Reclaim Democracy!

Executive Order 13303

by

Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq Has an Interest

From page 31931 of the Federal Register. Signed May 22, 2003

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act, as amended (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 5 of the United Nations Participation Act, as amended (22 U.S.C. 287c) (UNPA), and section 301 of title 3, United States Code,

I, GEORGE W. BUSH, President of the United States of America, find that the threat of attachment or other judicial process against the Development Fund for Iraq, Iraqi petroleum and petroleum products, and interests therein, and proceeds, obligations, or any financial instruments of any nature whatsoever arising from or related to the sale or marketing thereof, and interests therein, obstructs the orderly reconstruction of Iraq, the restoration and maintenance of peace and security in the country, and the development of political, administrative, and economic institutions in Iraq. This situation constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States and I hereby declare a national emergency to deal with that threat.

I hereby order:

Section 1. Unless licensed or otherwise authorized pursuant to this order, any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is prohibited, and shall be deemed null and void, with respect to the following:

(a) the Development Fund for Iraq, and (b) all Iraqi petroleum and petroleum products, and interests therein, and proceeds, obligations, or any financial instruments of any nature whatsoever arising from or related to the sale or marketing thereof, and interests therein, in which any foreign country or a national thereof has any interest, that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons.

Sec. 2. (a) As of the effective date of this order, Executive Order 12722 of August 2, 1990, Executive Order 12724 of August 9, 1990, and Executive Order 13290 of March 20, 2003, shall not apply to the property and interests in property described in section 1 of this order.

(b) Nothing in this order is intended to affect the continued effectiveness of any rules, regulations, orders, licenses or other forms of administrative action issued, taken, or continued in effect heretofore or hereafter under Executive Orders 12722, 12724, or 13290, or under the authority of IEEPA or the UNPA, except as hereafter terminated, modified, or suspended by the issuing Federal agency and except as provided in section 2(a) of this order.

Sec. 3. For the purposes of this order:

(a) The term “person” means an individual or entity; (b) The term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization; (c) The term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United

[Page 31932]

States or any jurisdiction within the United States (including foreign branches), or any person in the United States; (d) The term “Iraqi petroleum and petroleum products” means any petroleum, petroleum products, or natural gas originating in Iraq, including any Iraqi- origin oil inventories, wherever located; and (e) The term “Development Fund for Iraq” means the fund established on or about May 22, 2003, on the books of the Central Bank of Iraq, by the Administrator of the Coalition Provisional Authority responsible for the temporary governance of Iraq and all accounts held for the fund or for the Central Bank of Iraq in the name of the fund.

Sec. 4. (a) The Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and the UNPA as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government. All agencies of the United States Government are hereby directed to take all appropriate measures within their statutory authority to carry out the provisions of this order.

(b) Nothing contained in this order shall relieve a person from any requirement to obtain a license or other authorization in compliance with applicable laws and regulations.

Sec. 5. This order is not intended to, and does not, create any right, benefit, or privilege, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.

Sec. 6. This order shall be transmitted to the Congress and published in the Federal Register.

(George W Bush’s Signature)

THE WHITE HOUSE, May 22, 2003.

Read a Critical Analysis of Executive Order 13303

Rank Divides America

by

By Robert W. Fuller
First published by Newsday, August 3, 2003

The recent Supreme Court decision on the University of Michigan Law School’s use of race in the admissions process has stirred up an all-too-familiar controversy. By what means can we deliver on Thomas Jefferson’s proposition that “all men are created equal”? While the decision upheld a limited place for affirmative action, it was the hope of Justice Sandra Day O’Connor that 25 years from now affirmative action “will no longer be necessary.”

Without question, affirmative action has given teeth to the goal of equal opportunity. But it alone cannot bring about the society O’Connor hopes for because it fails to address a problem more fundamental than racism, sexism and the variety of other “isms” that still plague us. What underlies all these forms of discrimination is something less conspicuous but no less profound in its consequences. It is rank – in particular, low rank signifying a lack of power.

The most significant unexplored rift dividing America today – one that cries out for our attention – is not that of race, gender, age or religion. Rather, it is the gap between the “somebodies” – the relatively powerful and successful – and the “nobodies” – the relatively weak and vulnerable. The nobodies are not just another in the litany of identity groups. There is something different about this grouping, because each and every one of us can be a member of it just as all of us have at some point nominated someone else for inclusion.

It happens every day. A boss harasses an employee. A customer demeans a waiter. A coach bullies a player. A doctor disparages a nurse. A teacher humiliates a student. A parent belittles a child. Somebodies with higher rank and more power in a particular setting can maintain an environment that is hostile and demeaning to nobodies with lower rank and less power in that setting, much as most everywhere whites used to be at liberty to mistreat blacks.

Some 35 years of affirmative action have put racists and sexists on notice. But there has been no corresponding outcry against abuses that occur within a race or gender. Blacks insult and exploit other blacks of lower rank, whites do the same to whites and women to women, all with confidence that it will pass as business as usual.

We don’t have a ready name for abuse and discrimination based on rank, but it deserves one. When discrimination and injustice are race-based, we call it racism; when they’re gender-based, we call it sexism. By analogy, rank-based abuse and exploitation can be called “rankism.” Naming rankism, putting it in the spotlight, is half the battle.

Rankism occurs when rank-holders use the power of their position to secure unwarranted advantages or benefits for themselves. It typically takes the form of self-aggrandizement and exploitation of subordinates. It is the opposite of service. Good leaders eschew rankism; bad ones indulge in it. It can be found in governments, businesses, families, workplaces, schools and universities, as well as religious, nonprofit and health-care organizations. It distorts personal relationships, erodes the will to learn, fosters disease, taxes productivity, undermines public trust, stokes ethnic hatred and incites revenge. Recent front-page examples of rankism include corporate and philanthropic corruption, sexual abuse by clergy, school hazing, and abuse of elders.

At the societal level, rank-based discrimination afflicts none more inescapably than those lacking the protections of social rank – the working poor. Two recent books chronicle this widening fissure. In “Nickel and Dimed: On (Not) Getting By in America,” Barbara Ehrenreich makes a compelling case that the working poor are in effect unacknowledged benefactors whose labor subsidizes the more advantaged. In “Wealth and Democracy: A Political History of the American Rich,” Kevin Phillips explores how the rich and politically powerful create and perpetuate privilege at the expense of the middle- and lower classes.

I am not in any way proposing that we do away with rank. This would make about as much sense as doing away with race or gender. When earned and exercised appropriately, rank is a legitimate, virtually indispensable tool of an organization. But when the high-ranking abuse their authority, those of lower rank experience discrimination and injustice not different in their material and psychological effects from the discrimination and injustice we now disallow when their victims belong to the familiar identity groups.

To achieve a just society, we have to decide what it means to be a nation of equals. Indeed, at first glance, such a goal might seem absurd. How can we be equals when we are obviously unequal in skill, talent, beauty, strength, health and wealth – in any commonly recognized trait for that matter? The answer is that people are equal in a sense they have always considered fundamental to being human: They are equal in dignity.

This is not some utopian ideal. As Vartan Gregorian, president of the Carnegie Corporation of New York, once put it: “Dignity is not negotiable.” Rankism is invariably an insult to the dignity of an individual or group. If the aggrieved party dare not protest, it will nurse its wounds until a time when it can exact revenge. The 20th century has seen numerous demagogues who have promised to restore the pride and dignity of a people who felt they’d been “nobodied.” The long-term and most horrific consequences of rankism between peoples range from sabotage and terrorism to genocide and war.

It’s natural at first to wonder whether rankism is part of human nature. Not so long ago, it was widely believed that racism and sexism were, but now they are generally regarded as learned. While the impulse to exploit a power advantage for personal gain is hardly uncommon in our species, history shows it is equally in our nature to detest such abuses and to act together to circumscribe the authority of rank-holders.

To this end, we have overthrown kings and tyrants and placed political power in the hands of the people. We have reined in monopolies with antitrust legislation. We have limited the power of employers through unionization. Blacks, women, homosexuals and people with disabilities have all built effective movements that succeeded in replacing a once-sacrosanct social consensus with another that repudiated it.

People acquiesce in rankism because they fear the consequences of resisting: demerit, demotion, ridicule and ostracism. The muffled complaints, occasional whistle-blowing and sporadic outbursts we do hear echo those of blacks and women who resisted in solitary protest before popular movements made it impossible to ignore their demands.

By breaking the taboo on discussing rank, giving this kind of abuse and discrimination a name and revealing its costs, we can anticipate that the tacit social consensus that supports rankism will unravel. Like the members of other identity groups, victims of rankism can then be expected to join forces and make themselves heard. An auspicious example is the recently founded Roman Catholic lay organization Voice of the Faithful, whose goal is to limit the absolute authority of clerics. In time, we may see the emergence of a broad-based “dignitarian” movement dedicated to overcoming rankism in all its guises.

Today’s N-word is “nobody.” The successes of affirmative action herald the day when the victims of indignity, injustice and inequity are as apt to be white as black, male as female, or straight as gay. Even now, what primarily marks people for mistreatment and exploitation is low rank and the powerlessness it signifies. Overcoming rankism is democracy’s next step. In taking it, we will have the opportunity to honor the dual commitment to both freedom and justice that our nation’s founders imprinted on the American psyche.

Robert Fuller is the author of “Somebodies and Nobodies: Overcoming the Abuse of Rank.” You can learn more about this issue at his website, dignitarians.org

© 2003 Robert Fuller
Used with permission of author

When Silence is Not Golden: Negative Free Speech and Human Rights for Corporations

by

By Dean Ritz
Published July 1, 2003

When is silence not golden? When it supplants people’s authority by allowing corporations to remain silent on factual information, protected by the doctrine of negative free speech. Negative free speech is a Supreme Court expansion of the free speech provision of the First Amendment; it is a right to be free from forced association with a particular expression of speech. This legal existence has significant implications for social justice activists and serves to illustrate how the law is used to promote a narrow conception of democracy and human self-governance.

We find the origins of negative free speech in court battles over state laws intended to promote a diversity of views on issues of public concern. Two laws and the subsequent court battles over their constitutionality are worth noting. The first is a 1973 Florida state law that granted political candidates the right to equal newspaper space to respond to criticism of their record by a newspaper, often called “right of reply” statutes. The second is a 1980 administrative law passed by the California Public Utilities Commission that mandated access to the billing envelopes of the Pacific Gas & Electric Company for use by a ratepayer’s organization; if the utility company took a stance on an issue of ratepayer concern and distributed that stance in billing envelopes then ratepayers should have equal access to voice their divergent opinion. The Miami Herald Publishing Company successfully challenged the Florida law in the US Supreme Court, and the Pacific Gas & Electric Company successfully challenged the Commission’s administrative law. Both corporate victories helped establish the right not to speak negative free speech — as a First Amendment protection.

In numerous cases, US courts at all levels affirm informational diversity as one of the intentions of the First Amendment — the more voices, the better it is for a democracy. These good intentions have led to some decisions antithetical to democracy, such as the equation of money with speech (thus granting constitutional protection to corporate spending for political purposes) and the doctrine of negative free speech — particularly when it causes the withholding of factual information of public interest.

The federal courts permit some legislation to infringe upon constitutional liberties, inventing the doctrine of strict scrutiny as a tool to determine whether or not a particular piece of legislation will be “allowed” to do so, or whether it should be struck down. Strict scrutiny requires that the government prove a compelling public interest is being served. For example, a law that prevents people from falsely yelling “Fire!” in a crowded theater is allowed to restrict freedom of speech because that particular expression of speech poses an imminent threat to public safety (e.g., a human stampede can cause injury and death), and public safety is a compelling state interest. The second prong of the test asks whether or not the legislation implements a “narrowly tailored means” to satisfy the compelling state interest. To continue with our “Fire!” example, a law that forbids all speaking inside a theater may be applauded by those bothered by others who talk during performances, but it is far too broad to meet the compelling interest of public safety. Outlawing a falsely shouted “Fire!” is suitably narrow. Legislation is deemed unconstitutional if it fails either part of this test of strict scrutiny.

The Supreme Court applied strict scrutiny to both the Florida and California laws, decided that they failed the test, and overturned them. The Court noted the laws in question depended upon the content of speech; it was only in those cases where there was opposition to corporate speech that citizen access to the corporate-controlled communication channels was required. In Florida, this was space in the same newspaper that had printed criticism of a political candidate. In California, this was in the billing envelopes the corporation sent out to utility customers. In both cases the corporations claimed their free speech rights were violated because they were being forced to associate with speech the corporations did not endorse.

The Supreme Court hypothesized that if these laws remained on the books, the only way for the corporations to avoid the association with disagreeable speech would be for them not to publish any controversial speech at all. Thus the Court concluded that these laws impeded the informational diversity that the First Amendment seeks to foster and placed an undue burden upon corporate speakers. The Court thereby decided these laws infringed upon the fundamental liberty of free speech. Applying the test of strict scrutiny, the Court saw neither a compelling state interest being served nor a suitably narrow means of achieving whatever interests that state did possess. Thus both the Florida and California laws were revoked, and negative free speech became a new tool in the corporate fight against the potential for human self-governance.

There are two other assumptions of note in these Supreme Court decisions. First, the Court made no distinction based on who was speaking; that is, corporate speech and that of humans were considered equal before the law. Second, even a highly regulated company like a public utility warrants the same speech protections as a less or lightly regulated company. These assumptions magnify the impact of negative free speech because they remove from citizen authority the ability to distinguish between speakers, thereby creating the circumstances for conflicting claims over rights. This particular point is well illustrated by the 1996 federal Court of Appeals case of International Dairy Foods Association v. Amnestoy.

At the heart of this case were conflicting claims to the human right of free speech by humans and corporations. As readers of constitutional cases know, the framing of a case substantially determines whose rights, and thus whose interests, shall triumph: the right of human beings to be informed of factual information or the corporate claims to negative free speech? Current Supreme Court doctrine holds that both reside in the First Amendment protection of freedom of speech. International Dairy Foods concerns a Vermont labeling law that sought to provide factual information to consumers, enhancing their ability to make informed purchasing decisions.

A closely related collection of dairy industry corporations appealed the law. The Monsanto Company, the producer of the only FDA-approved rBST product, filed an amicus brief. Their lawyers claimed the statute violated the corporations’ negative free speech rights of the First Amendment. But the court recognized that the human beings who were to be the beneficiaries of this factual information were also making claims upon the First Amendment — specifically the right to be well informed.The law required that dairy products produced by cows treated with genetically engineered recombinant growth hormone (rBST) be labeled as such. The labeling technique detailed in the law was simple: either producers of affected products would add a blue rectangle to their packaging or retailers would affix a blue dot to the package. The Vermont merchant would also post a sign in their store defining what that blue symbol meant to the purchaser:

The court decided on behalf of the dairy corporations, agreeing with their lawyers’ claims that the statute required them to make involuntary statements in violation of their First Amendment rights. The court then failed to see any substantial state interest as being served by the labeling law. Unlike food additives, rBST is not directly added to food but rather added to dairy cows. “[T]he state itself has not adopted the concerns of the consumers; it has only adopted that the consumers are concerned. Unfortunately, here consumer concern is not, in itself, a substantial [state] interest.” Ideologically speaking, the court presumed that consumers had no interests other than curiosity, which is inadequate justification to pass a law restricting corporate speech. The court decided that the knowledge of how products are produced – including such unsavory production practices as child labor and environmental damage resulting from production process — is beyond the authority of its citizens’ demands and not of legitimate concern for the purpose of labeling laws.

The Court of Appeals recognized this power of law to influence ideology and thus public consciousness. If mere human concern alone were sufficient to compel corporations to label products with details on how a product was produced, then it is reasonable to infer that any and every request for informational disclosure could be justified. So the Court of Appeals used the law to temper such human expectations and ideals:

“Although the Court is sympathetic to the Vermont consumers who wish to know which products may derive from rBST-treated herds, their desire is insufficient to permit the State of Vermont to compel the dairy manufacturers to speak against their will. Were consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods. For instance, with respect to cattle, consumers might reasonably evince an interest in knowing which grains herds were fed, with which medicines they were treated, or the age at which they were slaughtered. Absent, however, some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.”

The Court of Appeals, because of its limited definition of “safety,” did not recognize any legitimate safety issue because the FDA had already determined there were no health or human safety issues related to the use of rBST in dairy cows. In the end, basing their opinion on “sound science,” i.e., that what the FDA does not know (or tell us) cannot hurt us — the court struck down the Vermont labeling law.

International Dairy Foods decided that humans do not have the right to even know where rBST is used. And inconveniently for consumers, the Monsanto Company’s filing of lawsuits against two Vermont dairy producers, [similar to this case] and their threats of legal action against two thousand others, effectively prevent the public from knowing where rBST is not used. This arrangement grants corporations the right to silence people’s right to know, thwarts the concept of “enlighten[ing] public decision-making in a democracy,” and denies citizens the ability to “exercise the power of their purses” as the Court of Appeals cynically suggested would be a viable alternative to the labeling law.

The dissenting opinion of Justice Leval took a different tack on this case. He recognized that the labeling law dealt with factual information, not opinion. The judgment arising from facts comes from the reader, not the speaker of the facts. This factual information is exactly the kind of information that citizens have a right to request, and the government has the legal capacity to procure an answer. He wrote:

“[T]he true objective of the milk producers is concealment. They do not wish consumers to know that their milk products were produced by use of rBST because there are consumers who, for various reasons, prefer to avoid rBST. . . . In my view, the interest of the milk producers has little entitlement to protection under the First Amendment. The case law that has developed under the doctrine of commercial speech has repeatedly emphasized that the primary function of the First Amendment in its application to commercial speech is to advance truthful disclosure — the very interest that the milk producers seek to undermine.”

In other words, consumers have a legitimate right to know factual information, and manufacturers do not have a legitimate grant of authority to remain silent. Compared to the majority opinion, this dissent reflects a very different understanding of citizen sovereignty and self-governance, in particular that citizens possess an authority superior to those of their corporate creations. It also reflects an understanding that the case represents a conflict over authority, not a conflict over rights. This issue of authority deserves additional attention as it widens the scope of ethical investigation in thinking about the corporate claims to free speech rights in the specific context of this case, and claims to any human rights in general.

In theory, a government should provide for the safety of its citizens and for keeping the peace. Towards fulfilling these responsibilities, citizens tacitly accept the need for an enforcement “branch” of government, populated by the police and military. Additionally, these state responsibilities are considered valid justification for laws that infringe on constitutional rights. The recurring questions for self-governing people are whose safety, whose peace, and who is being forced by police power to be peaceful? In International Dairy Foods we can see that it is safety for corporate markets and that citizens do not have the sovereignty to demand that police power instead be used to ensure that self-governing people be well informed in order to be effective in their practice of self-governance. Here the police power was applied to keep people uninformed.

International Dairy Foods represents rivalrous claims upon the First Amendment: the corporate claim upon the right not to be associated with certain speech versus the human right to be informed. It calls attention to the immoral arrangement of granting human rights –those few recognized in the Constitution — to corporations. And this arrangement calls attention to a presumption that people and corporations have equal claims to rights, and thus are equal in the eyes of the law and of the courts. Ignoring this arrangement and its presumption perpetuates the ideology that conflicting claims upon the Constitution by human beings and corporations must be settled on the merits of individual conflicts of rights, whereas the whole conflict could be settled swiftly by conferring upon human beings sole claim to all constitutional and human rights. By this arrangement, conflicting rights claims by human beings and corporations would not be possible, and human beings would recover a sovereignty in practice now asserted only in US mythology.

As we can see, framing the International Dairy Foods case as one of conflicting claims to rights insures that many fundamental issues regarding democracy and self-governance will not be dealt with. Should commercial speech receive any constitutional protections? Is it rational to believe that corporations engage in any speech other than commercial speech (a crucial point to make regarding corporate claims to a “right to lie”)? Why do states fail to grant legal force to citizen concerns not sanctioned by regulatory agencies like the FDA and EPA? The largest question is ignored as well: should corporations possess any constitutional rights at all?

International Dairy Foods Association v. Amestoy failed to address any of these issues. The federal Court of Appeals instead framed this case as one of conflicting claims to the same right, and thus it only had to decide whose claim was superior and thus triumphant. The rule of law presumes that such conflicts can be impartially resolved but alas, that is a myth. The framing of this case imposes a distinct partiality, a bias perpetuating corporate ideology, and eliminating issues of legitimate concern for a self-governing people. Activists and lawyers should not shy away from these issues, as their public discussion will raise our standards and demands for democracy in the United States.

More on International Dairy Foods v. Amnestoy here. 

Reclaiming the Bill of Rights, Building a Movement

by

Published in the winter 2002-2003 issue of
By What Authority, the journal of the
Program on Corporations, Law and Democracy.

Jeff Milchen is the founder of ReclaimDemocracy.org, a young but increasingly influential organization in the Democracy Movement. Molly Morgan interviewed him about their strategy and campaigns.

BWA: What is the focus and mission of ReclaimDemocracy.org’s work?

Jeff Milchen: Well, our tagline is “Restoring Citizen Authority Over Corporations,” and like POCLAD we focus on effecting long-term structural change that cuts across many different issues. An ongoing part of our work is delivering radically democratic perspectives through mass media to people who don’t necessarily consider themselves radical or even progressive. We dissect current issues to expose how problems are rooted in the illegitimate power wielded by corporations and moneyed interests, and we try to show clearly how changing the system could directly improve people’s lives.

Another major component of our work is building concrete tools for change and replicable models that decentralize power so that average citizens and communities have more influence in the decisions that affect them. We think the more people experience democracy close to home, the more likely they are to value it and work to expand it. People across the political spectrum who may disagree on outcomes still have common goals in creating a more democratic society, but their differences may hide those shared interests. One reason is that so much of the “news” is alienating and disempowering — it obscures the work and impact of ordinary citizens while exaggerating the power of those in official positions.

BWA: How do you get your message out?

JM: Our media outreach has focused primarily on print media plus some talk radio programs. We’ve had significant success — from op-eds in mainstream newspapers like the Washington Post, Newsday, and the San Francisco Chronicle to strategy and solution-oriented pieces in publications like The Ecologist, Black World Today, and major Spanish-language newspapers like La Opinion and La Prensa. As an example of how revoking illegitimate corporate power concerns people across the political spectrum, our work has been written up in business magazines and conservative tabloids like American Free Press as well as progressive magazines like Utne Reader.

BWA: Describe your campaign to revoke corporate free speech.

JM: We’re helping to instigate what we hope will be the broad national coalition necessary to put this issue on the radar screen. We believe that corporate free speech is a desecration of our Constitution and that this is an especially good time to generate public debate about it because a case called Nike v. Kasky stands an excellent chance of being reviewed by the Supreme Court in 2003. The case centers around the issue of commercial speech — a category of communication created by the Court.

The Supreme Court is a political institution that responds to major shifts in public opinion. Our goal is to use Kasky to make the issue of corporate free speech a high-profile controversy, framed as a matter of justice, like other struggles for civil rights. We need huge numbers of citizens generating pressure on our courts and influencing their thinking, and it’s a challenge because the injustice is less direct and obvious than for other abuses of our rights.

Our initial focus in this effort is on the American Civil Liberties Union (ACLU). We want to persuade their leaders that their mission to defend civil liberties for human beings is undermined by their consistent support of corporate “rights.” This is especially disturbing when our civil liberties are under siege by the Bush Administration and Congress. The ACLU also expends resources to oppose most significant campaign reform efforts by supporting the doctrine that spending money to influence elections is protected “free speech.”

Our position is that all communication by for-profit corporations is inherently commercial speech and that no constitutional protection exists — it’s up to We the People, working through our democratic institutions, to decide what privileges commercial entities should enjoy. The Bill of Rights was intended to protect only human beings, but previous Courts have claimed that speech itself is protected by the First Amendment — that a thing is protected rather than the right of a person — which goes against any reasonable interpretation of the Bill of Rights.

BWA: Wouldn’t revoking corporate free speech diminish the First Amendment and limit opportunities for organizations like the ACLU and ReclaimDemocracy.org to speak?

JM: No. The Supreme Court has distinguished explicitly between advocacy groups and profit-centered corporations in two cases: Austin v. Michigan Chamber of Commerce (1990) and FEC v. Massachusetts Citizens For Life (1986). In FEC, the majority said: “Massachusetts Citizens For Life was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace.”

It’s worth noting that in colonial times, the word “speech” often described discourse — an interactive communication, as in, “I’d like to have a speech with you.” The Constitution writers likely wanted to protect dialogue, not just broadcasting one’s views. How can people dialogue with something like the Nike Corporation, which has no mouth or ears, let alone a mind?

Restoring a reasonable definition of free speech would actually amplify the voice of small organizations like ours with a genuine human constituency. Individual citizens and grassroots organizations can never speak as loudly with our own voices as corporations can with the unlimited amplification of money. But if our relative impact corresponded to the quality of our ideas and how effectively we worked to promote them, rather than how much money we spend, we’d have a very different country.

Of course, corporate speech has been key to amassing wealth and power for corporations, and their hirelings will fight to retain it. Public relations departments will churn out messages framing corporations as the defenders of liberty. Corporate lawyers will argue about slippery slopes and the freedom of speech being sacrosanct. They’ll say even speech we don’t like needs to be protected and use examples of unpopular speakers like the Ku Klux Klan. Our work is to properly frame the debate: the Constitution protects the rights of human beings, not things, and only people have rights to free speech. The popularity of a speaker is not an issue, but the speaker’s humanity is!

BWA: How does corporate free speech affect public policy?

JM: Virtually every issue of consequence is affected by the illegitimate influence of corporations derailing democracy, but here’s one: both of the dominant political parties constantly espouse the value of “free trade,” yet they pass laws that preclude or destroy competition in countless industries. Take pharmaceuticals. The government creates and enforces monopolies [patents] on drugs, not for the benefit of taxpayers who fund the development of two-thirds of the most medically significant drugs, but for corporations. As a result, Bristol-Meyers-Squibb Corporation can gouge cancer victims for 20 times the production cost of its patented drug, Taxol. Did cancer patients and citizens have an opportunity to participate in the decision to give away the patent? Hell, no. We were never even informed that we paid for its development!

Squibb exercises its “speech” by spending millions for paid lobbyists in Washington, who shape issues and frame debate in ways that bypass the most critical questions entirely. This is why we never hear ideas like “let’s keep public control of these drugs and contract a corporation to produce it at a modest profit.” As long as we allow corporate wealth to translate readily into political power, these abuses of the public interest will be the norm.

BWA: What kinds of positive alternatives to corporate power do you work to create?

JM: Ultimately, corporate power comes from a single source — our money — so we work to divert money and power away from absentee-owned corporations and toward community businesses that are locally rooted. It’s tough to hide from the consequences of your business decisions when they have a visible impact on your neighbors and the town you live in. We show people that there are many alternatives to giant corporations — that, in most cases, local businesses can provide the bulk of communities’ needs and do it as well or better.

A few years ago we started the Boulder [Colorado] Independent Business Alliance (BIBA) with the goal of helping the community to stop chainstores from continuing to displace local businesses. We organized collaborative campaigns funded by independent local businesses, including public education, direct pooling of resources for group purchasing and marketing, and political organizing to promote local policies favoring community-rooted businesses. BIBA opened a lot of doors for democratic conversations that included many people and organizations who would have been difficult to engage through, say, POCLAD or ReclaimDemocracy.org.

We consciously worked to develop a model that others could employ, and last year we launched the American Independent Business Alliance (AMIBA) to help other communities use it. There are four more IBAs now with substantial paying memberships — Salt Lake City, Utah; Corvallis, Oregon; Austin, Texas and Santa Fe, New Mexico– and several other communities are in earlier stages of organizing. We’re helping to seed and connect these groups to build a national network that eventually will change trends on a larger scale.

I believe that owners of farms and other small businesses are essential to the success of the Democracy Movement. These folks know as well as anyone how destructive giant corporations can be, but not only have most activists failed to forge alliances with small-business owners, we tend to alienate them with broad-brush attacks on business. Sloppy use of language like “business interests” does great harm to our cause.

A long-term goal of ours is to develop a powerful counterforce to entities like the US Chamber of Commerce, which gains its legitimacy from thousands of small member businesses, but actually exploits them to promote the agenda of the transnationals that drive its agenda. We should seize the label of “pro-business” for ourselves, making it clear what kind of business we’re for and why. After all, small-business owners already know that “corporate speech” only helps those big enough to hire lobbyists and public relations firms.

Learn more about POCLAD at POCLAD.org

“Patriot” Act II Bush Administration Escalates Its War on Americans’ Freedom

by

By Jeff Milchen
First published by Pacific News Service
February 11, 2003

Last October, Senator Russell Feingold (the only Senator with the courage to oppose the “Patriot Act”) asked the Department of Justice to “describe what efforts are being made within the department to broaden the powers of the USA Patriot Act.” He never received a response, but now the American people have the answer.

A leaked copy of the Bush administration’s draft “Domestic Security Enhancement Act of 2003” (DSEA) indicates that even after the 2001 Patriot Act expanded federal police powers while curtailing privacy rights, the Bush administration thinks Americans are still too free and government too small. Like the Patriot Act, the massive “Security Act” draft contains a few measures that could help catch a terrorist, surrounded by many that merely propel us further toward a secretive police state.

For starters, the DSEA would revoke key elements of the Freedom of Information Act (FOIA), enacted to prevent government from keeping secrets from the public unless a legitimate security concern exists. Currently, FOIA gives us the right to know if a missing person is in the custody of any government agency. But under DSEA, anyone — even U.S. citizens — could be detained secretly in connection with any “terrorist” investigation, a term lacking legal definition.

Does abandoning this bedrock principle of freedom make us safer? Not likely. The Freedom of Information Act already allows the government to withhold such information if disclosure could hamper investigation of other suspects or events. Under the government veil of secrecy established last year, we have no legal right to know who among the 1,000 plus-people secretly detained by the Bush administration since Sept. 11 was charged with a terror-related crime.

Chemical and nuclear corporations may be among the few entities cheering the DSEA. The Act would grant a long-standing dream of chemical corporations: stripping citizens of our right to know about threats posed by toxic chemicals and the risks of spills or explosions in our communities. Like many Bush Administration proposals, this draft smells like a case of waiting for the right opportunity to provide cover for pre-existing agendas.

When asked about the document, a Department of Justice spokesperson claimed that it represented merely “staff discussions.” But the DSEA clearly is ready for introduction any time — perhaps while the public is distracted by an attack on Iraq.

The DSEA contains many proposals disturbing for immigrants, including increased punishments for violations of the Immigration and Nationality Act by aliens. But perhaps the most alarming proposal (Section 501) would give the Justice Dept. power to revoke a person’s permanent resident alien status or even U.S. citizenship for participating in, or “providing material support to … a terrorist organization.”

Since the 2001 “Patriot Act” redefined “terrorist activity” so broadly that minor vandalism could qualify, donating to a nonprofit organization that, unknown to you, is on Ashcroft’s hit list could end your life as an American citizen and resident.

Section 312 would revoke laws that prohibit police from spying on citizens without substantive evidence of criminal activity. This effectively reauthorizes the CIA and FBI to engage in domestic terrorism against activist groups — practices that became illegal after the well-documented COINTELPRO program abuses of the 1960s ruined the lives of many citizen activists.

Denver area activists don’t need to be warned. Last year, they learned that Denver police had created “spy files” on more than 3,000 activists and 200 civic organizations for their organizing activities or participation in rallies. The Nobel Peace Prize-winning Quaker group, the American Friends Service Committee, is among the groups labeled “criminal extremist” by Denver police.

This would be laughable if the news hadn’t prompted many calls to targeted groups by people asking to have their names removed from databases. Imagine the damage to human rights organizations so labeled at the national level.

These threats are just a few among dozens of concerning proposals within the DSEA. Thanks to a brave soul at the Justice Department who values freedom over obedience to his employer, we have a chance to examine this assault on civil liberties and debate it rationally before it is thrown upon us amid the fervor of attacking Iraq or terrorist threats.

Now is the time to recall the words of James Madison: “If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” People who value their freedom must fight the oppressive measures proposed in the draft “Security Enhancement Act.” Please visit ReclaimDemocracy.org for ideas on heading off this attack on our freedom.

Jeff Milchen directs ReclaimDemocracy.org

Orange Alert for Civil Liberties

by

Even after the draconian measures of the “Patriot Act,” George W. Bush and company apparently think Americans are too free and that we cannot be trusted to know what further infringements on our freedom are being planned.

The Justice Department’s plans for a “Domestic Security Enhancement Act of 2003” were revealed only through a Department insider leaking the document to the watchdog group Center for Public Integrity. Dick Cheney and House Speaker Dennis Hastert are the only recognizable elected or quasi-elected officials documented as having obtained the document, which is marked “Confidential: Not for Distribution Draft Jan. 9, 2003.”

Consequences of the proposals in the draft DSEA
 If introduced and passed as drafted, the Act would:

Revoke portions of the Freedom of Information Act. (See Section 201, pp. 13-14 of pdf) Your right to obtain information about a friend or family member detained by the government in connection with any activity deemed “terrorist” would be revoked. This is incredible in lieu of the fact that the Freedom of Information Act already allows for the government to withhold such information if its disclosure could hamper investigation of other suspects or events (exemptions 7a, 7c, 7f, in 5 U.S.C. 552b7).

The Act also would prevent you from having reasonable access to information about threats to your health and community, such as levels of toxic emissions (Section 202). The Act refers to such information as “a roadmap for terrorists.” The result: you’ll have to trust the Bush Environmental Protection Agency to disclose any corporate activities that pose a threat to you and your family.

Allow the Bush Administration to revoke your residency or U.S. citizenship. Perhaps the most alarming proposal (Section 501) would give the Justice Dept. power to revoke a person’s permanent resident alien status or even U.S. citizenship for participating in, or “providing material support to … a terrorist organization.”

Since the 2001 “Patriot Act” redefined terrorist activity so broadly that minor vandalism could qualify, donating to a nonprofit organization that, unknown to you, is on Ashcroft’s disfavored list could end your life as an American citizen and resident. Alarmist? Consider that members of the Bush Administration have publicly accused journalists who criticize them of being “terrorists” (e.g. Defense Policy Board Chairman Richard Perle on CNN, March 9, 2003).

Invalidate state legal consent decrees (Section 312) that seek to curb police spying on U.S. citizens, regardless of any tangible evidence of criminal activity. This effectively re-authorizes the CIA and FBI to engage in domestic terrorism against activist groups ( a la COINTELPRO); practices that were made illegal after the well-documented abuses of the 1960s.

If you think we overstate by using the term domestic terrorism to describe the FBI and CIA activities, please inform yourself about this critical history. The Church Committee report (officially the Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities of the United States Senate, 94th Congress, 2nd Session, 1976) is a good starting point.

Allow the government to force U.S. citizens to allow invasive collection of DNA samples (Sections 301-306) if the Administration consider someone a “suspected terrorist.”

The Act also would authorize the Justice Department to conduct secret searches of the home of any suspected terrorist for 15 days after any “national emergency,” rather than after a formal declaration of war, as in current law. Wiretaps of U.S. citizens for longer periods and with less court oversight are another proposal. There are many more serious concerns than we cite here. The most thorough analysis of the proposal we’ve seen thus far are available from the ACLU.

We urge you to at least scan the “Security Enhancement Act,” especially if you think we exaggerate the threats to our freedom. Even a casual read should quickly dispel that idea. Then please join us in working to preserve our Constitutional rights.

“A time comes when silence is betrayal. Even when pressed by the demands of inner truth, men do not easily assume the task of opposing their government’s policy, especially in time of war…

We are called to speak for the weak, for the voiceless, for the victims of our nation, for those it calls “enemy,” for no document from human hands can make these humans any less our brother.”
— excerpted from A Time to Break the Silence, Martin Luther King’s speech in New York City, April 4, 1967

Action Suggestions

Join at least 51 communities that have passed resolutions supporting due process and civil liberties to make statement against government repression. Dozens more communities have initiated related efforts. See BORDC.org for a guide to organizing such campaigns.

You can call, fax, or write or visit your U.S. Representative and Senators to voice your opinion on the measures noted in the draft “Domestic Security Enhancement Act of 2003,” but be aware that no member of Congress except House Speaker Dennis Hastert had been sent this draft as of February 7. You can reach any congressional representatives toll-free at 1-800-839-5276 or (202) 224-3121 (Capital Switchboard), or look up their other contact information.

Only through raising public dialogue can we hope to thwart this massive expansion of government and corporate power at the expense of civil liberties. Your letters to the editor, calls to talk radio (especially conservative shows), and discussion with family and friends all are meaningful and necessary actions. We are happy to offer help with any letter-writing, and our summary provides excellent material to excerpt for adapting to your own voice (but please don’t use it verbatim–editors are wary of form letters).

You also can work to pass a local resolution in support of civil liberties and opposing the “Security Act” or other attacks on freedom, as 32 U.S. towns and cities have already done.