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The Wrongologist

Geopolitics, Power and Political Economy

Corporations Are Using Free Speech To Undermine Regulations

There is a Corporatist supremacy movement operating below the radar in America. US Corporations are using the First Amendment to undermine the corporate regulatory fabric that has been built up since the founding of the Republic. You know about the Supreme Court’s decision in Citizens United, which said that corporations were legal persons entitled to free speech rights. You remember last year’s decision in Burwell vs. Hobby Lobby, where the Supreme Court decided that the mandate in Obamacare requiring corporations to pay for some of their employees’ contraception is a violation of the company’s First Amendment right of religious expression.

Here are a few examples you may not know about:

On April 14, 2014, a federal court ruled that corporations have a First Amendment free-speech right not to tell anyone if they’re financing “war and humanitarian catastrophe” in Congo. The court decided that although corporations can usually be required to disclose “purely factual and uncontroversial information,” but, in this case, that this principle is limited to government efforts to protect consumers from deception.

The regulation was an obscure provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) that requires companies to inform the public if their products use conflict minerals. In the case of conflict minerals, the Act’s goal is to let consumers know if the products they are buying are helping to finance war.

To the court, that provision of Dodd-Frank is unconstitutional, because “it requires an issuer to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups.”

This is part of a growing Corporate movement to use their rights of Free Speech under the First Amendment to escape regulation, and it has been steadily winning victories in the federal courts.

Another case: In 2011, the National Labor Relations Board (NLRB), released a rule requiring businesses to put up an 11”x17” black-and-white poster notifying employees of their rights under federal law. Beneath the official NLRB seal and above the phrase “This is an official government poster,” it informed employees that they have the right to join, or not to join, a union, and that they cannot be coerced into doing either.

The National Association of Manufacturers sued the NLRB and In May, 2013, the US Court of Appeals in the DC Circuit struck down the NLRB’s rule on First Amendment and statutory free speech grounds. The Court said it did not matter that the “speech” in question was a non-ideological poster that stated US law. And it did not matter that the rule placed no constraints on companies’ speech or on the free flow of information. The Court held that the act of compelling a company to “host or accommodate another speaker’s message” was enough to violate its free speech.

Over the past few years, corporations like Nike, Verizon, Google, and the credit ratings agencies like S&P and Moody’s have been crafting (and winning in court) with innovative new First Amendment defenses to blunt all sorts of “government intrusions”.

What’s going on? The right of free speech was closely connected with the defining idea of government by “We the People“. James Madison explained that in his view, “free communication among the people” is “the only effectual guardian of every other right.”

From the Country’s founding until late in the 20th century, the courts didn’t rule that the First Amendment protected very much of corporate speech. But now, Corporations are busy collecting a portfolio of First Amendment case law that establishes that corporations have a First Amendment-protected right to avoid much of government regulation. If this continues, it will change our society:

• There will be no corporate transparency
• No way to enforce workers’ rights
• No way to compel companies to protect investors or shareholders

Most financial regulations will cease to provide meaningful value to consumers.

Perhaps we have to ask our Courts to remember Justice John Marshall, who wrote in 1819, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”

All of the regulations that helped foster a strong economy and a strong middle class during the 1940’s through the 1970’s are now being weakened through a Corporatist revolution, enabled by our courts.

America is looking at the start of another period of unfettered capitalism. The rise of the Corporatists is at hand. We have reached the point now where we have government of the Corporation, for the Corporation.

What are you (we) gonna do about it?

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Transforming America, Part I

For the past few months, this blog has featured this quote:

He didn’t know what was defeating him, but he sensed it was something he could not cope with, something that was far beyond his power to control or even at this point in time, comprehend –Hubert Selby Jr.

Let’s start this year with a meditation about one transformative idea. Not something that is peddled by the DC think tanks, but an idea that lurks just below the surface.

All of us have wondered, like the characters in Selby’s “Requiem for a Dream” (and maybe, with increasing frequency) “hey, something is wrong here”. Maybe you accept mainstream logic, but now you’ve come to realize that things are getting out of control, despite the constant messaging from your ideological god of choice that tries to pull you back to conventional thinking.

Here is the transformative idea for today: The free market isn’t a beautiful self-correcting machine. Instead, it is consuming our society and our environment for the benefit of a very few.

And it isn’t an orderly process; the trajectory is more like a slow free-fall in which the market system moves downward devouring everything, unless it is met by real opposition. In fact, the globalized version of the free market makes life horrible for lots of people, creating a constant need for intervention.

For a couple of examples, you don’t get the Russian Revolution(s) without the Czar trying to play ‘catch up’ with the West. You don’t get the Cuban Revolution without the crimes of the Batista regime.

When there is a backlash against corporatism, especially on the periphery, capitalists come up with a solution. Anyone is better than a bunch of reformers who want society to pay attention to people’s well-being rather than to profits.

With globalization, local thugs became very useful. Folks like Shah Reza Pahlavi of Iran, the Saud family in Saudi Arabia, Mubarak in Egypt, Suharto in Indonesia, and Hussein in Iraq. Most of the time, these folks did the job big business wanted done (even if it was messy). And the American government protected US corporate assets in-country, and propped up the compliant local politicians. The profits got privatized, and the losses socialized, since our taxes paid for the military aid to the dictators, while the corporates skimmed the profits. And much of those profits remained offshore, out of reach of our taxing authorities.

Today, the useful thugs working on behalf of the American Empire are in Washington DC. They have made our political system a self-replicating support system for free market capitalism. We have retained only a veneer of our democracy, while moving rapidly in the direction of an authoritarian business-state combine, an improved version of Mussolini-style corporatism.

Oswald Spengler, who’s “Decline of the West” argued in the 1920’s that the urban culture of Northern Europe was a “Faustian” world, (his term for one of 8 global cultures) characterized by bigness and rationality, eventually to be dominated by the soldier, the engineer, and the businessman.

Doesn’t that seem particularly relevant to today’s America? Spengler thought that democracy is simply the political weapon of money, and that the media is the means through which money operates a democratic political system. Importantly, he said:

The ‘tragic comedy of the world-improvers and freedom-teachers’ is that they are simply assisting money to be more effective.

So here we are. One day, it was 2014, the next day, 2015. What has changed? Nothing. What will change? Nothing, unless you begin a process of thinking about one transformative idea:

The free market doesn’t self-correct. Therefore, it is an ideology that must be changed.

The struggle between market forces and societal needs has always existed. In the 20th Century, we evolved a series of social democracies that kept the rights of the people balanced against the rights of the corporations, with some of the pushback actually coming from businesses themselves.

But today, well-funded efforts to roll back New Deal and New Society social welfare programs are well advanced. And there are only so many times that this blog and others can point out that many Americans have been unemployed since 2008.

The political question is what happens to this great new underclass in America? An underclass that has grown large because of the past 7+ years of economic disparity. Since the free market system that is grinding up our society is a utopian fantasy, we should be able to turn to our democratic system to help solve the real failures of our economic system.

But, our democratic system has been co-opted by the free marketers. So, who can ordinary people turn to for help AGAINST the market?

The corporatists and their captured politicians have a term, “there is no alternative” or TINA. It has come to mean that “there is no alternative” to free markets, free trade, and globalization, if our society is to prosper. They stress TINA to keep ordinary people from seeing that we need to constrain the worst of free market excesses.

The unbridled free market has to die.

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Is Our System More Like Huxley, or Orwell?

Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. – Judge Learned Hand

Yesterday was Human Rights Day. Maybe, with all that has happened to our human rights in post-9/11 America, it is a good time to look very carefully at the current spate of bad outcomes for people who draw attention from our police. One question is, who still believes in our system? Below is one answer that points to where we are:

Trust the police Here is the poll question that produced the above response:

How much confidence do you have in police officers in your community to not use excessive force on suspects: A great deal, a fair amount, just some, or very little confidence?

Note that “no confidence” was not an option for your answer. One way to look at the poll is that it shows that our system is working exactly as it is intended to work. From Ian Welsh: (emphasis by the Wrongologist)

If a police officer tells you to do anything, you do it immediately. If you do not, anything that happens to you, up to and including death, is your problem. The legal system exists today to ensure compliance.

And if you fail to do what is asked, the police will say, “He/she was non-compliant.” That is a way that this part of the American system performs as designed. It rewards compliance, it identifies those who will not obey laws, or who will fight or organize against the system, and then it works to push them down.

In our system, the wolves and the sheep self-identify, they know which group they belong to. If an injustice is committed, if people protest, the most aggressive protestors, even if not violent, are arrested. Our oligarchy is built on the idea that we must keep people from effectively resisting. More from Ian Welsh:

Any part of the population which is inclined to resist, must be taught that it cannot resist. Get out millions to demonstrate against the Iraq war: it will not work. Protest against police killings of African Americans, it will not work.

Occupy Wall Street? That didn’t work either. The system operates in two ways to repress and control people. America’s system has been 80% Huxley and 20% Orwell for decades, but now, the ratios are approaching 50/50. Let’s unpack the Orwell vs. Huxley worldviews: (h/t highexistence.com)
huxley_orwell1

 • Orwell feared the government would ban books.
• Huxley feared that there would be no reason to ban books, because no one would want to read them.
• Orwell feared the government would deprive us of information.
• Huxley feared they would give us so much information that we would be reduced to passivity.

Orwell feared that the truth would be concealed from us. Huxley feared the truth would be invisible in a sea of irrelevance. Orwell feared we would become a captive culture. Huxley feared we would become a trivial culture.
So, we became the trivial culture that Huxley feared. Now, the powers that be are tilting to Orwell to nudge us toward a captive culture.

Huxley’s vision of how human nature or human aspirations could be manipulated for the purposes of the controlling elite rings true in the US. But, Orwell’s depiction of the controlling/interlocking elites of allegedly opposed factions (R’s vs. D’s, government vs. private sector, Wall Street vs. Main Street) is truer than ever before.

So, both are right. Orwell’s fear is already a reality in the East (North Korea, China, Iran) and Huxley’s fear is reality in the West (US, Scandinavia, UK).

Look at how easily the citizenry acquiesced to militarized police in Boston a couple of years ago. Tanks rolled down the streets and officers dressed like they were in Afghanistan demanded that people go inside their houses, for their “safety”. This “army” then searched for the two suspects in the Boston Marathon bombing. This took place over a huge area—whole towns. Was this just the police testing their new toys? Or was it also something darker… like a test of how far the government can go with the Security State? It didn’t hurt that the people got to say they were “Boston Strong” and got the rest of the country to buy in to that.

Power and information are continua. The Orwellian vision tends towards power, while the Huxleyian view tends toward information. However, they are neither separate, nor divisible. Human history has always used deceit as a tool, backed by power, while the biggest bullies have tried to control things since prehistory.

Both manifest legalized lies, backed by legalized violence, wherein the government becomes the largest organized crime syndicate, controlled by the best organized criminals. Welcome to America.

These “crime syndicates” are destroying the foundations of our society, creating the twin near-religions of the State and the Corporation.

The system will not change until the people who want change have enough power to force change. But first, they have to open their eyes to what is happening: Ordinary citizens cannot change the system if the elites don’t agree with the changes the plebes want to make. If they try, they will be arrested or killed at the scene. This must change first.

After that, we can begin working to restore the fundamental systemic change that we brought about during the times of FDR through LBJ.

 

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The Big Picture – An Editorial

“To conquer fear is the beginning of wisdom”Bertrand Russell

Today, we are going to take a short course in The Big Picture. For starters, here is a quote from Digby:

…we are a primitive country. We’ve got idiots on TV screaming about a religion of 1.6 billion people being the toxic cause of violence even as our All American, non-religious school-kids are taking the deadly weapons their parents give them as presents to shoot their schoolmates and themselves. And we have the most sophisticated city on earth acting like a bunch of authoritarian creeps toward people who are doing serious work to stop the spread of an outbreak of a deadly disease — for PR purposes.

Since the Great Recession in 2008-9, we have seen the Federal Reserve move the economy slowly forward while leaving most people behind. Yet, few complain about growing income inequality. People know it and feel it, but don’t vote, or try to do anything else to change things.

• Why doesn’t income inequality upset the average American?
• Why are we more aware of how plastic surgery has changed the looks of an actress than we are about Gen. John Allen’s crazy ideas about winning the war against ISIS?
• How can more Americans be afraid of contracting Ebola than being killed in a car wreck?

What are we afraid will happen if we really dig deeply into an idea or a strategy that is proposed as a “solution” for some problem or other? Why can’t we resist re-tweeting some piece of snark that is the short version of something we believe, or thought we believed?

One visible trend is our increasing distrust of public institutions. We have seen how government, corporations, “charitable” organizations, media, and law-enforcement and the Justice system, all seem to exist for the benefit of those who manage them and not for the public.

This capturing of our institutions is a scary thing, but it is true everywhere in America. You might think that realizing this would spur interest in reform, but in fact, it has just increased our denial. People say in spite of it all, we’ll just soldier on as best as we can, making sure that we and our kids learn to navigate this rigged system.

This is why there is very little interest in politics by young voters.

Another trend is that America’s young know there is no possibility for real growth in personal income. They know that there are policies to promote and stimulate the economy, policies that might work. But, they have no faith in the ability of public officials to implement such policies, so they hang back, hoping somebody comes forward with a better answer. This, from the most connected, most media-savvy, most sophisticated generation in our history.

Voters show no interest in the 2014 mid-term elections. The media asks the same questions of the same Sabbath pundits each week: “Who will win the Senate?” But people don’t care. They watch the media whip up class warfare, cultural warfare and real warfare together into a big stew of propaganda that becomes mind-numbing. So they Facebook, and Tweet.

Most people are both stuck and scared–wanting things to change, but not knowing how. People might get upset, but big change requires commitment and action, and it is hard to get Millennials to change their minds, or to do much.

Political activism succeeds with a clear vision and a solid game plan. Neither Democrats nor Republicans have a list of good ideas about what will work to move us forward. It is possible to attribute political apathy to this lack of ideas, but the destruction of public trust in government is also a big problem.

Changing the future requires getting hold of the levers of government and then using them to do good. That is much more difficult when people don’t vote, and have no faith in their government. Trust in an institution takes a long time to build, but not to destroy. The first step is to take back our captured government.

A basic principle of martial arts is that you use your opponent’s strengths against them. In typical political contests, both sides work to out-raise and out-spend the other. And third parties try to get in the game using the same strategies as the legacy parties.

Today, each candidate is challenging the other’s strength using their own similar strength: It becomes a Sumo-style shoving match.

Conventional wisdom says that it’s expensive to run a campaign (even for local elections, much less national) and so everyone starts their campaign with a fundraising strategy and continues it incessantly even after Election Day. Conventional wisdom says you win with a charismatic candidate, so each party tries to find the best actor they can come up with. Conventional wisdom says candidates should “triangulate” their political views so that they are neither left nor right, just as Democrats are trying to do without success, in Red States this fall.

Instead, insurgent campaigns could be run on social media and the Internet, on as little money as possible—crowdsourcing both dollars and ideas from supporters. They should build constituencies for ideas and for a common future. They should select candidates who can tell the story of a united, desirable future, not some Ken or Barbie cypher for the moneyed interests who run our politics today.

The Big Picture is that we react more strongly to fear than to rationality. We used to fear Hitler. We feared the Communists. We feared al-Qaeda. We fear ISIS. We fear Ebola. We fear for our kids walking to school. We fear that America will let too many brown people across our borders. But we don’t fear climate change, or obesity, or a Congress that can’t enact an agenda to move the country forward.

There should be no mystery about how much corporate power and money drives the culture of fear. Think of it as a 4-step program:

1. Mass media hammers on events that builds general concern and possibly, panic from a few isolated incidents
2. Anecdotal evidence takes the place of hard scientific proof
3. Experts that the media trots out to make comments really don’t have the credentials to be considered experts
4. Entire categories of people (Muslims, West Africans) are labeled as “innately dangerous”

Can a cohesive group with a better way of dealing with the rest of us, gain traction in today’s connected world? Can they help America conquer the long laundry list of fears that constrict and in some cases, stop us from acting on much of anything?

It would take brains, ideas, commitment and energy.

Where are the leaders who have those qualities? How can we support them?

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Friday Music Break – October 10, 2014

Today, we review the song “Sixteen Tons”. Here is the chorus:

You load sixteen tons, what do you get
Another day older and deeper in debt
Saint Peter don’t you call me ’cause I can’t go
I owe my soul to the company store

The song is about economic exploitation of coal miners. Depending on your view of history, the song was written by Merle Travis in 1946, or George Davis in the 1930’s as “9 to 10 Tons”. Of course, older readers know of the 1956 Tennessee Ernie Ford version of the song. It sold 20 million copies as a single!

Part of the exploitation was that miners were paid in scrip, not in cash. Scrip is non-transferable credit vouchers which could be exchanged only for goods sold at the company store. Workers also lived in company-owned dormitories or houses, the rent for which was automatically deducted from their pay. This had the feature of lowering the costs of labor for the mining companies, while making it impossible for workers to accumulate any cash savings. In the US, the associated debt bondage persisted until after the 1914 Ludlow Massacre.

The Massacre was the result of a strike against the Colorado Fuel & Iron Company, owned by John D. Rockefeller, Jr., the Rocky Mountain Fuel Company, and the Victor-American Fuel Company. The strike resulted in the violent deaths of at least 19 people.

Howard Zinn in The Politics of History described the Ludlow Massacre as:

The culminating act of perhaps the most violent struggle between corporate power and laboring men in American history

The Ludlow Massacre quickly evolved into a national rallying cry for labor unions and eventually helped lead to New Deal labor reforms. But over the years, the tragedy in Ludlow Colorado has been largely forgotten.

Here is the Wrongologist’s favorite version of the song by Jeff Beck and ZZ Top’s Billy Gibbons, who toured together this year. They are supported by Tai Wilkenfeld on bass:

Note that the performance ends at 3:49.

Now, please ask yourself how much you are worth. Then look around you and realize that you are also a part of the most underpaid workforce since the days of the company store.

If politics is about power, then the powerful will always have the advantage. There will be an endless loop of the more powerful crushing the less powerful, with any change in the balance of power simply a random fluke, like what happened after Ludlow catalyzed the United Mine Workers.

If politics can be about policy, then power will not have an insurmountable advantage, and progress can happen again.

 

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