The Corporate States of America

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Corporate expansion. What can stop it now? That little leak in the dike of Constitutional law that holds back a flood of special interests has turned into a flood, already, thanks to our muddled Supreme Court. This is going to be spectacular by the time it plays out — and I hope Alito has to eat every word he wrote [THIS LIFETIME, don'cha know!]

Here are three reads on corporate hijinks. The first is an excellent piece from the LA Times on Hobby Lobby. The next two are short reports that indicate how corporations have already pushed the envelope. “Privatize” — a concept that has entered every area of our lives and will leave us less able to function as a nation on every level.

But the corporate Supremes have opened Pandora’s Box, on this one. The sword cuts both ways. For instance:

Hobby Lobby Eco-Fallout: Does Fracking Violate My Religious Freedom?
Gary Wockner, EcoWatch
July 1, 2014

Remember this one? “Be careful what you wish for.”


Danger sign: The Supreme Court has already expanded Hobby Lobby decision
Michael Hiltzik, Los Angeles Times

-Can just anyone claim a religious exemption to Obamacare now? Courts say yes

-The Supreme Court has already expanded the “startling breadth” of the Hobby Lobby case

-Obamacare challengers can now dress up their claims in religious garb–but how will we know they’re sincere?

The Supreme Court has already expanded the “startling breadth” of the Hobby Lobby case Obamacare challengers can now dress up their claims in religious garb–but how will we know they’re sincere?

The Supreme Court wasted no time in delivering a message to anyone who thought its Hobby Lobby ruling was limited to religious objections to coverage of purported abortion methods:

You’re wrong.

The day after handing down the Hobby Lobby decision on Monday, the court issued orders pertaining to six pending cases in which employers claimed religious objections to all contraceptive services required under the Affordable Care Act. The court either ordered appeals courts to reconsider their rejection of the employers’ claims in light of the Hobby Lobby decision, or let stand lower courts’ endorsement of those claims.

In at least one of those cases, the sincerity of the employer’s religious objections is open to question. That shows why allowing a broad “religious” exemption from a federal law can be atrociously bad policy. More on that in a moment.

Tuesday’s orders are just the beginning: The Becket Fund, the religious law firm that represented Hobby Lobby in its legal case, lists 49 pending federal cases in which for-profit companies have brought purportedly religious objections to the ACA. An additional 51 cases involve nonprofit organizations. The floodgates aren’t about to open–they’re already open.

Obviously, when Justice Ruth Bader Ginsburg in her dissent called the Hobby Lobby ruling “a decision of startling breadth,” she didn’t even scratch the surface.

The companies that brought the six cases dealt with by the court on Tuesday are all owned by Catholics or their families. They [are] employers of a few score workers ranging up to several hundred.

Their objections all apply to the ACA’s mandate that their health insurance policies cover contraceptive services to women without co-pays or deductibles. But where the Green family, the owners of the Hobby Lobby crafts store chain, objected only to four birth control devices or methods they considered “abortifacients”–promoting abortions–the others object to all contraceptives, and more.

For example, the Korte family, which owns an Indiana construction company, refuses to pay for or support not only “contraceptives, sterilization, abortion, (or) abortion-inducing drugs,” but “related education and counseling.” (Emphasis added.) In other words, if a woman asks her doctor for advice on reproductive options, the consultation may not be covered.

The Supreme Court says corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women.

The most interesting case, however, was brought by Eden Foods, a Michigan “natural foods” firm. Its Catholic owner, Michael Potter, claimed in his lawsuit that “participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients” offends his “deeply held religious beliefs.”

The appeals court that rejected his motion for an injunction against the mandate was skeptical. Potter’s real position, it suggested, resembled more “a laissez-faire, anti-government screed.” The evidence came from an interview Potter gave last year to Irin Carmon of Salon, in which he stated:

“I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.”

This hint that Potter had merely swaddled an anti-government rant within a “religious” blanket illustrates the main problem with Justice Samuel Alito’s majority opinion in Hobby Lobby: it takes claims of religious scruples for granted.

But how are government agencies or the courts to know when claims of religious piety are just pretexts for some other viewpoint, such as libertarianism or misogyny?

There’s no evidence in the record of Tuesday’s cases that the lower courts conducted any inquiry into the sincerity of the business owners’ religious claims or beliefs. Alito’s majority opinion Monday certainly didn’t offer any guidelines for validating what he established as a qualification for exemption from the ACA mandate.

In a case involving the Gilardi family, owners of an Ohio produce firm, Judge Janice Rogers Brown of the Washington, D.C., circuit appeals court wrote in a 2-1 decision overturning the mandate that “this case is not about the sincerity of the Gilardis’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception. The former is unchallenged, while the latter is unchallengeable.”

But why should that be? If the only requisite for an exemption from this important mandate is a religious claim, why should it not be subject to challenge? Otherwise, how do we limit the exemption only to those with genuinely religious scruples?

(It’s proper to observe that Brown didn’t actually care much about the religious grounds of the Gilardis’ case, though she dressed up her ruling as one dealing with the free exercise of religion. She overturned the mandate in part on the manifestly misogynistic and nonreligious grounds–never mind that she’s a woman–that the government hadn’t shown it has an interest in “the compelled subsidization of a woman’s procreative processes.” The court in its Tuesday orders let her ruling stand.)

Shouldn’t the courts, at the very least, determine if a family-owned company follows its religious precepts consistently? If this were the test, by the way, Hobby Lobby itself might fail: its 401(k) plan for employees has invested via its mutual funds in companies that manufacture and distribute precisely those drugs and devices that it objects to providing via its health insurance plan. The investments were first disclosed by Mother Jones, but are documented in the firm’s public filings.

The investment options for the 401(k) are chosen, and the worker contributions matched, by the firm–how come its religious scruples didn’t apply there?

Allowing exemptions to a federal law based on “unchallenged” and “unchallengeable” claims of subjective belief is the antithesis of secular law. That may be why religious exemptions have been handed out very carefully, until now.

The minimal rule should be, if you want one, prove you deserve it. In the past, courts have been loath to conduct such inquiries, because they can lead down a bottomless, subjective rabbit hole. But the Supreme Court has now turned claims of subjective belief into an enormous loophole. Somewhere, a court may try to narrow that loophole so not just anyone can fit through it. That’s bad for the law, and it may be bad for religion, too. ++

SWAT Teams Claim ‘Corporate’ Exemption From Public Scrutiny
ACLU hits brick wall after issuing public records requests for information about deadly force, incident reports, and more.
Sarah Lazare, Common Dream staff writer
Friday, June 27, 2014

Operators of Special Weapons and Tactics (SWAT) teams comprised of tax payer-funded police and sheriffs in Massachusetts claim they are immune to public records requests about deadly force, incident reports, and more because they are private “corporations.”

In addition to SWAT teams run by individual towns, many of these military-style domestic policing units in Massachusetts are operated by regional “law enforcement councils,” which are bankrolled by tax-payer money and comprised of publicly-funded police and sheriffs.

According to the American Civil Liberties Union of Massachusetts, approximately 240 of the 351 police departments in Massachusetts belong to these LECs.

Some of these LECs have become incorporated with 501(c)(3) status—a classification they say makes them exempt from public records requests.

Jessie Rossman, staff attorney for the ACLU of Massachusetts, told Common Dreams that her organization issued records requests to “a couple of LECs” to obtain information about their policies for a recent report on the militarization of local police. “We got responses from individuals claiming to speak on behalf of the LECs saying they would not be responding because they do not believe they are subject to public records law,” she explained.

This is despite the SWAT teams’ possession of automatic weapons and combat gear, as well as their military-style “counter-insurgency” tactics, which, according to the ACLU of Massachusetts report, turn communities into “war zones.”

As Washington Post writer Radley Balko points out, Massachusetts SWAT teams have an ugly history of brutality and excessive force, including a litany of deaths in botched drug raids. In their report, the ACLU of Massachusetts notes that “unjustifiable force and SWAT raids against people in their homes most often target people of color and the poor.”

In response, the ACLU of Massachusetts announced this week it is suing the North Eastern Massachusetts Law Enforcement Council for information about its SWAT teams, after NEMLEC refused a public records request. NEMLEC possesses a combat-level vehicle and weapons for “military style operations,” according to a statement about the lawsuit.

“NEMLEC can’t have it both ways,” said Rossman. “The same authority that allows them to participate in high risk warrant service, forced entry, and arrests of individuals also means they must be subject to public records law.” ++

Corporate Gag Orders Have a Chilling Effect on Whistleblowers
Washington Post investigation reveals corporations are trying to prevent employees from reporting wrongdoing
Deirdre Fulton, staff writer
Monday, June 30, 2014

Corporations are using overly broad and limiting nondisclosure agreements to prevent employees from reporting wrongdoing or fraud to government officials, according to an investigation published in the Washington Post on Monday.

Lawyers representing whistleblowers say the agreements, being used by defense contractors and hedge funds among other employers, contain language that goes beyond protection of trade secrets.

“There has been a shift from the traditional, sweeping gag orders to more disingenuous variations of these agreements,” Tom Devine, legal director of the Government Accountability Project, told Washington Post reporters Scott Higham and Kaley Belval. “The techniques are becoming much more sophisticated, but they have the same chilling effect.”

The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, which established the Office of the Whistleblower at the Securities and Exchange Commission, also created a bounty program at the SEC to pay whistleblowers. The Post investigation, however, revealed that some nondisclosure agreements prohibit whistleblowers from reaping such financial rewards for their actions. ++

“I believe that unarmed truth and unconditional love will have the final word in reality. That is why right, temporarily defeated, is stronger than evil triumphant.”
~ The Reverend Martin Luther King

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