Michele Swenson: Corporate Power Trumps Democracy

The notion of “corporate personhood” has been promoted for more than a century by judicial activists, encompassing such decisions as Citizens United vs. FEC. The 2015 paper, “Corporate Power Ratchet: The Courts’ Role in Eroding `We the People’s’ Ability to Constrain Our Corporate Creations,” cites the courts’ role in elevating rights of corporations as a specially protected class above those of natural persons. Often, courts invoke the principle of pre-emption to elevate rights of the corporate-state over the people’s right of democratic self-government to protect their health, safety and environment. Nor have courts been shy about overturning longstanding precedents and usurping the legislative role to promote their own policy views.

cc1No surprise then that the Colorado Supreme Court in two May 2 decisions invoked the right of “pre-emption” under the state Oil and Gas Conservation Act to overturn Fort Collins’ five-year moratorium on fracking and storage of fracking waste within the city, as well as Longmont’s ban on fracking and storage and disposal of fracking wastes within its city limits. Thus, the power of the industry that has been granted special exemptions from Clean Air and Water Safety Acts and other environmental laws trumps democracy and the vote of the people.

Easier than taking on thousands of cities, the American Legislative Exchange Council (ALEC) in alliance with its corporate funders works to overturn local democracy in 50 state legislatures. Since drafting laws pre-empting tobacco bans in the 1970s, ALEC has drafted countless state laws targeting the rights of voters, workers and local governments, advancing voter ID laws, collective bargaining bans and retroactive pre-emption of minimum wage and worker sick leave laws.

The ultimate denial of local democracy has occurred in 11 Michigan cities, where ALEC-backed Emergency Management Laws enable the governor to appoint a single emergency manager empowered to bypass all elected city officials and to cut city wages, end collective bargaining and sell off public assets to the private sector. Flint’s emergency manager switched the city’s water supply from the Detroit system to the contaminated Flint River, poisoning the people.

Colorado legislative and judicial preemptions of local government include prohibition of community broadband, local gun safety laws, minimum wage laws and rent control, as well as bans on plastic bags, fracking, cyanide gold mining and factory farming. In the wake of the devastating Summitville Mine disaster that killed off 17 miles of aquatic life in the Alamosa River, creating a Superfund site requiring perpetual cleanup, the Colorado Supreme Court in 2009 invoked state pre-emption to overturn cyanide hard-rock mining bans in five Colorado counties.

The Colorado Community Rights Amendment (www.ColoradansforCommunityRights.org) reinforces the state constitutional principle that law emanates from the people, for the good of the people, and the right of cities and counties to govern to protect their health, safety and welfare free of corporate-state preemption, so long as laws do not restrict fundamental rights or legal protections for natural persons.

Michele Swenson