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.
Continue reading “Put the Demos Back Into Democracy”

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.

About that “Seat at the Table”…

You want a Seat at the Table. You fight for it. You get it. Yippee. Let’s consider it.1

(Welcome back to the DTP Blog. I’ve been absent from this table because, among other things, May is a huge month for gardening in Wisconsin and mine needed lots of TLC so I could put food on my table. But back to your Seat.)

“Wanting a Seat at the Table” is one way citizen activists express their desire to be part of the decision-making process, instead of being merely audience, cheerleaders, dues-payers, observers, onlookers, demonstrators, or the blubbering supplicants role that we play in regulatory agencies.
Continue reading “About that “Seat at the Table”…”

WHY THERE AREN’T ANY JOKES ABOUT REGULATORY AGENCIES

OK, here’s a joke about a regulatory agency, as told by the corporate manager of a big polluting factory.

He says…So, I’m in my office one day and the Man from EPA comes in and slams down a huge stack of papers, saying — You’ve got 22,221 violations, and you better do something about them by next Friday.

So I says, Oh yeah, and what if I don’t do anything about them by next Friday?

Well, says the Man from EPA, then you’ll have twenty-two thousand, two hundred and twenty-TWO violations.

Hah, hah.

Not exactly hilarious, but that was my first time. I had to make it up myself because I’ve never heard a regulatory agency joke. Which struck me as strange, because in the US we have priest-minister-rabbi jokes, screw-in-a-light-bulb jokes, race jokes, blind guy jokes, physicist-mathematician-engineer jokes, and lots of lawyer jokes. (Like the one about the lawyer and the pope who died at exactly the same moment…I guess that’s a lawyer joke and a religion joke at the same time. Hmm, and Purgatory is sort of like a regulatory agency.)

The more I thought about it the odder it seemed. We have lifeboat jokes, viola jokes, man-walks-into-a-bar jokes, parachute jokes, toilet jokes — but no regulatory agency jokes. I’m not talking here about good jokes, or jokes in good taste, or politically correct jokes, or even funny jokes — just jokes.

I was looking for a fresh way to criticize regulatory agencies. Or, maybe to understand why so many people can’t imagine a world without them.

Folklorists and sociologists are always analyzing recipes, urban myths, jump-rope rhymes, and jokes for clues about a society. It follows that not having jokes about a certain topic might also tell us something. I’ve never heard a joke with the punchline, “And so the doctor says: You’ve got breast cancer!” and everybody laughs.

I’m not sure what it means if there aren’t jokes about regulatory agencies or cancer. This could be a red herring, but you can’t be sure till the fat lady sings.

Regulatory agencies have long public records of being colossal failures.That’s rich material to mine. Some of the reasons for failures:

1. Regulatory agencies are political, so sometimes the FDA chief is going to be a former pharmaceuticals company executive, or the DNR alpha is going to be a realtor. (Joke material?)

2. They’re way underfunded, so enforcement is a joke (did I say that?); leap years come more often than inspections; and the backlog of unevaluated chemicals numbers…let’s just say, much more than your annual income in dollars.

3. Historically, Reg Ags are always “captured” by the industries they are supposed to be regulating.

All that is well documented over more than a century in the US. But I won’t go into it here because I don’t have any jokes about it. Speaking of which…World’s shortest Regulatory Agency joke: Kid goes into the school guidance counselor’s office. Says, “I want to be a hearing examiner.”

OK, back to the list. Saving the worst for the last, two more reasons why Reg Ags are such failures.

4. By combining legislative, executive, and judicial functions in one place, they frustrate democracy. (Key: as they were meant to do). They regulate citizens, not corporations.

5. Reg Ags were actually invented by corporations as a way to avoid state legislatures and local laws. You don’t believe it, do you? It has a high truthiness index: go here for the facts.

After all that preaching you get one more joke.

A lobbyist, a hearing examiner, and an Earth First!er are in an elevator. The lobbyist is wearing Savile Row, the hearing examiner is wearing Thrift Shop retro, and the Earth First!er is dressed up as a Karner Blue butterfly. They’re at EPA headquarters, heading for a hearing on the top floor, way, way up there. Suddenly, there’s a thump and they get a sinking feeling in the pits of their stomachs.

The Earth First!er yells: The cable’s broken, we’re falling! Help me find the emergency button to stop this thing!

The hearing examiner says: Thank-you for taking the time to come here today to share your views on this matter with us.

The Earth First!er yells again: You just don’t get it, do you? Help me stop this elevator NOW or we’ll all die!

The hearing examiner says: Well, it’s not quite as easy as you think. First of all, there are people who have spent their whole lives studying elevators and running elevator companies, and it would be imprudent to do anything without hearing their testimony.

Second, there are constitutional issues here. We have to hear the elevator company’s views because the Supreme Court has ruled that corporations are constitutional persons with First Amendment speech rights, plus rights to due process and equal protection before the law.

Then, the lobbyist butts in: The elevator company’s experts have already submitted persuasive testimony to the effect that we’re not falling at all, you are an alarmist, and if we even try to stop the elevator now, we would damage it, thereby harming the elevator corporation’s constitutionally protected private property and becoming liable for damages.

I hate to leave that so up in the air, but I got sort of bogged down on that joke, if you know what I mean. The lobbyist and the hearing examiner became compost, and a blue butterfly was seen fluttering away from the scene.

What the butterfly knew that many citizens groups still don’t, is that there is life and activism outside of regulatory agencies. It’s called local government, ordinances, legislation, referendums—and much of it goes under the name “community rights.” Here is an introduction.

Fat lady’s song: To answer the implied title question, Why aren’t there any jokes about regulatory agencies? Um, because they ARE a Joke?

Actually, there are Reg Ag jokes. But the ruse that there aren’t got you to the end of this blog post, didn’t it? Thanks.

Until next time. jam

Let’s Get Smart About ALEC

Gather a bundle of your inkiest exclamation points to put at the end of the next sentence. An outfit called ALEC, funded by wealthy right-wing ideologues, has put together a collection of model laws that they like, and is trying to get legislatures to pass them! ! ! ! !

So what exactly is so shocking about this? That they have actually written up laws they’d like to see passed? That they are promoting them to like-minded legislators? That they have money? Really? (For an analysis of what we’re missing, go here.)

(For those of you who have been playing online solitaire for the last four years, ALEC, described as a “corporate bill mill,” stands for American Legislative Exchange Council, founded in 1973 as the Conservative Caucus of State Legislators).

Hey, there are as many model laws out there as there are articles “exposing” ALEC. Glance over this fun sampling, and then tell me why ALEC is so outrageous.

Apes & Electrification
The Animal Legal Defense Fund has a “Model Ordinance for Great Apes” as part of its Model Animal Protection Laws Collection. The Energy and Mining Sector Board of the World Bank puts out model laws that promote electrification.

Shellfish & Carry-On Musical Instruments
The Food and Drug Administration puts out a Shellfish Sanitation Model Ordinance. The American Federation of Musicians sought to get provisions of a model law about carrying musical instruments on commercial airlines incorporated into a modernized Federal Aviation Administration Act.

Guns, Adoption, Anatomical Gifts & Organ Transplants
The Johns Hopkins Center for Gun Policy and Research put out a Model Handgun Safety Act. The US Uniform Law Commission puts out lots of model laws such as the Uniform Adoption Act and the Anatomical Gift Act, the latter supported by “many organ, eye, and tissue procurement organizations.” The Organ Procurement and Transplantation Network offered the National Organ Transplant Act.

Service Dogs & Solar Energy
Assistance Dogs International has an Assistance Dog Model State Law. Solar America Board has offered a Model Statute/Ordinance To Encourage Access to Solar Energy.

Work Zone Safety & Model Model Law
The National Committee on Uniform Traffic Laws and Ordinances puts out model laws on work zone safety. There is even a model law for models from the Model Alliance, an organization that focuses on fashion model rights. Concerns include child models dropping out of high school, and being pressured for sex by photographers.

Lots of groups and institutions are organized and focused enough to write up and put out model laws, at the local, state, federal, and international levels. (Go here for an example of how to do this “at home.”)

Some work quietly, while others launch major PR campaigns. These model law groups are likely to be funded by, if not started up by, people who stand to benefit or believe they will benefit from the laws they propose.

Many states, and the US, have passed outstanding “green” or “progressive” laws in the past. See my book Gaveling Down the Rabble, or an article about a “green” future, or an article about good state laws, or an article about laws to protect meat quality.

Unfortunately, many of these laws have been declared unconstitutional because of corporate constitutional protections. For an insight into this phenomenon, go here.

So, let’s get smart about ALEC.

1. Get over it. What is accomplished by protracted hand-wringing on how evil ALEC is? Describing the problem is only helpful if you’re talking to people who don’t think there’s a problem.

2. Acknowlege that ALEC has done a great job, especially by keeping a list of model laws on hand for when they may be able to pass them. ALEC is prepared.

3. Learn about ALEC. ALEC gets its power from the government. Specifically, the Illinois law under which ALEC incorporated in the mid-1970s, and the 501(c)(3) portion of the US statutes IRS code. Have you ever read or tried to change either one?

4. Write your own goddam model law. If you’ve got a problem with ALEC, rewrite the law under which it was incorporated to better suit democratic ideals. State laws are out there, and I don’t see a lot of left-of-center groups even reading them, much less rewriting them. Right now, state incorporation statutes are modified every session, as corporate lobbyists march in, hand in their “improvements,” and stand by while legislators pass them. The American Bar Association puts out a Model Business Incorporation Act. Do you have one? (Go here for an example of some great provisions that used to be part of corporate law.)

5. Some good model laws. Here are two recent ones that you might consider emulating, adapting them to your own local issues. It’s part of what is often called the “community rights” movement.

COLORADO COMMUNITY RIGHTS NETWORK
HISTORY OF ENVISION SPOKANE

Ever walk into a representative’s or council person’s office with a proposed law in hand? It’s a good feeling. Put it on your 2015 New Year’s Resolutions list.

See you around Ground Hog’s day. jam

A Corporate Anthropologist Walks Into a Blog…

There are two kinds of corporate anthropologists. First, the kind that works for corporations and gets paid. I’m the other kind.

The first kind works for and with corporations to increase worker productivity, advise what color greeting card to send a Chinese executive, or figure out how to sell personal hygiene products to Mayan grandmothers. In school we used to call it how-to-sell-Coca-Cola-to-the-natives. A subset would be how to keep the natives from getting restless.

It often involves finding non-confrontational stealth “solutions” to management-defined problems. This would include designing lobby benches that can’t be slept on, or sandpaper-covered toilet seats to discourage secretaries with too much time on their hands from hiding in stalls reading bodice-rippers.

It would not include ways of preventing non-corporate geese from defecating around fountain-fed corporate ponds. (That would require a corporate ornithologist, I guess.)

The second kind of corporate anthropologist, the kind I am, uses anthropological methods to study corporations or corporate culture. The core anthropological research method is participant observation, which basically means living there, or if it’s a setting like a factory or school, working there or attending—hanging out in some way.

I’m a corporate anthropologist because my “tribe,” the one I studied, was a powerful quasi-public utility company. It was by following this utility through scores of permits and hearings, in nearly as many regulatory agencies and courts, that I got my training in regulatory agencies. My dissertation was over 700 pages long and contained thirteen appendices, partly because I feared a lawsuit.

This sort of thing is called “studying up” because unlike the historic anthropological project of sending someone from an empire to study oppressed people in the colonies (“studying down”), you have someone studying up at powerful people, groups, or institutions, often in their own society.

One of the reasons it’s not more popular is that there’s no money in it. In my own case, I was encouraged to study (down at) environmental groups or citizen activists instead of (up at) the Big Utility. Corporations and other powerful institutions have always been happy to fund studies that reveal the inner workings and weaknesses of groups that suffer from their practices.

Since the 1960s, UC-Berkeley anthropologist Laura Nader (yes, Ralph’s sister) has been encouraging students to “study up” at everything from regulatory commissions to dentist conventions. Her work was an inspiration and model for my own.

If you want to hear more about my utility tribe, you can read a sidebar on it here, or follow the links in “About JAM” to a biographical sketch on the Society of Midland Authors site.

So, a corporate anthropologist walks into a blog……says…. Happy Solstice, see you in 2015. jam

Frackin’ Keystone

Gotcha. There, I did it. Used two of the hottest current keywords to draw you in, and here you are. Thanks for visiting, I’ll make it worth your while.

They’re but two buzz words in a long line — longer than the trains stretching to the horizon, carrying crude (very crude) oil, frack sand, and yes, still a lot of coal.

Hydraulic fracturing, Keystone XL Pipeline, two buzz phrases in a long line of practices and projects that should have been prevented, or stopped, or at the very least scaled way down to something plausibly sustainable, or regulated down to something whose consequences would be truly minimal.

But instead, FRACKING and KEYSTONE are just the latest episodes in the long-running and on-going soap opera called Regulatory Agency Failure whose subtitle could be something like, No-Your-Community-Does-NOT-Have-the-Right-to-Protect-Itself-from-Obvious-Harms. Why do we keep banging our heads against the wall in the regulatory agency theme park — exactly where corporate strategists want us to be?

Is it because we can’t think of any other approach? That won’t work as an excuse for anyone who knows the history of regulatory agencies in the US, or the history of corporations in our states.

I’ve been trying to get people to question the whole regulatory agency framework for decades. Not to replace it with transparently self-serving “corporate social responsibility,” faux-green techno-fixes, or so-called “market forces” to further fatten the 1% — but with something that we could, with a straight face, call small-d democracy.

So, I’m handing you off.

If you think regulatory agencies were designed to actually regulate corporations, go HERE. If after reading those five pages you still believe in regulatory agencies, I’ll buy you a beverage of your choice. (I’ve been making that offer for fifteen years now, and have never had a taker.)

If you can’t imagine anything to do other than plead — and I mean plead — with bureaucrats in regulatory agencies, go HERE.

If you are ready for a comparison of activists’ ineffective, circularly addictive busy-work tactics with the straightforward, effective, corporate strategies that deal with fundamental law instead of frou-frou regulatory minutiae, go HERE.

By the time you’ve considered all that, I’ll be ready to dish out another installment of commentary.

Right now I’ve got snow to shovel.

State “Laboratories of Democracy” Threatened, Overlooked (2007)

by Jane Anne Morris

How to be sure that toy under the holiday tree has no lead paint? With only a month of shopping days remaining, the public depends–more than at any other time–on our federal regulatory agencies’ ability to protect us from health and safety risks from toys, clothing, and other goods.

So when an appointed regulator asks the Congress to prevent her agency from doing its job, we should be concerned. The head of the Federal Consumer Product Safety Commission, Nancy A. Nord, actually asked Congress “not to approve the bulk of legislation that would increase the agency’s authority, double its budget and sharply increase its dwindling staff.”1 Small wonder the New York Times put that story on its front page October 29.

Other federal agencies that we might expect to be watchdogs — the Environmental Protection Agency, the Food and Drug Administration, and the Federal Communications Commission — are either hamstrung by resources grossly inadequate to their stated tasks, or worse, staffed by anti-regulatory types, like Nord.

Lost in the irony of Ms. Nord’s embarrassing “No, thanks,” is that federal agencies are but one — albeit an important one — among many ways to address the plethora of challenges we now face.

Remember the Tenth Amendment? “The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Justice Louis Brandeis famously lauded state and local governments as “laboratories of democracy” that might show the way.

Long before federal regulatory agencies even existed, local and state governments were seeing to their general welfare. Many are still trying. Yet they face considerable opposition not only from corporations being regulated, which we would expect, but from a federal tribunal that rarely gets the credit for annulling their efforts, and then “bumping up” such matters to the underachieving federal regulators. (My new book, Gaveling Down the Rabble, Apex Press, discusses this in detail).

Take, for instance, the matter of corporate agriculture. A South Dakota constitutional amendment — passed by 59% in 1998 — prohibited most corporate ownership of real estate used for agriculture in the state. In 2004, the U.S. Supreme Court effectively threw it out, on grounds that it was essentially a “trade barrier.” Nebraska’s even stronger anti-corporate agriculture constitutional amendment, first passed in 1982, was ruled unconstitutional in 2006 by a lower federal court — citing the South Dakota case.2

The Supreme Court has struck down over 1200 state and local laws.3 Following this lead, lower federal courts struck down countless others. The relentless narrowing of what the Court deems “constitutional” has a chilling effect on lawmakers at all levels, especially state and local, at a time when we need all the help and ideas we can get.

Other examples of thwarted state efforts abound. Take oil spills, for instance. Washington State regulations aimed at insuring proper training, adequate staffing, and other safety measures in the operation of tankers along that state’s coastline were declared unconstitutional by the US Supreme Court in 2000.4 According to the Court’s interpretation, states cannot impose conditions more stringent than those in a weaker federal law. This is part of the Court’s pre-emption doctrine, which it has often applied so that federal law sets not a minimum standard, but a maximum one. Instead of setting a floor for states, the Court has set a ceiling, disallowing the more protective laws that many localities desire.

In 1997, a Maine property tax law encouraging in-state charities to serve Maine residents was declared unconstitutional as interfering with “free trade” among the states. In 1995, the Illinois Consumer Fraud Act outlining relief from unfair or deceptive marketing practices was deemed unconstitutional as applied to an airline corporation. In 1994, an Oregon state law intended to reduce the state’s burden of handling solid waste from out-of-state was declared unconstitutional as a “trade barrier” by the Supreme Court.

Other “progressive” state and local laws concerning protection of water resources, milk labeling (rBGH), conservation of fossil fuels, protecting fledgling industries, bans on products made with prison and child labor, protection of native species, place-of-origin product labeling, toxic waste regulations, support for local business, meat handling standards, and on and on, back to at least the Civil War–have been deep-sixed by Supreme Court rulings based on increasingly arcane, if not inane, doctrines.

The beneficiaries of this “narrowing” have been, for the most part, big corporations. The high court’s pro-corporate doctrines have had the effect of laying down a weighty tarp of “unconstitutionality” over outbreaks of democracy, lest they break out and become pandemic.

Of course, I would like to see strong, functional federal regulatory agencies that do more than act as valets to large corporations. But let’s not forget the role that local and state governments can play, have played, and must again play, in promoting the general welfare.

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Jane Anne Morris is a corporate anthropologist. Her new book, Gaveling Down the Rabble: How “Free Trade” is Stealing Our Democracy (Apex Press), explores these and related issues.

(Originally written and published locally in 2007, this was reprinted in the Progressive Populist Jan. 1-15, 2008.)

Notes

Why a Green Future is “Unconstitutional” and What to Do About It (2008)

By Jane Anne Morris

A top view of a drawer of various wrenches and pliers; entrancing and calming. Tools.Working in tandem with a cooperative Supreme Court, corporate lawyers have insinuated themselves into the US Constitution like retroviruses, rewriting Constitutional code so that instead of protecting human persons from an oppressive government, the Constitution has been twisted to shield corporate persons (corporations) from control by the governments that create them.1
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