By: E. J. Dionne, Jr, Opinion Writer, The Washington Post, February 5, 2012
“Corporate Personhood”: Should Corporations Have More Leeway To Kill Than People Do?
Next week, the Supreme Court will hear a case with many potential ramifications for American and international law, and for corporate responsibility for human rights around the globe. The justices will be asked to decide whether the corporations to which they have been extending the rights of individuals should also be held accountable for crimes against human rights, just as individuals are.
The story behind the case begins in 1980, when my colleagues at the Center for Constitutional Rights and I helped obtain the first semblance of justice to the family of a slain 17-year-old Paraguayan youth named Joelito Filártiga.
A police inspector general in Asunción, the capital, had tortured the boy to death in retaliation for his father’s opposition to Paraguay’s brutal dictatorship. But the case was decided in New York, far from Paraguay, where the crime had occurred and where justice had proven impossible for the Filártiga family; the boy’s murderer was ultimately ordered to pay the family $10.4 million in damages.
The precedent-setting case was made possible by a remarkable decision by the United States Court of Appeals for the Second Circuit, which allowed it to be brought under a long-obscure law enacted by Congress in 1789. Known as the Alien Tort Statute, the law has been interpreted to mean that foreigners who commit heinous crimes abroad in violation of international law can be held accountable in the United States if they are present or do business here; the Supreme Court upheld its constitutionality in 2004.
Since that decision, dozens of successful alien tort claims have been brought in American courts – at first against individuals, and eventually against corporations. As a result, many foreign victims of egregious crimes – ranging from torture and slave labor to the execution of loved ones – that were sanctioned, endorsed or commissioned by corporations have found justice in our courts.
Yet in September 2010, a divided Second Circuit – the very court that had rendered the Filártiga decision – held that only individuals, and not corporations, can be sued under the statute.
That ruling, in a case known as Kiobel v. Royal Dutch Petroleum, came less than a year after the much more famous – and criticized – Supreme Court decision in Citizens United, which removed restrictions on political spending by contributions and wildly expanded the concept of corporate personhood.
Together, these decisions have triggered a wave of outrage among advocates for human rights, which see in them a signal from the courts that corporations have extensive rights but few responsibilities under American law.
On Tuesday, the Supreme Court will hear arguments on the alien torts ruling, which could produce its first decision regarding corporate personhood since Citizens United.
The question of whether foreign corporations doing business in the United States can be sued here for crimes committed elsewhere has arrayed international businesses against human rights advocates, with many “friend of the court” briefs filed on both sides. Four governments have also chimed in: Britain, the Netherlands and Germany for the corporate defendant and the United States on the side of the Nigerian plaintiffs.
The story behind the Kiobel case is compelling: The plaintiffs are members of the Ogoni people in Nigeria’s Niger Delta, where Royal Dutch Shell had extensive oil operations in the 1990s through contracts with the brutal military dictatorship that held power at the time. The region is widely considered a zone of calamity, in terms of both environmental and human rights. In the suit, Royal Dutch Shell was accused of assisting the Nigerian government in torturing and, through sham trials, executing Ogoni activists who had threatened to disrupt Shell’s operations because of the devastating health and environmental effects of unregulated drilling practices. The plaintiffs are either victims of torture themselves or had relatives who were executed. Esther Kiobel, the plaintiff after whom the suit is named, is the widow of a victim.
If the Supreme Court rules in favor of Royal Dutch Shell and against the plaintiffs, multinational corporations – particularly in mining and other extractive industries – could draw the lesson that it is now safer to forge alliances with autocratic regimes that have poor human rights records because they will not be judged culpable in the way individuals can be.
In fact, many “friend of the court” briefs filed by corporations in this case contend that the companies are committed to voluntarily complying with human rights norms – but that standards set by the United Nations and other public and private organizations are mere guidelines that are not enforceable as legal norms. What they are really saying is that there are legal norms against torture and such, but that they can’t be enforced against corporations because they have never been enforced under international law – a claim the plaintiffs strongly contest.
This leaves the Supreme Court with an extraordinary choice to make, in juxtaposition to its previous ruling in Citizens United: whether to accept an argument that, in effect, leaves corporations less culpable than individuals are for human rights violations committed abroad – or whether to hold that if a 200-year-old law can be used to hold individual violators to account, it can be used against corporate violators as well.
A decision affirming that Shell should go unpunished in the Niger Delta case would leave us with a Supreme Court that seems of two minds: in the words of Justice John Paul Stevens’s dissent from Citizens United, it threatens “to undermine the integrity of elected institutions across the nation” by treating corporations as people to let them make unlimited political contributions, even as it treats corporations as if they are not people to immunize them from prosecution for the most grievous human rights violations.
A more startling paradox is difficult to imagine.
By: Peter Weiss, Op-Ed Contributor, The New York Times, February 25, 2012
U. S. Supreme Court Stays Montana Decision Undermining Citizens United
Late last year, the Montana Supreme Court handed down a decision that was widely viewed as openly defying the U.S. Supreme Court’s election-buying decision in Citizens United. Last night, the U.S. Supremes issued an entirely unsurprising order staying that decision. As a result, Montana will now face the same epidemic of corporate and other wealthy donor money that infected the other 49 states in the wake of the Citizens Uniteddecision.
There are, however, two possible silver linings in last night’s decision. The first is that the Supreme Court did not agree to the corporate parties’ request in this case to simply reverse the Montana decision without a full hearing or even necessarily an opinion. Yesterday’s order suspends the Montana decision “pending the timely filing and disposition of a petition for a writ of certiorari,” meaning that there is still a possibility that the Court could give the case a full hearing that would almost certainly raise the question of whether Citizens United should be overruled.
The second silver lining is a separate statement from Justices Ginsburg and Breyer attached to yesterday’s order:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, I vote to grant the stay.
This statement suggests that there are at least two votes on the Supreme Court eager to reconsider one of the modern Supreme Court’s most erroneous opinions just two years after it was decided. Such a swift reversal would very unusual, if not entirely unprecedented. In light of the massive influx of corporate and wealthy donor money flooding our democracy and threatening to elect a generation of candidates personally beholden to wealthy benefactors, however, this kind of swift admission of error by the justices is entirely necessary.
By: Ian Millhiser, Think Progress, February 18, 2012
Super PAC “Unilateral Disarmament”?: Using The System To Fight The System
The phrase “unilateral disarmament” has been used, in a negative sense, to justify a lot of unjustifiable behavior. But President Obama’s argument against unilateral disarmament in the super PAC war seems totally persuasive. The Republican party gained a large advantage in the 2010 elections, and appears poised to seize an even more dramatic edge during this campaign, by channeling vast sums of their campaign donations into third-party organizations, which can raise unlimited sums from undisclosed donors.
The problem with Obama’s decision, as I have been reading from numerous reporters, is that it’s “hypocritical.” MSNBC’s First Read insists that blessing super PACs “looks hypocritical no matter how you try and rationalize it.” Making the charge as a matter of appearance rather than substance – it looks hypocritical — allows you to throw out an accusation without justifying it. But how is it hypocritical? I haven’t seen anybody attempt to actually explain it.
To me, the ethics are pretty simple. Obama opposes the current campaign-finance system. His position is that the Citizens United ruling is wrong on the legal merits, it’s bad policy to allow unregulated independent election spending, Congress should pass legislation (previously blocked by Republicans) requiring greater disclosure from such groups, and that he favors a constitutional amendment to allow greater campaign-finance restrictions.
I fail to see what about these positions implies that Obama should also hold the following position: Given that the campaign-finance system is going to allow unlimited election spending by individual donors to technically independent groups, it is better to have a system where Republican donors exert these high levels of political influence but Democratic donors do not. Isn’t it perfectly reasonable to believe that the best outcome is a system where millionaires can’t spend unlimited sums on electioneering, and a system in which both parties have millionaires counterbalancing each other is better than a system in which only one party has millionaires spending unlimited sums?
Obama, after all, isn’t arguing that a millionaire cutting a $10 million check to buy a slew of political ads is an inherently immoral act, like driving a car through a crowd of pedestrians. He’s arguing that it’s a bad system, like allowing Warren Buffett to pay a lower tax rate than his secretary. He wants to change the system. But that wouldn’t make it hypocritical for Buffett to operate within the system that exists, as opposed to the alternate system he advocates.
Indeed, if you want to change the system, unilateral disarmament seems like a pretty bad way to go about it. Republicans are already pretty strongly opposed to campaign-finance reform. If keeping the current system means preserving a system in which their side gets unlimited outside spending and Democrats abstain, then the GOP is never going to agree to change it. Not that matching their money will force them to agree to reform, but eliminating the GOP’s partisan self-interest in the status quo seems like, at minimum, a necessary step toward reform.
By: Jonathan Chait, Daily Intel, February 7, 2012
“We The People,” Not “We The Rich”: The Citizens United Catastrophe
We have seen the world created by the Supreme Court’sCitizens United decision, and it doesn’t work. Oh, yes, it works nicely for the wealthiest and most powerful people in the country, especially if they want to shroud their efforts to influence politics behind shell corporations. It just doesn’t happen to work if you think we are a democracy and not a plutocracy.
Two years ago, Citizens United tore down a century’s worth of law aimed at reducing the amount of corruption in our electoral system. It will go down as one of the most naive decisions ever rendered by the court.
The strongest case against judicial activism — against “legislating from the bench,” as former President George W. Bush liked to say — is that judges are not accountable for the new systems they put in place, whether by accident or design.
The Citizens United justices were not required to think through the practical consequences of sweeping aside decades of work by legislators, going back to the passage of the landmark Tillman Act in 1907, who sought to prevent untoward influence-peddling and indirect bribery.
If ever a court majority legislated from the bench (with Bush’s own appointees leading the way), it was the bunch that voted for Citizens United. Did a single justice in the majority even imagine a world of super PACs and phony corporations set up for the sole purpose of disguising a donor’s identity? Did they think that a presidential candidacy might be kept alive largely through the generosity of a Las Vegas gambling magnate with important financial interests in China? Did they consider that the democratizing gains made in the last presidential campaign through the rise of small online contributors might be wiped out by the brute force of millionaires and billionaires determined to have their way?
“The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Those were Justice Anthony Kennedy’s words in his majority opinion. How did he know that? Did he consult the electorate? Did he think this would be true just because he said it?
Justice John Paul Stevens’ observation in his dissent reads far better than Kennedy’s in light of subsequent events. “A democracy cannot function effectively,” he wrote, “when its constituent members believe laws are being bought and sold.”
But ascribing an outrageous decision to naivetéis actually the most sympathetic way of looking at what the court did in Citizens United. A more troubling interpretation is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.
In fact, this decision should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents. How else to explain conservative legislation in state after state to obstruct access to the ballot by lower-income voters — particularly members of minority groups — though voter identification laws, shortened voting periods and restrictions on voter registration campaigns?
Conservatives are strengthening the hand of the rich at one end of the system and weakening the voting power of the poor at the other. As veteran journalist Elizabeth Drew noted in an important New York Review of Books article, “little attention is being paid to the fact that our system of electing a president is under siege.”
Those who doubt that Citizens United (combined with a comatose Federal Election Commission) has created a new political world with broader openings for corruption should consult reports last week by Nicholas Confessore and Michael Luo in the New York Times and by T.W. Farnam in The Washington Post. Both accounts show how American politics has become a bazaar for the very wealthy and for increasingly aggressive corporations. We might consider having candidates wear corporate logos. This would be more honest than pretending that tens of millions in cash will have no impact on how we will be governed.
In the short run, Congress should do all it can within the limits of Citizens United to contain the damage it is causing. In the long run, we have to hope that a future Supreme Court will overturn this monstrosity, remembering that the first words of our Constitution are “We the People,” not “We the Rich.”
PACs Americana: “Which Side Are You On?”
In retrospect, the transformation began the way most major changes in society begin: without anyone fully realizing what was taking place. Yes, when the Supreme Court handed down its 2010 Citizens United decision — allowing virtually unlimited spending by corporations and individuals to sway elections — there was a fair amount of outrage, mostly from the left. President Barack Obama, then in his first term, spoke out against what he called the corporate takeover of our democracy. But even those who imagined the threat posed by this unfettered influence could not have conceived of what would happen in the years that followed.
It started slowly. The so-called “super PACs” inserted themselves in congressional races. They ran a number of deeply misleading ads across the country. And they even took on roles traditionally associated with the political parties and candidates. But in those early days, the influence of these groups was limited: First, there were a lot of super PACs competing with campaigns and each other for donations and political talent. Second, they were prevented by law from coordinating with candidates.
But that all changed after the election in 2012.
Barack Obama’s narrow victory came after a brutal campaign in which the parties spent some $2 billion, yet were almost matched dollar for dollar by outside groups. The airwaves in swing states were saturated with a level of political vitriol not seen in this country since the days before the Civil War. The lack of coordination between PACs and candidates, however, meant that while people were inundated with ads, the messages were often competing and disjointed, forgotten as soon as the commercial break was over. Voters were angry, confused, frightened, and unmoved.
After the president’s reelection, a group of senior Republican operatives, joined by energy executives, Christian conservatives, and wealthy Republican donors, gathered to commiserate over the outcome of the race, and to plot the way forward. But the meeting quickly devolved into chaos. Karl Rove and representatives of Crossroads GPS, his super PAC, nearly came to blows with Mitt Romney’s campaign team — both sides slinging accusations as to who allowed the election to slip through their fingers.
Then a junior staffer, there only to take notes, stood up.
“This is the problem,” he said quietly.
Karl Rove, holding a folding chair over the prone and weeping form of Eric Fehrnstrom, paused. “What is it, son? Speak up.”
“This,” he said, taking a deep breath. “This is the first time any of us have been in the same room together.”
Grover Norquist, who took shelter behind a potted plant at the first sign of trouble, stood up and cleared his throat. “But we were barred by law, kid. Sure, the leaders of PACs can talk, but what use is it if we can’t coordinate with the campaigns?”
Karl unfolded the chair and sat down, his mind turning. “What if…” Karl squinted, shined an apple on his shirt, and took a bite. “What if there are no campaigns to coordinate with?”
Soon after, Crossroads GPS merged with the remnants of the pro-Romney “Restore our Future” super PAC, and absorbed other smaller organizations as well. With unlimited resources and few disclosure requirements, this new entity, TruePAC, had the funds to hire away talented staffers and operatives from the national party and campaigns. TruePAC enlisted polling firms, direct mail distributors, and other mainstays of traditional political operations. And Rove traveled the country delivering what became known as the PACs Americana Speech to convince bundlers and major donors to eschew traditional campaigns and parties to support his new organization.
His answer to a ban on coordination was to make coordination irrelevant. The PAC would be the campaign. The campaign would be the PAC. Because of the Supreme Court’s ruling, campaigns really only existed to meet filing deadlines and conduct paperwork; beyond this, the real difference between an official campaign and a political action committee was a bunch of onerous rules and restrictions.
And who needed those?
Democrats, slow to see the power of this new model, were overwhelmed by the onslaught that followed. Republicans took the White House and Congress in an election defined by TruePAC’s famous slogan, “ARGHHHHHHH,” which was shouted by children being pushed into a volcano. It was then that the last vestiges of the labor movement, Hollywood moguls like the chairman of NBC Hulu Universal, prominent trial lawyers, and wealthy liberal activists decided it was time to fight fire with fire. They created what became known as GoodPAC, which soon leveled the playing field.
In the coming years, GoodPAC and TruePAC waged a cold war, with candidates as their proxies, and advertisements as their arsenal. Campaigns became mere shells, with a skeleton staff on hand to secure signatures to gain ballot access and to file the requisite financial disclosures, which no one cared about anymore, because they were pretty much blank. Eventually, candidates stopped campaigning all together, fearing that any appearance would give TruePAC or GoodPAC more recent footage that could be used in their horrible, blood-curdling advertisements.
These tactics were of little use, however, as both PACs hired artists to ‘render’ versions of the other side in various animal and arachnid forms. Soon, people forgot which parties they originally favored, and came to identify with GoodPAC or TruePAC alone. After a while, the elections almost blended together. It was easy to think that GoodPAC had always been at war with TruePAC.
In time, supporters of GoodPAC and TruePAC grew more and more polarized, often refusing to live in the same parts of town. Campaigns were loud and garish affairs with long marches and slogans shouted in support of candidates rarely ever met or seen. The saddest part is, the elections themselves were usually decided by just a few votes, with the ballot counting extending for months or longer. Sometimes, you never even hear about who wins.
What’s strange is, I could swear that there have been times when the PACs have switched views to what the other PAC held in the last election. And there even are rumors that some companies support both PACs. It’s hard to know, because there are no disclosures. But I don’t understand how anyone could support both GoodPAC and TruePAC when they have such wildly different principles. Honestly, I’m not even sure if the members of TruePAC are people at all. They seem so awful, and lack the values that made this country strong. Are they rats? I think they may be giant rats.
At this point, I only know two things:
One, we have to do something — anything — to wrestle control of our government away from these powerful interests that distort our debate and limit our choices; that would scare us and divide us and deny us a voice in our political process, in our democracy.
And two, I hate with every fiber of my being the candidates backed by TruePAC, and I will do all that is in my power to help elect the decent, honest people who have earned the support of GoodPAC. So will you help us defeat the dragon-faced rat monsters who are out to destroy this country?
Which side are you on?
By: Jon Lovett, The Atlantic, February 2, 2012
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