Legal

5 Ways Citizens United Has Screwed Over Our Democracy

Five years after the Supreme Court handed down Citizens United, the decision continues to have a widespread impact on the state, federal, and even international level.  As evidenced by the record spending 2014 mid-term elections, the unchecked influence of corporate and business interests through super PAC (Political Action Committee) donations has significantly altered the operation of American politics.  

1. Elections are no longer influenced by people, but by money.  And some people have a lot of money.

​Before Citizens United, nearly half of all states restricted corporate spending in elections.  Since the decision, these state level restrictions have been repealed or modified, opening the floodgates for corporate donations to state and local elections.  Spending on state candidates for governor, attorney general, and even local school boards has reached record levels as corporations become increasingly aware of just how easy it is to influence local elections.

Corporate donations to super PACs have corroded the influence of local elections.  The potential for just one donor to use his or her wealth to single-handedly alter an election in “pay-to-play” elections where only the well-connected can reasonably run for office is worrisome.  If money is speech, then corporations clearly have more speech than real people.  

2. Corporations enjoy unbounded spending—and thus unbounded influence.

Weak disclosure laws are problematic when combined with the enhanced abilities of single corporate donors under Citizens United.  Single donors will max out contributions to candidates and then turn to super PACs to contribute even more.  This raises concerns that candidates who directly solicit donations to super PACs are using the groups’ unbounded spending power to circumvent campaign finance limits, particularly when that super PAC supports a single candidate.  A 2014 complaint filed with the Federal Election Commission (FEC) by the Campaign Legal Center . . .

The "best" law firms? What do lawyers really value?

"Law and order exist for the purpose of establishing justice." Many lawyers would agree with this statement. Yet more often than not, recognition in the legal community doesn’t come from “establishing justice.”

Recently, the online publication Law360 released its annual list of "Practice Groups of the Year." The award for "Environmental Group of the Year" went to the law firm Gibson Dunn & Crutcher, notorious for its scorched-earth approach to getting Chevron off the hook for environmental degradation in Ecuador.

How could Gibson Dunn be recognized for such anti-environmental work? It's not surprising, actually. Every award in this category went to a law firm that helps defendants avoid environmental liability or limit the scope of environmental regulations. No firms that help use the law to force environmental cleanups or stop harmful pollution, or NGOs that protect endangered species and critical habitats, merited any recognition.

This reflects a troubling reality about the values in much of mainstream U.S. legal culture. The "best" firms are recognized not based on their social value - the degree to which their efforts help establish justice - but based on the dollar value of the judgments they win or avoid, or the size of the "deals" that they broker. Law360 is open about this - they say they recognize the practice groups "that notched the biggest litigation victories or deals of the year."

Virtually no plaintiffs'-side law firms made the list at all. (One exception - perhaps the only exception - was ERI's co-counsel Cohen Milstein Sellers & Toll, recognized for its antitrust work.) Instead, Law360 has a separate listing of the "Most Feared Plaintiffs' Firms." (Law 360 is subscription-only, but the full listing can be found here.)

That title alone says a lot about the audience expected to read the . . .

Slavery Doesn’t Make Free People, Chamber of Commerce

The Chamber of Commerce is dreaming- not of a white Christmas- but of a world where corporations aren’t liable for their human rights abuses.  We recently filed a Freedom of Information Act (FOIA) request – FOIA is a transparency law granting the public access to documents and information in the Government’s possession – looking for information on the U.S. government’s amicus brief in Kiobel v. Royal Dutch ShellKiobel is the recent and now-infamous Supreme Court decision that narrowed – to a yet-to-be-determined degree – the extraterritorial reach of the Alien Tort Statute (ATS), a law that has been used to compensate non-US human rights victims for decades. 

Our FOIA request unearthed a memo the Chamber of Commerce sent to the US Government encouraging them to oppose ATS extraterritoriality.  I shouldn’t be surprised by the Chamber’s positions about corporate accountability, and yet . . . I am always disappointed.

The Chamber basically thinks that we shouldn’t make corporations pay for their human rights abuses, because corporate investment is what is really needed in places in the world where human rights abuses occur.  This is the same old (and silly) adage that “a rising tide raises all ships.”  Even if there were any merit to it abstractly, it surely has no bearing on the conduct underlying most ATS suits. 

In the Chamber’s bizarro universe, innocent companies are being slapped with ATS suits just for innocently doing business in countries with poor human records.  Not so.  ATS liability is quite narrow – an ATS claim exists only for violations of a few concretely established norms of international law, like torture and crimes against humanity.  And a company is only liable if they have themselves committed one of those human rights crimes (read: supporting and profiting from slavery or aiding and abetting warlords) and . . .

Women United for Climate Change at COP20

Women are some of the most important actors for climate change solutions: they are crucial in managing natural resources sustainably, adapting to climate change, and protecting fragile ecosystems. In spite of being the most vulnerable to climate change, women are often excluded from decision making.

It was clear during this months United Nations Framework Convention on Climate Change in Lima (COP20), that all over the world, women have a lot to say about the effects of climate change. To make sure women’s voices are heard and celebrated, we were honoured to co-sponsor a reception with incredible spokeswomen of climate justice and the protection of our environment, including leaders of indigenous communities, Mary Robinson, former President of Ireland and United Nations High Commissioner for Human Rights, and Bianca Jagger, Chair of the Bianca Jagger Human Rights Foundation and Member of the Executive Director’s Leadership Council of Amnesty International USA.

Huaorani, Sarayaku and other indigenous women leaders with Bianca JaggerHuaorani, Sarayaku and other indigenous women leaders with Bianca Jagger

While a draft accord was being negotiated at COP20, Indigenous women talked about being at the forefront of protecting their territories and forests. This panel of indigenous women included Cecilia Brito Vasquez, who is an EarthRights International Amazon School for Human Rights and the Environment 2005 graduate. Cecilia, together with a group of Shipibo-Konibo women - mostly grandmothers - set up their own organisation to promote climate change adaptation strategies and indigenous traditional knowledge as a way to defend their forests from encroaching extractive industries.

Lily la Torre Lopez, ERI's Senior Amazon Counsel, Bianca Jagger, and Maryum Jordan, ERI's Amazon Fellow . . .

Corporations Hiding Behind the Constitution to Keep Secrets

Do corporations have the constitutional right to keep secrets, just because the information might be embarrassing or hurt their reputation if it became public?  Our friends at Global Witness and Free Speech for People have just filed an important amicus brief that answers this question with a resounding “no.”

The amicus brief defends Section 1502 of the Dodd-Frank Act, a law that requires companies to report on their use of “conflict minerals” coming from the Democratic Republic of Congo.  It’s worth a read, because it does a great job of undermining companies’ argument that the government violates their First Amendment freedom of speech rights when it requires them to disclose factual information about their operations.

In response to a lawsuit by the National Association of Manufacturers, the powerful D.C. Circuit ruled earlier this year that most of Section 1502 of the Dodd-Frank Act was constitutional.  However, it struck down a part of the law that requires companies to declare whether their products are “DRC conflict-free,” reasoning that this requirement violated the corporations’ constitutional right under the First Amendment to not speak. This was based on prior D.C. Circuit decisions that had set a very high constitutional bar for most rules that require corporations to disclose information to the public. Under this rule, unless requiring the disclosures was the narrowest possible means for the government to pursue a very important public interest, then companies could seek to have them overturned under the “compelled speech” doctrine, which is meant to prevent authorities from forcing people to say things that that they don’t want to say.

Just a couple of months later, however, the D.C. Circuit changed the rule and made it easier for the government to require companies to make commercial disclosures in the public interest.  In doing so, it . . .

Update: Chevron fails to win State Department's Award for Corporate Excellence

After an outcry from 30 civil society organizations who objected to Chevron's nomination for the award - and other denouncements across the internet - the State Department announced that the 2014 Award for Corporate Excellence would be given to Coca-Cola, EcoPlanet Bamboo, and Wagner Asia Equipment - not Chevron.

Some advocates have criticized the inclusion of Coca-Cola, which has faced accusations of serious labor rights violations, including lawsuits alleging complicity in the murder of labor leaders in Colombia. Coca-Cola has, however, made some efforts in the past few years to improve its social performance - including declaring "zero tolerance" for land-grabbing in its supply chain and producing an impressive (though still imperfect) report on its business practices in Myanmar (Burma) - the very same country where the US embassy nominated Chevron for the awards. (Oxfam America ranks Coke at #3 of the top 10 food companies in terms of social and environmental performance - and the top American company in the rankings.)

We hope that the outcry over Chevron's nomination leads the State Department to re-think what "corporate excellence" means, and shift from a mindset that rewards corporate philanthropy projects to one that really considers whether a corporation is respecting local communities in its profit-making operations.
 

Is Chevron a model of "corporate excellence"? We don't think so.

Last month the U.S. State Department announced that Chevron was a finalist for the Secretary of State's "Award for Corporate Excellence." Because Chevron is implicated in too many human rights and environmental disasters to enumerate here - the True Cost of Chevron annual report give a good overview of their misdeeds in Myanmar (Burma), Nigeria, Ecuador, Kazakhstan, and elsewhere - clearly the State Department is using a different notion of "corporate excellence" than most people would.

In fact, they are. Although the State Department says that the award is meant to honor companies who act as "good corporate citizens" and use "exemplary practices," the nominations were not done on the basis of the company's overall operations. Instead, the U.S. Embassy in Myanmar nominated Chevron based on its humanitarian projects there, involving healthcare and local economic development.

I don't know anything about these particular projects, but I feel strongly that this is the wrong way to go about promoting corporate responsibility. As ERI has pointed out in a letter to the State Department yesterday, a company can't simply offset irresponsible practices in its profit-making operations with a couple of humanitarian corporate philanthropy projects. Truly responsible corporations use "exemplary practices" in all their operations - and Chevron clearly doesn't.

Update: Chevron fails to win State Department's Award for Corporate Excellence

On the 30th Anniversary of the Bhopal Disaster

Today marks the 30th anniversary of the world’s worst industrial disaster. On the night of December 2-3, 1984, poisonous gas from the Bhopal, India pesticide plant of Union Carbide Corp.'s (UCC) local subsidiary enveloped nearby communities. Thousands of people died by morning. Thousands more died over the ensuing weeks, months and years.  

Union Carbide has never adequately compensated the victims. And, while Union Carbide has been charged with crimes in India for its role in the disaster, it is a fugitive; it fled India and has never answered the charges in the criminal case, which remain pending.  After the disaster, UCC largely abandoned the site, allowing toxins to leach into the local drinking water supply.  UCC has steadfastly refused to act to prevent further contamination or to compensate those whose drinking water has been poisoned. (ERI serves as co-counsel in a suit in New York against UCC seeking redress for this pollution.)

Survivors and other members of the surrounding community have been fighting for justice all of these years.  On this sad anniversary, five survivors' organizations demanded that UCC appear in the criminal case, provide adequate compensation to Gas Disaster survivors, and clean up the groundwater.  One would hope UCC will finally do the right thing, but given their abysmal track record, I am not optimistic. 

Today, and every day, let us remember the victims and survivors of Bhopal. Let us stand with them until justice is served. 

 

 

Canadian government tries to protect the reputation of its mining companies - it's got its work cut out

The Economist is reporting on a Canadian government initiative to promote the interests of its mining companies abroad if they will agree to take part in a dispute resolution process with local communities. It's not clear what this process would look like; we would urge community involvement in creating the process.

But it's clear that, in the reputation-management department, the government has a tough road ahead. In addition to ERI's own release about Barrick, I compiled the following list of Canadian mining companies involved in abusive and/or polluting projects around the world - off the top of my head:

·  NevSun Resources, sued just last week for alleged slave labor in Eritrea

·  Goldcorp, allegedly involved in abuses against local indigenous groups and pollution in Guatemala

·  Glamis Gold, which sued the US government over California and federal environmental regulations (and lost) (now part of Goldcorp)

·  Anvil mining, sued (unsuccessfully) in Canada over alleged involvement in a massacre in the DR Congo

·  Tahoe Resources, sued in Canada over its security forces' shooting of seven protestors, and whose license was suspended in Guatemala after a lawsuit there

·  Pacific Rim mining, which has sued El Salvador over that country's refusal to grant environmental permits

·  HudBay Minerals, sued in Canada over alleged involvement by its security guards in gang rapes and a killing in Guatemala

There's a reason that's there's an entire organization devoted to monitoring the actions of Canadian mining companies - our fantastic partner, MiningWatch Canada - and that the Inter-American Human Rights Commission recently devoted a hearing to the same topic. It's not a pretty record. Let's hope the new government initiative, along with efforts for legal accountability, can start to turn this around. . . .

FACTSHEET: Abuse by Barrick Gold Corporation

Barrick's Porgera Mine

Representing survivors of gang rape and those killed by Barrick Gold Corporation’s security guards at the Porgera gold mine in Papua New Guinea

Download a PDF version of this fact sheet

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