A Futures Market in Constitutional Rights? (1997)

By Jane Anne Morris

It’s the best of times, if you’re a rapacious corporation with money. It’s the worst of times, if you’re a citizen with democratic pretensions, or a living thing. Or a rock. Especially if you contain ore.

Using money to buy power to get their way works great for corporations, what with the trade in human organs, the stench in the “marketplace” of ideas, and the patenting of seed stock used for millenia by indigenous peoples We have reason to be dubious about the glories of buying and selling.

Feeling cash-poor? Already sold your organs? Don’t miss out on the growing market for selling your rights, individually or as a community. And the prospective buyers are……you guessed it, transnational corporations.

In Wisconsin, under the homey phrase “Local Agreement,” there’s a way for corporations to directly buy up constitutional rights of whole cities and counties, once and for all. This is how it works.

A MegaMining Corporation (MMC) proposes a contract to the local government body — city council, county board, Native American tribal council, whatever. Then the corporation runs roughshod over open government laws and democratic rights to due process, and exerts all the pressure that a multibillion-dollar corporation can bring to bear on the handful of local officials.

After months or years of pressure, the local government signs on to the Local Agreement, and the following provisions become law.

$ The local government gives MMC the right to mine (as long as they get their state and federal permits — a breeze, if history is any guide.)

$$ The local government promises to say “it conforms with all local ordinances” when asked by MMC what they think about any mine permit changes or the adequacy of a reclamation plan.

$$$ The local government promises not to renounce or repudiate this agreement.

But only now are we getting to the good part.

$$$$ The local government agrees that this contract replaces and constitutes compliance with all local regulations, laws, permit requirements, licensing conditions, ordinances, etc., — both in terms of substance and of procedure. (READ THAT AGAIN. The local government has just given up all authority to govern or to represent its citizens. Local citizens have just lost their rights to enforce any local ordinances or regulations that were put in place to protect their environment or way of life. This goes for future laws, as well.)

It gets even better.

$$$$$ If the local government is party to any proceeding that questions the validity of this contract, it agrees to allow MMC to represent it. (MMC will not charge for its legal services in this case. What a deal.)

$$$$$$ Finally, there is the assurance that the local government can still sue MMC at any time, so long as that action is consistent with the Agreement. (But the Agreement states that all local laws are being conformed to, and that the local government won’t question the Agreement — what’s left to sue about?)

If you’re not well grounded here it’s easy to get dizzy from the circularity. And now, what the locals get in exchange.

¢¢ The local government gets a load of empty, unenforceable promises from the corporation, and a yearly payment.

In a nutshell, then, in Wisconsin it is legal for a local government to abandon all of its governmental and regulatory functions regarding mining activities, by promising in a contract not to exercise its governance functions.

(It may also be possible for a corporation that has negotiated such a contract to transfer or sell the contract (containing the local governments’ promises) to another corporation. The contract is a form of property, and stranger things have happened in property law. Remember the reference to human organs and seed stock at the beginning of this piece.)

If somehow the local government does end up in court over a dispute about conditions for renegotiating part of this contract, this contract stipulates that whatever else happens, “the court may not directly or indirectly prohibit …mining .” I’m not a lawyer but it seems downright odd to me that a contract between a local government and a corporation could stipulate what action a court may take.

Wisconsin’s Local Agreement law was first passed in 1987, right after Exxon corporation was forced to give up in its first attempt to turn Wisconsin’s North Woods into a mining district. Several local governments have already signed onto Local Agreements with mining corporations, despite the sustained and persistent protestations of area residents. Other government entities are under heavy pressure to do so. (Of course, they have a signing bonus to look forward to.)

Wisconsin’s law specifically permits Local Agreements to be made regarding mining. The fact that it has not yet been thrown out as unconstitutional sets a decade-long precedent. Were the “mining” reference to be deleted from the law (simple enough to do), this law would permit any corporation to buy off any local government in a similar manner.

Think of a JunkMart Corporation, or Toxic Mismanagement Corporation, for instance, buying off the governance functions of any local government in the U.S., and thereby gaining “legal” rights to do whatever the state DNR and the feds would allow (and that includes almost anything.)

All such “Local Agreement” laws, under whatever name, should be located, identified, and repealed. Send out an APB.


First published Fall 1997, Earth Island Journal, Vol. 12, No. 4

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