revealed that CRC approached him with the idea.

“They was like, ‘Derrick, would you mind being a part of something that we’re working on?’ I said, ‘Absolutely.’ And they asked me to put together a quote,” Hollie said in a phone interview.

“I didn’t know what they were going to do with it,” he added. “I figured they were going to put it in an op-ed or something like that.”

Gage, the account executive at CRC, said in an email to E&E News that he had contacted journalists “on behalf of Mr. Blackwell and Mr. Hollie regarding this issue and inadvertently attached a disclaimer from another client’s media list onto that email.”

“This was, in effect, a clerical error,” Gage said.

The Green New Deal is a conceptual resolution that calls for a sweeping public jobs program and asserts that the government should “achieve net-zero greenhouse gas emissions through a fair and just transition for all communities and workers” in a decade’s time.

That would require overhauling the nation’s oil-dependent transportation system “to remove pollution and greenhouse gas emissions” and invest in “zero-emission vehicle infrastructure and manufacturing; clean, affordable, and accessible public transit; and high-speed rail,” the proposal says.

Chevron hasn’t directly lobbied on the Green New Deal, but it has pressed members of Congress and the Trump administration about “Energy Transitions, technology, and climate change,” lobbying disclosures show.

Energy prices — another major focus of the CRC pitch — are also an issue Chevron has lobbied on.

“Radical policies like the green new deal that raise the cost of driving to work and heating our homes would target the African-American community and … would make us even more vulnerable and marginalized than we already are,” Blackwell said in the email sent by CRC. He is currently an adviser to Trump’s reelection campaign and senior fellow at the Family Research Council, an anti-abortion group.

Blackwell’s quote was partially featured in the headline of a June 4 story on the website of the conservative The Daily Wire.

‘White environmental extremists’

Hollie is the president of Reaching America, a nonprofit group whose tax-exempt status was revoked by the Internal Revenue Service in 2017 because it repeatedly failed to file required annual reports.

Since then, Hollie has testified twice in the House Natural Resources Committee against efforts to transition the U.S. economy away from fossil fuels. At a February 2019 hearing, he denied receiving any funding from fossil fuel companies or corporations.

“With black communities ablaze, the same nearly uniformly white environmental extremists assure us of their solidarity while at the same time trying to kill high-paying oil and gas jobs that have been the cornerstones of progress in lifting up working-class minority communities,” Hollie was quoted as saying in the CRC email to journalists. “Any program such as their Green New Deal that makes energy more expensive or jeopardizes jobs is counter-productive, reckless, and wrong.”

To be sure, the environmental movement has struggled with its own racial disparities. The largest green groups are overwhelmingly white, and they have historically overlooked communities of color when trying to reduce pollution. Some have racist pasts (Greenwire, June 5).

But people of color are also underrepresented in much of the oil and gas industry. For example, a 2016 report by the University of Massachusetts, Amherst, found the oil and gas business to be “among the worst in terms of employment and earning equity for women, African American and Hispanic populations.”

Reaching America is based in Bennsville, Md., but its sparse website is registered to Domains By Proxy LLC, an Arizona firm that shields the identities of web address owners.

CRC also has a limited online presence.

The group is led by Leonard Leo, President Trump’s informal adviser on judicial nominees, and Greg Mueller, a conservative communications executive. The firm recently hired two Trump White House communications staffers and a Fox News veteran. CRC’s website lists no staff, clients or contact information.

Although Hollie and his group have a long history with CRC, he denied having a formal role with the firm.

“Hell no! I wish I did,” he said with a laugh. “This guy named Jay Hopkins is who I deal with.

“I knew CRC had an energy client,” he added. “I didn’t know it was Chevron.”

Hopkins, a senior account manager at CRC, has deep ties to the fossil fuel industry.

Prior to working at CRC, Hopkins did communications for Citizens for a Sound Economy, a think tank established in 1984 by the oil barons Charles and David Koch. The group eventually split and formed the tea party groups FreedomWorks and Americans for Prosperity.

In 2002, Hopkins joined CRC, which was previously known as Creative Response Concepts and CRC Public Relations.

During his time at CRC, he “identified and recruited third-party organizations to serve as surrogates for clients,” “wrote and placed client op-eds in top-line publications,” and “cultivated strong relationships with journalists nationwide, particularly focusing on reporters in energy,” according to his LinkedIn profile.

Blackwell, the former Ohio secretary of state, has written numerous op-eds over the years in support of the U.S. oil and gas industry as well as Chevron and other CRC clients.

In a 2012 Reuters blog post, Blackwell described Brazilian authorities’ attempt to penalize Chevron for a 3,600-barrel oil leak off the coast of Rio de Janeiro as “one of the most shameless shakedowns of an American company by another country in recent memory.”

After a two-year legal battle, a federal judge in Brazil ordered the California-headquartered company to pay around $135 million in compensatory actions (Greenwire, Oct. 2, 2013).

Blackwell didn’t respond to calls or emails for comment. Hopkins didn’t respond to emailed questions about his work at CRC.

Hollie, meanwhile, said that Reaching America works with organizations across the political spectrum.

“I don’t appreciate being used as a racial pawn during this time and would appreciate if you leave me out of your vendetta against Chevron and CRC,” he said in a follow-up email.

‘Not being candid’

Experts on corporate influence campaigns suggest that CRC is engaged in a shadowy campaign to shape federal policy on climate change.

The firm may be “attempting to influence public policy surreptitiously using industry money,” said Marcus Owens, a partner at the law firm Loeb & Loeb LLP. “I’ve been doing this for nearly 50 years now, so I think I have a fairly well-developed sense of who’s not being candid.”

The involvement of the former Ohio secretary of state, in particular, was an indicator for Owens, the former head of the nonprofit division at the IRS.

“You don’t hire Ken Blackwell if what you want to do is run a soup kitchen or truly educate people about anything,” he said. “You hire him if you want to run a political organization and you want to court industry or people who donate to right-of-center causes.”

What CRC did is a textbook example of the “most unethical type of PR,” according to Pallavi Kumar, a communications professor at American University.

“It’s just a way where they put together a coalition and therefore you think it’s something, but it’s done by a corporation,” said Kumar, who worked in corporate public relations for two decades before becoming an academic. “To me, they really screwed up by showing it’s coming from Chevron.”

Kumar got her start in PR at E. Bruce Harrison Co., which helped promote the Global Climate Coalition. Prior to its dissolution in 2002, the industry group was opposed to reducing greenhouse gas emissions and was supported by Chevron. (Kumar says she did not work on that account.)

The oil major’s ongoing involvement with CRC is troubling to some of the company’s shareholders.

“If Chevron is hiring public relations companies that are putting out a message that is contrary to what the company is publicly espousing, that is a concern,” said Danielle Fugere, the president of As You Sow. “Just hiring these individuals or these groups for public communications purposes raises red flags.”

Her shareholder advocacy group backed a climate lobbying proposal put forth by the French investment group BNP Paribas Asset Management at Chevron’s annual shareholder meeting last month.

It called for the oil company’s board of directors to issue a report describing “if, and how, Chevron’s lobbying activities (direct and through trade associations) align” with the goal of the Paris Agreement, which calls for limiting average global warming to well below 2 degrees Celsius.

Chevron’s board urged shareholders to vote against the resolution because the company “shares the concerns of governments and the public about climate change risks” and “adheres to the highest ethical standards when engaging in lobbying and political activities.”

A majority of its investors, however, backed the proposal (Energywire, May 28).

Comey, the Chevron spokesman, indicated that the company doesn’t plan to detail its work with CRC in the climate lobbying report shareholders requested.

“They help us with communications,” he wrote, referring to CRC. “They are not involved in lobbying.”

Kumar, of American University, described CRC’s work this way: “Stealth lobbying, AstroTurf lobbying, front groups.”

While those tactics aren’t new, the focus of the campaign surprised her. The firm is trying to take advantage of the Black Lives Matter movement, she said.

David Pellow, the African-American director of the University of California, Santa Barbara’s global environmental justice project, argued that Chevron’s involvement with CRC shows the oil company is more focused on countering support for the Green New Deal than helping communities of color.

With the U.S. in recession and tens of millions of Americans out of work, “the Green New Deal is now looking much more reasonable as a proposal,” he said. “And that’s got to have big polluters worried.”

Chevron has been criticized for its slow response to the widespread protests over police violence against people of color. The company released a statement on racial injustice on June 5 — two days after CRC pitched a story attacking a resolution that seeks to address that issue and combat climate change.

Comey said that “it’s important that we face and address the systemic racism and discrimination that denies African Americans equal access to opportunities for advancement.”

Chevron, he added, is leading by example: “For more than 25 years, diversity and inclusion have been a part of our corporate culture.”

But Pellow, who is also the chairman of UC-Santa Barbara’s environmental studies department, said the company’s actions speak louder than its words.

“If you’re perpetrating climate disruption, as Chevron is, then you’re also perpetrating racial injustice,” he said. People of color “the world over are being harmed disproportionately by climate change.”

© 2020 E & E News

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Time to Reverse Corporate “Constitutional Rights”

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By Representative Pramila Jayapal
February 5, 2020

This past fall, Amazon challenged the proudly progressive character of my home city, Seattle, pouring $1.5 million into its City Council elections.

In doing so, Amazon placed not just a thumb but also a fistful of cash on the scales of our democracy. Thanks to immediate organizing on the ground and the speaking out of elected officials, the cynical and last-minute corporate spending on elections backfired: Nearly all of the Amazon-backed candidates lost their races.

However, on this 10th anniversary of the US Supreme Court ruling in Citizens United v. Federal Election Commission that catalyzed our current era of super PACs and corporate power, the clear danger posed by money in politics is real. Citizens United vastly expanded the rights of corporate entities and the super-wealthy to spend or invest their money to influence political elections and deepened the corrupting electoral influence of big money.

In the 10 years since Citizens United, we’ve seen newly created super PACs and “dark money” political nonprofits spend staggering sums, taking in unlimited donations without having to disclose them. While they cannot coordinate their spending with specific candidate campaigns, they can spend on political attack ads and other forms of political influence. From 2010 to 2018, super PACs spent roughly $2.9 billion on federal elections while dark-money spending rose from $129 million in the period from 2000 to 2008 to $964 million from 2010 to 2018.

It is important to note that Citizens United was not the first time political money in elections has been equated with “free speech” and corporations have been equated with people with constitutionally protected rights. The claim that corporate entities are legal persons with constitutional “rights” has been around for over a century.

Political money as free speech originated in the 1976 Buckley v. Valeo decision, while corporate political free speech rights began with the 1978 First National Bank v. Bellotti ruling.

But corporate constitutional rights extend beyond First Amendment free speech rights. Corporate constitutional rights began in the 1880s when Supreme Court Justices hijacked the Bill of Rights and the 14th Amendment—intended to guarantee equal protections for black Americans—claiming the rights of people also applied to corporate entities. Courts also interpreted sections of the original Constitution to protect corporate “rights” over those of people and communities, even though corporate entities are not mentioned anywhere in our Constitution.

The collective consequences of this have been devastating.

The corporate First Amendment “right not to speak” means that consumers may end up knowing less about what’s in the food they eat. The corporate First Amendment religious “right” granted in the 2014 Hobby Lobby decision gives a for-profit corporation the right to deny reproductive health care coverage based on religious belief.

The corporate Fourth Amendment search and seizure “rights” prevents warrantless inspections of many businesses to ensure safe working and environmental protections.

The corporate Fifth Amendment takings “rights” defines certain corporate regulations that protect private land as a “taking,” with the corporation being justly compensated for lost current and/or future profits.

Therefore, any full remedy to the questions of money into elections must address not only the immediate effects of Citizens United but also the entirety of corporate constitutional rights.

That is why in 2019, I introduced House Resolution 48, the We the People Amendment calling for ending all corporate constitutional rights—as well as political money as free speech.

The flood of money into elections following Citizens United and other court decisions has eroded public trust in our elected leaders to seriously address issues like health care, climate change, wealth inequality, guns, and infrastructure. Only by ending all of these corporate constitutional rights and the corrupting influence of political money as “free speech” can we have a government that represents all of us rather than only the interests of the super-wealthy.

The We the People Amendment (HJR 48), co-sponsored by 67 of my House colleagues, enjoys widespread support with the American public. The national group Move to Amend has been educating and organizing citizens across the country, building an authentic, grassroots movement seeking a systemic solution to address the harms of Citizens United.

The American people urgently want us to return our government back to the people instead of the highest bidders. It’s up to all of us to make that happen.

Pramila Jayapal represents Washington’s 7th District in the United States House of Representatives.

Dying to Vote (And a Warning for November)

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By Jeff Milchen
April 7, 2020

Three years ago today, Mitch McConnell and the Republican Party completed the heist of the century — confirming Neil Gorsuch to occupy a U.S. Supreme Court seat held open for more than a year. Now Gorsuch’s decisive vote is forcing thousands of Wisconsin citizens to make an unconscionable choice: sacrifice your vote or risk your life to be counted.

Accurately describing yesterday’s malicious ruling by the Court is almost impossible to do without sounding hyperbolic. By a 5-4 vote, the Justices ruled that voters who requested an absentee ballot, but have not yet received it (at least several thousand citizens), must line up with masses of people to vote in-person. This despite a statewide order banning non-essential travel and gatherings of more than 10 people. So people not only are forced to choose between being disenfranchised and risking COVID-19, but must violate a State order to go to the polls!

The SCOTUS sided with Republican Party plaintiffs in reversing a U.S. District Court ruling that extended the deadline for absentee ballots — it gave voters one week after today to receive and return absentee ballots. That followed Wisconsin Republicans refusing to approve a plan to send ballots to all registered voters. Instead, citizens had to request ballots individually, and more than one million did, leaving the State completely unable to fulfill the requests.

The Republicans’ disenfranchisement tactics aren’t motivated by intra-party primaries, but a hotly contested State Supreme Court contest and other “non-partisan” races.

Extreme gerrymandering enabled Republicans to control the Wisconsin legislature despite being beaten by 10 percent of total votes in the 2018 elections. A State Supreme Court not dominated by Republican judges would likely strike down those gerrymanders, driving the imperative to close the circle by suppressing voters likely to vote for Democrats. 

When politicians choose their voters, entire elections are undermined. In the 2020 Wisconsin State Assembly race, Democrats received 200,000 more votes than Republicans; however, Republicans swept seats.

Governor Tony Evers convened a special session of the legislature in hope of forging a bipartisan agreement to postpone the election and enable voting by mail, but Republicans refused to consider any action.

As if being forced to vote in person during a pandemic isn’t hellish enough, Milwaukee will open no more than five out of a normal 180 polling places today. It seems most poll workers weren’t eager to risk their lives for some extra pocket money. With projected turnout, 10,000 or more voters could jam the locations, making safe “distancing” impossible.  

Image by The Onion

In Milwaukee County, more than 1300 residents have COVID-19 cases and 45 have died. As of Friday, 81 percent of the dead were black, while black and Hispanic residents vastly outnumber whites in the City.

In a separate legal fight that could have eliminated the need for the SCOTUS ruling, Wisconsin Governor Evers issued an executive order yesterday suspending in-person voting until June 9 due to the severe public health threat. But Republican legislators immediately challenged the order with the Wisconsin Supreme Court. In a 4-2 ruling, the Court blocked Evers’ decree and opened the door for the SCOTUS to strike down the absentee voting extension.

No Justice signed their name to the SCOTUS’ majority opinion, which is no surprise to anyone who reads the wafer-thin reasoning. The majority declared extending the date by which absentee ballots could be received and counted violates the Constitution because it “fundamentally alters the nature of the election” too close to Election Day. Apparently, voters failing to receive a ballot does not rise to the level of election-altering.

The majority opinion by Justices Roberts, Alito, Gorsuch, Kavanaugh and Thomas mentions the COVID-19 pandemic only in closing and slinks away from the fundamental issue by saying, “the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.” Don’t forget: these Justices cancelled hearings as of April to ensure their own safety.

The denial of responsibility directly echoes Bush v Gore, but this time, some voters may catch a virus and die.

Of course, the Republican tactics not only are an assault on democracy in Wisconsin, but a warning for our national elections this fall. Donald Trump repeatedly has attempted to undermine confidence in elections, raised baseless claims that mail-in voting would invite voter fraud, and endorsed numerous schemes to disenfranchise poor people and minorities. 

Map of states with mail-in voting
Graphic by Daily Kos

And five Supreme Court Justices have proven they’re willing to ignore clear evidence of discriminatory impacts to poor and minority citizens — at least without video of the perpetrators confessing racist intentions. 

While most Americans already are challenged by the daily grind of staying afloat financially while surviving a pandemic, planning to thwart corruption like Wisconsin’s in the November election is essential. One place to start is checking to see if your state has (at least) no-excuse voting by mail and, if not, loudly demanding it (or universal vote-by-mail). Publicizing potential pitfalls with mail-in-voting is also essential to plan ahead.

And while it won’t be achieved this year, those of us who value democracy need to stop solely playing defense against the endless array of vote suppression tactics devised by Republicans. We should shift significant energy toward driving an affirmative right to vote into the U.S. Constitution via Amendment. Working to place it in each state’s Democratic, Green and other party platforms this year is a fine first step in that process. 

Jeff Milchen founded Reclaim Democracy! He is an organizer, speaker ,and writer helping to advance entrepreneurship, grassroots democracy, and self-reliant communities. Engage him on Twitter at JMilchen

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President Reagan’s View on Immigration

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From his final speech as President. The entire transcript from the Presidential Medal of Freedom award ceremony is posted at the Reagan Library.

January 19, 1989: Now, tomorrow is a special day for me. I’m going to receive my gold watch. And since this is the last speech that I will give as President, I think it’s fitting to leave one final thought, an observation about a country which I love. It was stated best in a letter I received not long ago. A man wrote me and said: “You can go to live in France, but you cannot become a Frenchman. You can go to live in Germany or Turkey or Japan, but you cannot become a German, a Turk, or a Japanese. But anyone, from any corner of the Earth, can come to live in America and become an American.”

Ronald Reagan quote graphic

Yes, the torch of Lady Liberty symbolizes our freedom and represents our heritage, the compact with our parents, our grandparents, and our ancestors. It is that lady who gives us our great and special place in the world. For it’s the great life force of each generation of new Americans that guarantees that America’s triumph shall continue unsurpassed into the next century and beyond. Other countries may seek to compete with us; but in one vital area, as a beacon of freedom and opportunity that draws the people of the world, no country on Earth comes close.

This, I believe, is one of the most important sources of America’s greatness. We lead the world because, unique among nations, we draw our people — our strength — from every country and every corner of the world. And by doing so we continuously renew and enrich our nation. While other countries cling to the stale past, here in America we breathe life into dreams. We create the future, and the world follows us into tomorrow. Thanks to each wave of new arrivals to this land of opportunity, we’re a nation forever young, forever bursting with energy and new ideas, and always on the cutting edge, always leading the world to the next frontier. This quality is vital to our future as a nation. If we ever closed the door to new Americans, our leadership in the world would soon be lost.

A number of years ago, an American student traveling in Europe took an East German ship across the Baltic Sea. One of the ship’s crewmembers from East Germany, a man in his sixties, struck up a conversation with the American student. After a while the student asked the man how he had learned such good English. And the man explained that he had once lived in America. He said that for over a year he had worked as a farmer in Oklahoma and California, that he had planted tomatoes and picked ripe melons. It was, the man said, the happiest time of his life. Well, the student, who had seen the awful conditions behind the Iron Curtain, blurted out the question, “Well, why did you ever leave?” “I had to,” he said, “the war ended.” The man had been in America as a German prisoner of war.

Now, I don’t tell this story to make the case for former POW’s. Instead, I tell this story just to remind you of the magical, intoxicating power of America. We may sometimes forget it, but others do not. Even a man from a country at war with the United States, while held here as a prisoner, could fall in love with us. Those who become American citizens love this country even more. And that’s why the Statue of Liberty lifts her lamp to welcome them to the golden door.

It is bold men and women, yearning for freedom and opportunity, who leave their homelands and come to a new country to start their lives over. They believe in the American dream. And over and over, they make it come true for themselves, for their children, and for others. They give more than they receive. They labor and succeed. And often they are entrepreneurs. But their greatest contribution is more than economic, because they understand in a special way how glorious it is to be an American. They renew our pride and gratitude in the United States of America, the greatest, freest nation in the world — the last, best hope of man on Earth.

The Arbitration Gambit: The Corporate Takeover of Our Justice System

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It used to be anybody who forged a banking transaction would end up in deep legal trouble. Not anymore – at least if you’re a banker. You might get fired as four senior Wells Fargo managers were recently. But the police won’t be looking for you.

What’s worse, if you are a victim of the fraud, there maybe little you can do about it, because the corporations have come up with a new legal “get out jail free card”  they can use to insulate themselves from responsibility for a wide variety of crimes in almost any line of business.

The fired Wells Fargo executives were implicated in a scheme in which the bank created up to two million phony accounts in the names of its customers without their knowledge. The company then charged the legitimate accounts of those customers for fees created by the fake ones. This went on for about a decade until it was exposed last year.

Although the bank paid a federal fine, no one at Wells is being prosecuted. The CEO, John Stumpf, retired with  $124 million in stock and other benefits — on top of his generous salary.

The bank did fire 5300 workers who created fake accounts under intense pressure to meet sales goals not achievable through ethical sales practices. Yet the supervising executive in charge of the branches, Carrie Tolstedt, retired at the end of last year after being paid $27 million dollars over the last three years (not including stok bonuses). 

So what about the customers who were defrauded? Although the amount each of them lost was relatively small, usually about $25, many of them are understandably outraged and have sued the bank. Ordinarily, no one could afford to take on a large corporation for a $25 fraud claim. Instead the lawyers for the bank’s victims used a “class action lawsuit” in which they can represent large numbers of clients in a single case.

But buried in the agreement customers signed when they opened their accounts was a phrase stipulating all disputes with the bank would be settled through binding arbitration, in which the parties argue before a supposedly independent arbitrator who makes the decision. The arbitrator’s ruling typically cannot be appealed to a public court.

© Mike Luckovich, Atlanta Journal-Constitution

In practice, arbitration favors the corporation contracting the arbitration firms, since those companies depend on repeat business from their corporate clients. However, the arbitration rules don’t offer any protection from these potential conflict of interests.

The problem for the victims of Wells Fargo’s fraud isn’t just that they are unlikely to get a fair shake in arbitration. They won’t get a hearing at all because almost all of these agreements prohibit any kind of class action. Instead each individual has to bring his or her case on their own. This would mean spending thousands of dollars and huge amounts of time to seek restitution for a $25 theft. And if the arbitrator rules against them, they may be liable for a big bill from their lawyer and the arbitrator.

These binding arbitration agreements have spread like a plague since a pair of Supreme Court decisions in 2011 and 2013. They affect just about any business one does with a large corporation including Amazon, Netflix, Travelocity, eBay and DirecTV, AT&T and countless others.

According to a multipart series on arbitration in the New York Times, the legalization of the binding arbitration gambit was the goal of a “Wall Street-led coalition of credit card companies and retailers.” In 2011 the Court handed down the first of the two crucial decisions, AT&T LLC v. Concepcion, that made get out of jail free a reality. By that time one of the lawyers who worked with the coalition, John G. Roberts Jr. was the Court’s Chief Justice.

The Roberts Court overturned a California state court decision declaring AT&T’s arbitration agreement an “unconscionable contract” because it exempted  the “party with superior bargaining power” from “responsibility for [its] own fraud.” In doing so, the California court’s decision was in keeping with a centuries-old legal tradition concerning unfair contracts.

But the Supreme Court twisted the meaning of a 1925 federal law that simply established the legal standing of arbitration agreements except as long as they don’t violate the legal standards applicable to contracts in general. Instead, the Court decided the law placed the goal of “efficient, streamlined procedures” to solve disputes ahead of any concerns about fraud.

The lower courts responded by throwing out hundreds of class action suits and the number of cases brought by consumers and small businesses dropped precipitously. Then in a 2013 decision, American Express Company v. Italian Colors Restaurant, the court denied a claim by a restaurant owner that an arbitration clause the company inserted into its credit card contract violated antitrust laws. The dissenters on the court made it clear what this decision  meant: “The monopolists gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”

Forced arbitration is also a threat to individual victims of corporate crimes who are not part of class action suits. According to the Times, arbitration has impeded legal redress for people dealing with private schools and colleges, doctors, home construction firms, cemeteries and nursing homes.

Binding arbitration is also becoming common in employment contracts. The Times described the experience of a doctor who sued the medical group that employed her for workplace discrimination. When she showed the company had destroyed evidence, the arbitrator fined the company $1,000 and then billed the doctor $2,000 for the time he spent looking into it. When the arbitrator decided in favor of the employer, the doctor was stuck with a $200,000 legal bill, including $58,000 she owed the arbitrator.

Wells Fargo recently agreed to a $110 million settlement with customers victimized by the phony account scheme. It did so despite having successfully played its get out of jail card in court because its management decided to counter the bad publicity. As the bank’s new CEO Tim Sloan explained, the settlement is “another step in our journey to make things right with customers and rebuild trust.”

With forced arbitration, individual citizens as well as small and medium-sized business are being rendered legally powerless against the hostile corporate takeover of a large part of our civil justice system. But there is a silver lining in all of this. The Supreme Court’s rulings rest on the slender reed of a single law. The federal government could nullify those rulings by enacting a new law making it clear the Federal Arbitration Act does not support “unconscionable” contracts.

Getting such changes passed will not be an easy task in the current political environment. On the other hand, the arbitration gambit also creates an opening for a counter move. This issue affects almost everybody who is not extremely wealthy regardless of their race, religion, class or political belief. They can demand that their representatives fix this law. Regardless of whether or not the fix is enacted,  a broad cross section of citizens will find out who in Washington is working on their behalf and who isn’t.

Jeffrey Kaplan writes from the San Francisco Bay Area