Don’t Miss Enrollment Deadline for Car Care Insurance

It will be easy peasy. Let’s eavesdrop on a typical case.

So you got a new car? Great, it’s time to sign up for your car care insurance plan. Come on in.
First, there are three general types of plans, roughly based on how much they cost. The Earth plan is the cheapest, next there’s Sky, which is in the middle. The most expensive plans are called Crystal, and most of the people who get those drive real expensive cars and are frankly, loaded.

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SLAPP, Crackle Pop — Help, They’re Suing Us!

Congratulations on being sued for your activism. You should be gratified, but instead are probably freaked out.

Millions of activists and public officials struggle for the public good for decades without being sued for their work. That’s because the power brokers they are ticking off can handle them with the usual routine tactics. If you are getting sued, it’s probably because your opponents know that you are doing something extraordinary–truly threatening their plans, instead of being predictable or predictably conventional.
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SLAPPs Article from NIMBY (1994)

(The following is from my 1994 book, Not In My Back Yard: The Handbook (Silvercat Publications). It’s dated but still accurate. The references are no longer current.)

Watch Out for SLAPPs

SLAPP, a term coined in 1988, refers to a Strategic Lawsuit Against Public Participation. A Wall St. Journal article, referencing consumer advocate Ralph Nader, provides a succinct summary of what SLAPPs are all about.

“Corporations and developers have filed hundreds of civil suits against individuals or community groups in the past decade, Mr. Nader said. Usually, the plaintiffs allege libel, defamation, or interference with business in an effort to stop protesters from voicing criticism.
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SLAPPs In Depth

SLAPPs: Effects, Defenses, Preventions

This paper on SLAPPs is written for non-lawyers by a non-lawyer. It is an attempt to familiarize the interested layperson with the nature of SLAPPs, defenses against them, and ways to prevent them. Special attention is given to provisions that may be effective in state legislation designed to protect the rights of citizens who participate in a public debate.
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Put the Demos Back Into Democracy

There are two kinds of activist groups, equally (in)effective. Which are you? And why?

Pop-up activists tend their topiary and anguish over bathroom fixtures until… a Big Bad Issue pops up and invigorates them.

Permanent Waves — the second kind of activist group — inhabit longstanding, institutionalized power zip codes nestled among other shrubbery in the nonprofit landscape.
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CORPORATE CAMPAIGN CASH AT THE CATERPILLAR STAGE (Not fuzzy at all)

Do you think you can understand butterflies perfectly well without knowing caterpillars? Corporate political contributions had a caterpillar stage; I’m guessing you won’t even recognize it. Here’s a snippet:

No corporation doing business in this state, shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.

Whoever wrote that thought corporate money has no business mixing with politics, with elections, with the political process, or with democracy. That’s deep common sense. The excerpt is from a 1905 Wisconsin law, and many states passed similar ones. But if you suggest to people that it should be law today, they laugh in your face. Then re-direct you to some lame slogan-y substitute project that mainstream foundations will fund. (You know who you are.)

The laughter is from people who have lost, or never known (or maybe are afraid of), the clear vision of a transparent and democratic political process expressed in the quote. We probably won’t achieve it by next Tuesday morning, but without a goal with some there there, we fritter away our activism on inconsequential side shows. Compared to the “No corporation…” approach, McCain-Feingold and the Michigan law voided by the Citizens United case are embarrassing.

That inherently self-limiting, self-censoring perspective (bad selfies) means that even reformers’ wildest goals fail to question the assumptions that today pass for common knowledge—and that must be changed before we can begin to work toward a democratic system here.

THE BUTTERFLY STAGE: MONEY = SPEECH

For people who don’t think it significant that butterflies come from caterpillars, a counter-narrative has replaced the deep common sense of the 1905 law. It’s often abbreviated as money equals speech, an equation brought to us by the Supreme Court when it officially legalized the role of corporate money in elections (Buckley v. Valeo, 1976). It goes something like this: in today’s world, you need money to make your views known, so spending money in a political campaign is a First Amendment right. (Among other things, this view does not distinguish between human beings and corporate persons, but you can read about that here.)

The PAC (political action committee) was invented as part of a liberal “reform,” the Federal Election Campaign Act (FECA 1971, 1974). The wind at its back was a backlash against CREEP, Nixon’s Committee to Re-Elect the President. If you’re trying to place this culturally, AM radio stations were cycling “Rhinestone Cowboy” hourly.

Under the FECA, corporate political money was heavily regulated, but legal. It was just a matter of time (and not much time, at that) before FECAL CREEP set in: corporate lawyers and lobbyists learned a new kind of bundling, while continuing to chip away at the regs through relentless piecemeal legislation and judicial monkey-wrenching. Today there is so much other legal money flying around, the PAC has a much reduced role. Even the SuperPac has been largely superseded by further limits on the limits of so-called “soft money.” Citizens United is but one step in this process.

WHAT’S GOING ON IN THAT CHRYSALIS? AFRAID TO LOOK?

No matter how long and hard you stare at a butterfly, there’s neither caterpillar nor chrysalis within. You must go OUTSIDE the butterfly—into its pre-history, so to speak—to see the present for what it is. Call it phenology, or history, or just commonplace observation; there’s no shortcut.

In the phenology of corporate campaign cash, many deep-common-sense chinks had to be eased out of place before a seemingly lobotomized electorate would be so dazzled by the butterfly stage that they would stop imagining what democracy might look like. Here’s a sampling of the crud that corporate engines pumped in to replace the 1905 vision.

1. Corporations had to be accepted as constitutional “persons,” with many of the rights of human beings, despite the fact that corporations are creations of government. This started as early as the late 1880s in a series of Supreme Court cases often referred to today as “corporate personhood” cases.

2. The purpose of (government-created) corporations had to be expanded from a specific legislatively established public purpose to essentially “anything you can think of.” The open-ended corporate purpose of today was mostly legally “settled” by the time of the Great Depression.

3. The idea of corporations interfering with the democratic process by “donating” had to be established. Corporate representative struggled for decades to get legal permission to donate to charities, a desire no doubt inspired by the powerful nationwide anti-chain store movement of the early twentieth century. Corporations got this power from the IRS in the mid-1930s (another reform era), and it was confirmed judicially only in 1953.

4. People had to accept that Money = Speech, Corporations are constitutional persons, and therefore corporations could legally “speak” by giving money to campaigns. Implicit in this is that (golly) corporations have opinions. (Of course, they don’t do a straw poll of employees).

5. In and around all of this is the notion that somehow corporations exist on their own in some sense, and not just as an entities created by governments to serve a specific public purpose.

6. The real biggie here is not just that over generations, fewer and fewer decisions were left to locals—but that this, uh, trend, has not been challenged more consistently. (And before you even complete that thought, there is much more to local power than small racist elites running so-called governments like plantations.) A long list of suspects–federal preemption, “efficiency,” a domestic “free trade” agenda, hugely increased power to the federal court system, a growing conglomeration of Borgesian fantasies clothed as legal doctrines, a misplaced notion that locals are usually yokels–has contributed to the fact that local power is at a low ebb.

It is these “facts o’ life,” grandfathered in by ignorance and complacency, that need to be disputed, rejected, and replaced if we expect to achieve substantial political reform. Add them to your to-do list. Or else…

THE POST-BUTTERFLY STAGE IF WE DON’T INTERVENE

Maybe today’s corporate campaign cash universe is on the verge of transformation to another stage. Like…sending out catalogues for ordering “take-out” legislators. It could be by the year, the term, or even for life. Or maybe, short-term store specials where you can just buy them for a single vote or issue. (Why pay for votes on endangered species if you only care about corporate tax rates?) More possibilities—economies of scale if you want to buy a dozen legislators instead of just one, maybe a banker’s dozen. Coupons! (Half off before the Iowa caucuses!) Buy one, get one free! Generic politicians versus name brands, frequent flier miles converted into committee votes, Don Draper, where are you now? (Apologies to reader for using more than my lifetime allotment of exclamation points.)

* * *

The 1905 law was a STATE LAW, and was still on the books, with lessened penalties, until the early 1970s when the FEC Act—a liberal reform–effectively nullified it.

All of today’s political butterflies had a caterpillar stage. This stuff is legally “settled” only because not enough people question it.

* * *

APOLOGY TO BUTTERFLIES

I apologize to butterflies, their precursors and successors, and all other associated hangers-on, for bringing them into this discussion. They deserve better. The sausage-making metaphor long applied to legislation is bad enough. I don’t know what got into me. I’ll blame unexpected drug interactions in the wake of the Republican debates for my shameful insectoid metamorphosis analogy here.
Coming soon…were the pyramids built to store grain or…Syrians?

Decommissioning Corporate “Magic”

Would you like to neutralize corporations’ ability to get so many GOOD laws declared unconstitutional? There’s an “app” for that—-an approach, that is.

Seriously, do you really think it’s unconstitutional to require labels on GMO food? Or to prohibit a dangerous and ecologically harmful activity like fracking? What kind of a screwy constitution are we talking about here?

What if the Martians (or Plutonians) landed and asked why we permitted a gigantic CAFO to produce inferior food while threatening aquifers, ecosystems, community, and quality of life? Not to mention, underselling and disadvantaging local organic food producers. Would we say, yeah, it’s a bummer but we have this sacred document called the Constitution and it says we, uh, have to allow this?

I use the word “magic” (as in corporate magic) advisedly. Magic is misdirection plus mechanics. Almost always, the misdirection (“Watch my right hand carefully, now…”) is more critical than the mechanics. (Dexterity is a matter of practice: just watch bulbous-fingered men playing mandolin or tweeting.) The same is true about how corporations get laws they don’t like voided by courts.

Obviously, in order to counter magic you have to understand it.

First, the Mechanics

Over many decades, corporate lawyers convinced judges that corporations are protected by the Constitution against government action. (A portion, but not all, of these protections comes via so-called “corporate personhood.”) After a high court confirmed these judicial interpretations, legislatures incorporated the changes into law. (This is still going on today, but the groundwork was laid long ago.)

Result: The Constitution both created a government, and set up provisions to protect people from oppressive government. Then the government (state governments, mostly) created corporations as its agents. These corporate agents, really extensions of government, then began claiming that they were more like human persons than creatures of the state, and therefore deserved protection against the government that created them. (If you feel dizzy, you’re getting it. The topology of the situation is a snake shaped like a Mobius strip eating its tail.)

In a nutshell: A corporation (set up by a government professing to act on behalf of the people) claims the protections of people against government, and wields the power of government against people. This is having your cake and eating it too.

Once even a single corporation wins recognition of an expanded constitutional protection, that protection then extends to ALL corporations. They don’t even have to send each other memos.

Quickie example: A county believes a certain business corporation (BadCorp) is reprehensible in its methods, labor policies, and general environmental practices, so it passes a law banning that corporation from doing business within its jurisdiction. (For an example, read up on the anti-chain store laws of the early 20th century. Check page 61 of my book.) BadCorp files a lawsuit claiming that its 14th Amendment constitutional right to equal protection is violated, because other similar corporations are not banned, while BadCorp is singled out. In other words, BadCorp was discriminated against. (I kid you not, this is the language used.) After that (and this started in the late 19th century), all the other corporations went whining to federal courts to claim that they were discriminated against, too. As a result, this and other corporate constitutional protections accreted over the years have made it next to impossible to pass legislation with real effect to control corporations.

That’s the mechanics part. I’ve been writing about it for two decades, and there’s a solid century-and-a-half of legal scholarship on it. But regular people don’t read that, either because it sounds too intimidating or boring, or because…corporate misdirection has deflected their attention.

Now, At Stage Right, the Misdirection

You can almost smell the incense. Mental lights dim, somber susurrus caress the syllables…Con-sti-tuuuu-tion…as we enter the Sacred Text Zone. Imagine that urine-colored parchment with the nearly unreadable loopy script on it. Probably behind glass. With a security guard nearby. Most people are not exactly sure what all’s in it, but they are hesitant to violate it.

Instead of “Keep your eye on my right hand…” the misdirection here begins with people in dark, voluminous robes intoning the word “unconstitutional.” The first misdirection is that even the suggestion that something is unconstitutional makes many people back off (and stop looking into it).

It gets worse, because the misdirection implies that the Constitution itself actually says that corporations have rights (mostly from the Bill of Rights), and protections from other clauses scattered throughout the document. IT DOESNT. Just read it. (Or some of my short vignettes illustrating the point).

The notion that corporations have constitutional protections comes not from the Constitution but from judicial decisions made since the early 19th century. The judges that made these decisions, almost without exception, were wealthy white men with considerable property. Most also had experience working for the railroads, banks, and other dominant corporations of their day.(See pages 76-77 in my book.)

Misdirection Plus Mechanics Equals…

While misdirection makes people afraid to question the Constitution, and unaware that such protections come not from the Constitution but from increasingly free-ranging judicial interpretations (often called judge-made law), activists and other citizens tend to disattend the mechanics of constitutional protections for the legal fiction of the corporation. Which are right out there, in black and white, as plain as that rabbit in the hat.

Here’s the App!
Decommissioning Corporate Magic: The App(roach)

Remove, by passing laws, the handful of corporate protections that corporations have used to neutralize literally tens of thousands of excellent pieces of legislation.

Before your eyes glaze over, consider this. Look up from your screen. People who can install and use numerous apps on complex electronic devices that blink, beep, thump, vibrate and arpeggio at us from all compass directions—are without doubt capable of understanding the points of constitutional law (there, I said it) that keep corporations for the most part out of reach of citizen legislation.

Hundreds of local communities have tried it already, and are making real progress. Visit one or two, to see how that app(roach) works.