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Rachel's Democracy & Health News #886


[Rachel's introduction: A provocative new book, Capitalism 3.0, aims to diminish the power of corporations by establishing a new "commons sector" within the economy -- creating new institutions to form a countervailing force.]

By Peter Montague

Books full of new ideas are rare, but here's one worth chewing on: Peter Barnes's Capitalism 3.0. The book is original, readable and provocative. It will definitely hold your attention.

But let's get one thing straight. Despite the title of his book, Peter Barnes is no radical. He is an entrepreneur and investor who co- founded Working Assets, the telephone company. He says, "As a businessman and investor, I've benefited personally from the primacy of capital and am not keen to end it." (pg. 24) On the other hand, he recognizes that, "Capitalism as we know it is devouring creation. It's living off nature's capital and calling it growth."(pg. 26) So, "to save capitalism from itself," (pg. 66) the book offers a whole slew of new ideas. the goal of which is to give capitalism a "software upgrade" to fix what Barnes sees as the system's three major flaws: (1) its disregard for nature; (2) its disregard for future generations; and (3) its disregard for the poor.

Barnes's analysis of the problem is succinct: the history of capitalism reveals two threads: the decline of "the commons" and the rise of the corporation. These two threads are linked because corporations make money largely by taking things from "the commons" (or dumping wastes into the commons) without paying compensation to its owners (all of us).

By "the commons" Barnes means "all the things we inherit or create together," which none of us owns individually. The commons is like a river with three forks:

1. Nature, which includes air, water, DNA, photosynthesis, seeds, topsoil, airwaves, minerals, animals, plants, antibiotics, oceans, fisheries, aquifers, quiet, wetlands, forests, rivers, lakes, solar energy, wind energy... and so on;

2. Community: streets, playgrounds, the calendar, holidays, universities, libraries, museums, social insurance [e.g., social security], law, money, accounting standards, capital markets, political institutions, farmers' markets, flea markets, craigslist... etc.;

3. Culture: language, philosophy, religion, physics, chemistry, musical instruments, classical music, jazz, ballet, hip-hop, astronomy, electronics, the Internet, broadcast spectrum, medicine, biology, mathematics, open-source software... and so forth. (pg. 5)

The commons is a set of assets that have two characteristics: they're all gifts, and they're all shared. (pg. 5) Taken together, all the assets in the commons are our "common wealth." Furthermore, the commons are essential and indispensable; they provide sustenance for everyone. If we fail to protect them, we're sunk.

Barnes points out that, "There's another quality to assets in the commons: we have a joint obligation to preserve them. That's because future generations will need them to live, and live well, just as we do. And our generation has no right to say, 'these gifts end here.' This shared responsibility introduces a moral factor that doesn't apply to other economic assets: it requires us to manage these gifts with future generations in mind." (pg. 5-6)

Our economic system (which Barnes called "capitalism 2.0, or "surplus capitalism") is destroying all three forks of the commons river, and the destruction is happening in two ways:

(1) corporations are "enclosing" (privatizing) the commons (bottling water and selling it, for example; or using the airwaves without paying the owners (all of us) anything; or taking our common-heritage stories, such as Snow White, copyrighting them, and selling them back to us);

(2) corporations are trespassing on the commons by "externalizing" their costs -- dumping toxic wastes into air and water, for example.

Enclosure (privatization) and externalizing give a one-two punch: both activities create corporate profits, simultaneously diminishing the commons.

Because of this one-two punch, and because corporations grow ever- larger without limit, capitalism creates three serious problems:

1. Nature is being destroyed.

2. Enormous inequalities have arisen -- the rich keep getting richer, leaving everyone else behind. Today the wealthiest 5% of us owns more than the other 95% of us. This makes a mockery of democracy, and of the idea that we all start life with similar opportunities;

3. Happiness is in short supply. Despite the enormous capacity of corporations to produce wealth (by enclosing and trespassing into the commons), people say they are no happier now than they were 40 years ago. Surplus capitalism has speeded up life, and made many of us insecure about our future. So what's the point of all this economic activity if it isn't improving people's quality of life? "We need rest, relaxation, and time for companionship and creativity. Surplus capitalism can't give us enough of those things," Barnes points out.

Now we get to the meat: Barnes says these problems cannot be fixed by government regulation, taxation, or public ownership. Government is too easily corrupted by money and power; Barnes sees no way around this harsh reality.

** Regulatory agencies are routinely captured by the people they are supposed to regulate.

** Green taxes will never be set high enough to make a difference, and besides they disproportionately burden the poor.

** Public ownership is no guarantee that an asset will be managed for the benefit of future generations, nonhuman species, or ordinary people -- just look at the way grazing rights and mineral rights on public lands have been mismanaged for more than 100 years. The state does not promote the "common good" -- it rewards the wealthy and the powerful.

"We face a disheartening quandary here. Profit-maximizing corporations dominate our economy. Their programming makes them enclose and diminish common wealth. The only obvious counterweight is government, yet government is dominated by these same corporations." (pg. 45)

The old counterweight to corporate power -- organized labor -- has been "decimated" and the other counterweight -- the mass media -- have been turned into corporate mouthpieces. Campaign finance reform will not work because, "Occasionally a breakthrough [has been] made in campaign financing -- for example, corporations are now barred from giving so-called soft money to political parties -- but corporate money soon finds other channels to flow through. The return on such investments is to simply too high to stop them." (pg. 47)

Barnes goes on to explain (chapter 4) why corporations can never be made "socially responsible," can't be made less destructive by "free market environmentalism," and won't be reformed by massive programs of libertarian privatization.

This is a bleak picture, indeed, but one that longtime Rachel's readers will probably greet with a nod of the head.

Peter Barnes's solution? A 30-to-50-year strategy:

"Throughout American history, anticorporate forces have come to power once or twice per century.... it may take a calamity of some sort -- another war, a depression, or an ecological disaster -- to trigger the next anticorporate ascendancy, but sooner or later it will come. Our job is to be ready when it comes."

"What constitutes readiness? Three things, I believe," says Peter Barnes:

** First, we must have a proper view of government's role. That role isn't to run the economy, or even to manage the commons directly; it's to assign common property rights to trustworthy guardians who will.

** Second, we must have a plan to fix our economic operating system, not just to put patches on symptoms.

** Third, we must recognize that the duration of any anticorporate ascendancy will be brief, and that we must use that small window to build institutions that outlast it." (pg. 47)

Barnes's basic idea is "to fix capitalism's operating system by adding a commons sector to balance the corporate sector." The corporate sector can't be fixed or controlled by government, but perhaps it can be counter-balanced by creating a large and robust "commons sector" as part of the next phase of capitalism, which Barnes calls capitalism 3.0.

Barnes points out that, when we try to put a monetary value on the commons, it far exceeds in size the totality of private wealth. The commons is an enormous asset that we presently allow corporations to use free -- they take valuable goods from it and the dump their garbage into it, all for free. Barnes believes that, if we could create "property rights" in the commons, and then charge corporations for using the commons we could revolutionize the way the commons are viewed and treated; we could create a stream of income for all citizens, most especially benefiting the poor; and by strictly controlling access to the commons, we could protect them for future generations and for nonhuman creatures.

We already have many good examples of property rights in common assets. The Alaska Permanent Fund, is an example Barnes likes. As oil is extracted from the ground in Alaska, a small tax goes into a special fund, which is invested in stocks and bonds. Each year, every citizen of Alaska receives a check in the mail from the Permanent Fund, valued at roughly $1000. To someone who makes $50,000 per year, that $1000 may mean little; but to someone who earns $10,000 per year, that bonus can make a real difference.

Barnes's point is to create a set of "common property rights" -- rights owned by all of us. He wants to "propertize" but not "privatize" the commons, on the model of the Alaska Permanent Fund. Another example is MALT, the Marin Agricultural Land Trust in Marin County, Calif. Family-owned sheep, dairy and cattle ranches in Marin -- on the close northern edge of San Francisco -- have managed to remain in the ranching business by selling conservation easements to MALT. Ranchers give up the right to develop their land, and the public gets a lasting pastoral landscape and a viable agricultural economy. Some 40,000 acres has been preserved by MALT -- about one-third of all the agricultural land in the county.

In his next-to-last chapter, Barnes describes a whole range of institutions -- many already functioning well -- that embody common property rights for the purpose of protecting our common wealth.

By establishing common property rights, Barnes would create a "commons sector" within the economy. He envisions it growing very large and thus providing a countervailing force to the corporate sector. This large commons sector is what would distinguish capitalism 3.0 from our present economy. (More details -- and some questions -- next time.)


From: New York Times
December 12, 2006


[Rachel's introduction: "It is no longer shocking that special interests have proved adept at corrupting Congress and state legislatures by using humongous campaign contributions to win government favors. Now, though, these same special interests are turning their attention, wallets, and political firepower to buying up state judges..."]

By Dorothy Samuels

It was bound to happen sooner or later. Special interests have long targeted candidates for executive offices, like president and governor, and legislative offices, like Congress and state legislatures. It was just a matter of time before well-heeled business and other interests would expand their influence-peddling efforts, and begin pouring large amounts of money into previously sleepy judicial campaigns.

Several years ago, it started happening -- first in just a few states, then spreading to a lot more. The unwholesome result is the dawn of a new era of raucous million dollar-plus campaigns for key state judgeships that is forcing more and more would-be jurists to bond with special interest backers, and invest in cheesy 15- and 30-second TV spots, if they want to get on the bench, and stay there.

As spending by special interests in state judicial elections soars into the stratosphere, something very precious to Americans is being grievously compromised. And in certain pockets of the country, it seems well on the way to being lost altogether. That precious something is the integrity and impartiality of the nation's courts.

Justice, the saying goes, is blind -- symbolized in courthouses across the country by statues of Lady Justice, blindfolded so she can rule without fear or favor. But increasingly, there is one thing Justice in America can see quite clearly -- who is giving her money. A modern rendition of Lady Justice would show her with one arm extended, reaching for large campaign contributions. Those contributions -- from insurance companies, big business, tobacco companies, the building and health care industries, unions, trial lawyers, the religious right, and other special interests -- do more than create a bad appearance. They seem to be having an effect on the decisions courts are making.

If we want to preserve an independent and impartial judiciary -- something that is a shining part of what America stands for, and an indispensable guardian of American rights -- getting rid of the corrupting influence of money sloshing around in judicial campaigns is now a matter of genuine urgency.

I. Bad Alchemy: Turning Judges Into Politicians

It is no longer shocking that special interests have proved adept at corrupting Congress and state legislatures by using humongous campaign contributions to win government favors. Now, though, these same special interests are turning their attention, wallets, and political firepower to buying up state judges, calculating -- correctly, sad to say -- that pouring millions into helping to seat judges likely to side with them in important cases can be a darn good investment.

Just how good an investment was driven home last month, when the United States Supreme Court declined, without comment, to review last year's 4-to-2 Illinois Supreme Court decision that threw out, on specious legal grounds, a $10.1 billion award against Philip Morris U.S.A. for enticing consumers to buy "light" cigarettes on a fraudulent promise they were lower in tar and nicotine.

Predictably, critics of big consumer class actions -- and of the plaintiff-friendly Illinois jurisdiction of Madison County in particular -- joined the world's largest cigarette company in applauding the high court's pass.

But some victory. The state Supreme Court justice who cast the deciding vote in the case, a former lower court judge named Lloyd Karmeier, received million of dollars in campaign support in 2004 that Philip Morris and other tobacco interests tendered for the very purpose of trying to reverse the enormous "light" cigarette award. They got what they paid for.

Judicial ethics rules exempt campaign contributions from their otherwise strict approach of requiring judges to disqualify themselves whenever their impartiality might reasonably be questioned. But given the history, Justice Karmeier's failure to voluntarily recuse himself was a disgrace.

The Philip Morris case, it should be noted, was not the first time that Justice Karmeier, a Republican, ruled for big contributors in a high-profile case.

In 2004, fresh from the record-setting campaign brawl in which he and his Democratic opponent raised in the vicinity of $9.3 million in political contributions -- an amount surpassing the fundraising totals in 18 U.S. Senate races that year -- Justice Karmeier voted to reverse a breach of contract verdict of more than $450 million against State Farm Automobile Insurance Company. Legally, the result may not have been unreasonable, but it nevertheless carried a stench. While the case was pending, State Farm employees, lawyers, and others affiliated with the insurance company made $350,000 in direct contributions to Justice Karmeier's all-but-bottomless election war chest. Groups closely tied to State Farm gave over $1 million more.

Mr. Karmeier is hardly alone.

Examples abound of state judges rendering rulings favorable to their large contributors in significant cases. Indeed, a study last fall of the Ohio Supreme Court by Adam Liptak, Janet Roberts, and Mona Houck of The New York Times found that sitting on cases after receiving campaign contributions from the parties involved, or from groups filing support briefs, is routine. In the 215 Ohio cases with the most glaring potential for conflicts of interest over a 12-year period, state justices recused themselves just nine times. Ohio justices voted in favor of their contributors 70 percent of the time.

In 2002, Justice-at-Stake, a judicial reform group, surveyed 2,428 state court judges around the country . More than half of them candidly conceded that campaign donations influenced their decisions at least some of the time.

With business interests -- including manufacturers of flawed and unsafe products and big environmental polluters -- now outpacing the organized plaintiffs bar and everyone else in underwriting candidates in expensive judicial races, strong enforcement of established consumer, health, and environmental protections is in serious jeopardy, along with fair functioning of the legal system, and public respect for the courts.

Although the judiciary's big money problem is most visible at the state Supreme Court level, where high-spending TV advertising underwritten by special interests is becoming the norm, money is increasingly infecting the justice system at lower levels, too.

Last June, for example, The Los Angeles Times reported that 17 incumbent district judges in Nevada on the ballot of the last judicial election raised over $1.7 million in campaign funds. Much of the money was harvested from attorneys and casinos and other corporations with cases pending before them. Of the 17 incumbents, the report further noted, 13 ran unopposed, but collected nearly $1 million in campaign contributions anyway.

At the end of the campaign, they were sitting on unspent contributions of $634,000, which they were not required to return. Instead, Nevada law provides broad leeway for judges to roll over excess contributions to their next campaign -- discouraging future challengers -- or to pay for fancy restaurant dinners or other lifestyle enhancing activity that might creatively be justified as campaigning.

The resulting damage here is palpable. Courts derive their legitimacy from their perceived neutrality and independence. Judges, whose constitutional role it is to fairly apply the facts and law in individual cases, are supposed to stand up to powerful interests when necessary -- with no exemption for campaign contributors. When check- wielding interest groups support congenial judicial candidates -- in essence, buying up seats on the bench -- they undermine the fundamental mission of the courts.

II. The Turning Point

Thirty-nine states choose at least some of their top judges by election , creating a patchwork of partisan and non-partisan contests, and uncontested up-or-down votes on appointed incumbents, known as "retention elections."

In all, about 86 percent of America's judges are required to face voters.

Judicial elections have always been a breeding ground for conflicts of interest. Beyond a candidate's relatives and personal friends, and a smattering of good government types, after all, who would feel motivated to contribute to the average judicial contest -- except for those looking to improve the odds of favorable rulings, namely lawyers and their clients? But, until recently, contests even for the top state judgeships were typically quiet, low-visibility affairs, and the fundraising and conflict issues relatively benign. In many places, campaign contributions were less of a worry than other perennial problems, like undue clubhouse influence, partisan or ethnic voting defeating worthy candidates, low voter interest, and a shortage of quality candidates willing to run.

But in just a few short years, state judicial campaigns have changed dramatically, and not for the better. Thanks to a huge influx of special interest money, once tame and dignified judicial contests are more and more degenerating into nasty and expensive partisan slugfests, complete with inaccurate and distorting TV ads that mimic the worst excesses of campaigns for Congress or governor.

In the December 1 issue of American Lawyer, Alison Frankel retraces the history of the successful business-backed movement to remake the civil justice system to render it less hospitable to product liability suits and high damage awards for people's injury claims -- the prime driving force turning judicial elections into corruptive money pits. In the late 1980s in Texas, Ms. Frankel recounts, a coalition of businesses and doctors formed the Texas Civil Justice League and proceeded to lobby the state legislature for a cap on punitive damages and other pro-defendant changes in the law.

As part of their strategy, they also got heavily involved in state judicial elections by, among other things, distributing millions of playing-card-sized voter guides through local businesses and doctors' offices. By 1995, these efforts had succeeded in transforming the Texas Supreme Court. "The new Texas court showed its allegiance quickly," Ms. Frankel writes, "with pro-business ruling on punitive damages and expert witnesses."

But the real turning point came in 2000.

In October of that year, the United States Chamber of Commerce, the prominent business lobby, announced that it would spend more that $1 million on "educational" advertising in Mississippi and a handful of other states where companies complained of "frivolous" lawsuits.

Its stated goal was to warn voters about judicial candidates who might overrule so-called tort reform legislation backed by business. The Ohio and Illinois Supreme Courts had already done just that, throwing out sweeping tort law changes approved by those states' legislatures on state constitutional grounds.

The $1 million the national chamber of commerce was committing came on top of millions more it was already contributing to advertising campaigns being conducted by its affiliates in Michigan and Ohio dealing with Supreme Court races in those states.

Officials of the national chamber contended more aggressive involvement in judicial races was necessary to counteract the influence of contributions trial lawyers were making to judicial campaigns. They were suggesting a link, not entirely unfairly, between trial lawyer largesse and rulings striking down pro-business "tort reform" laws passed by state legislatures. (Of course those laws' path through the legislatures had been well-greased by the chamber's own generous donations to state lawmakers' campaigns.)

In 2000, state Supreme Court candidates collectively spent $45.6 million on their races , an astonishing 61 percent increase over two years before, and double the total raised by judicial candidates in 1994.

At least half of all donations came from two sectors of society with a big stake in court decisions: business interests and lawyers.

These swelling war chests launched unprecedented judicial "air wars," and a discernible coarsening in the tone of judicial campaigning. All together, more than $10 million was spent barraging voters with more than 22,000 airings of television ads, according to data contained in the 2000 edition of "The New Politics of Judicial Elections," the bi- annual report on judicial campaigns issued by Justice-at-Stake, New York University Law School's Brennan Center for Justice , and the National Institute for Money in State Politics .

The television commercials, many of them decidedly un-judgelike attack ads, were bought either by the judicial candidates themselves or by political parties and interest groups. But at least, all those 15- second and 30-second TV ads were confined to just four states with fiercely contested races -- Ohio, Mississippi, Michigan, and Alabama. The rest of the country was spared.

III. The Virus Spreads

In the 2002 election cycle, regrettably, more states were infected by this special-interest-money fever. More special interests began targeting state Supreme Court seats, and television ads became a mainstay of judicial elections in more than twice as many states as in 2000 -- even though fewer states had contested elections that year. In Mississippi, the average cost of winning a judgeship skyrocketed to more than $1 million, compared to just under $400,000 two years earlier -- the increase, perversely, both driven and underwritten by special interests.

In June 2002, the U.S. Supreme Court, made it harder to contain the damage. Its 5-to-4 ruling in one landmark case, Republican Party of Minnesota v. White, struck down, on free speech grounds, a Minnesota rule forbidding judicial candidates from announcing their views on contentious public policy issues.

The issue of candidate speech in campaigns for the bench, it should be said, is not a simple one. Once states decide to elect judges, voters need meaningful information so they can determine who, from their standpoint, would make a better judge, and candidates are entitled to leeway beyond what some state judicial codes have historically allowed to make their case.

The difficult challenge, which Justice Antonin Scalia's majority opinion brushes past, is to spell out an approach that leaves adequate room for campaign speech while making clear that states retain the authority to draw a line against judges and judicial wannabes promising, or coming perilously close to promising, to rule a particular way on an issue percolating in the courts.

Emboldened by the White ruling, state supreme court candidates and special interests spending on their own ran television ads in 11 competitive judicial races in 2002, appealing to voters by invoking hot button issues like tort liability and crime. In nine of those contests, the candidates who spent the most on ads won.

Former Justice Sandra Day O'Connor, a fervent crusader in her retirement for preserving judicial independence, has lately expressed regret about her deciding vote in the White case.

Justice O'Connor devoted most of her concurring opinion to detailing her longtime opposition to judicial elections and support for merit appointment of judges, but ultimately concluded that if states persist in having judicial elections, candidates must be allowed to have their full-throated say.

Whatever one's view of the underlying First Amendment issue, the eloquent dissenting opinion filed by Justice Ruth Bader Ginsburg , warning of the potential for increased politicization and undermining of the judiciary's special role, now seems prescient. Justice Ginsburg and her fellow dissenters, Justices John Paul Stevens, Stephan Breyer, and David Souter, also pointed to the affront to due process when litigants must appear before judges whose apparent neutrality is compromised not just by campaign fundraising but by their outspoken statements on issues during an election.

But back to the timeline. Since 2002, the involvement of moneyed interests in state Supreme Court elections has only escalated . The $24.4 million candidates and interest groups spent on TV ads in 2004 more than doubled the previous record set in 2000. The average amount raised by winning candidates who raised any money was about $650,000, compared to $450,000 in 2002.

"A perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special interest politics is descending on a growing number of Supreme Court campaigns," declared the 2004 edition of "The New Politics of Judicial Elections." State supreme court contests, the report further noted, "are becoming epic battlegrounds in the tort liability wars, the culture wars, and other contests where powerful groups and wealthy donors seek to install judges who will rule in their interest, not the public interest."

This year the trend continued. Voters went to the polls in 22 contested Supreme Court races in 11 states on November 7. TV ads appeared in all but one of the states, and new candidate fundraising records were set in four states , according to the Brennan Center of Justice. In at least eight Supreme Court campaigns, fundraising totals soared past $1 million. In Washington State, independent advertising by special interest groups in furtherance of an unsuccessful primary campaign to oust the state's incumbent Supreme Court Chief Justice, Gerry Alexander, exceeded $1.3 million, according to a recent report in the Seattle-Post-Intelligencer.

The doubts created about judicial impartiality are soaring just as rapidly.

IV. The Race for a Cure

Federal court administrators use the term "judicial emergency" to refer to federal jurisdictions where the appointment process has lagged in filling judicial vacancies. In states where judges are chosen by election, by contrast, the real "judicial emergency" isn't vacancies, but the degree to which courts are now filled with judges who are beholden to the moneyed interests that helped elect them.

Of course, no method of choosing judges is perfect or altogether free of politics. Appointive systems breed their own set of confounding issues. That has never been more true than today, with the tremendous partisan wrangling at the federal level over the qualifications and ideology of presidential court nominees.

But judicial elections that are increasingly polluted by enormous floods of special interest money are far worse. The disturbing role that money now plays -- which is only getting worse -- seals the case for abandoning elections in favor of merit selection.

Even merit selection does not completely remove special interest money from the process -- special interests can still contribute to governors, or whoever is doing the appointing, and they lobby for certain kinds of judges to be appointed. But by using a process that assigns a major role in the winnowing of applicants to an independent blue ribbon screening panel not controlled by the appointing elected official -- the course long urged by many bar associations and civic groups -- special interest influence can at least be limited.

Unfortunately, merit selection of state judges has to be a long-term goal. There is still considerable popular support for the idea of electing judges, and special interests that are doing well with their pay-to-play contributions to judicial candidates have every selfish reason to defend the status quo.

On the encouraging side, the defeat this past election of several ballot initiatives backed by interest groups seeking to cut back on judicial power and independence was a sign voters understand the importance of maintaining a strong court system. In the aftermath of November's elections, debate over the problem of money in judicial elections is intensifying, and the list of states considering some sort of reform is growing.

Short of the wholesale replacement of judicial elections with a merit appointment system, the next best antidote would be replacing the special-interest money flowing to judges with clean public financing. North Carolina recently adopted a public financing system for judicial elections , and it seems to be working well so far in enhancing judicial independence.

More rigorous financial disclosure is also needed. As Public Citizen has usefully detailed , for example, the Chamber of Commerce has a history of channeling electioneering money to front groups in order to disguise pro-business support for favored juducial candidates.

It would also help if judges who benefit from huge campaign donations from special interests would have the good sense and decency to recuse themselves when big cases involving those same interests come before them. State bar associations, ethics boards, and state legislatures should be pushing for tougher recusal rules -- and pointing out the illogic of saying that a small gift by a litigant to a judge creates an impermissible conflict, but a multi-million-dollar campaign contribution, which can make the difference between a judicial candidate winning or losing his judgeship, does not. In states that hold partisan judicial elections, switching to nonpartisan campaigns, which are typically less expensive, and bereft of party labels inappropriate for judicial office, would be another positive tweak.

The U.S. Supreme Court, for its part, should revisit its decision in the White case to at least make clear that its permissive attitude toward candidate speech does not extend to barring states from curbing the direct involvement of judges in hitting up donors, or promising voters how they would resolve a particular case or churning legal issue.

It is bad enough that the ever-increasing cost of running for legislative or executive office fosters cozy ties between politicians and special interests looking to influence government decisions. The extension of that seamy pathology to powerful elected judgeships marks a disturbing escalation of the political influence game.

Judges are supposed to be different.

Legislative and executive officials represent their various constituencies. Judges, in contrast, are supposed to represent only the ideal of justice. A judge deciding a case shouldn't be worrying how ruling a certain way might affect campaign fundraising, or whether it might invite a blitz of negative TV ads in the next election.

It is time -- long past time, really -- to drain the influence money from America's system of justice.

Lela Moore contributed research for this article.


From: Omaha (Neb.) World-Herald
December 20, 2006


[Rachel's introduction: In 1982, citizens of Nebraska voted to prohibit corporations from farming in their state. Earlier this month, a group of unelected judges voted to overturn the will of the Nebraska citizenry and give corporations the same rights as the individual humans who operate family farms.]

By Bill Hord

Lincoln, Nebraska --- A three-judge panel of the 8th Circuit Court of Appeals in St. Louis today ruled that Nebraska's ban on corporate farming is unconstitutional.

The panel upheld a ruling last year by U.S. District Judge Laurie Smith Camp that struck down the ban, enacted as Initiative 300 (I-300) by Nebraska voters in 1982.

I-300 has been considered the toughest restriction in the nation on farming by non-family corporations. Its demise also could bring an end to corporate farming bans in five other states.

Smith Camp had ruled that I-300 discriminated against out-of-state investors by requiring that one member of a Nebraska family corporation be involved in the day-to-day operation of the farm.

An appeal is nearly certain, said Nebraska Farmers Union president John Hansen, one of the leading proponents of Initiative 300. "But that decision has not been made yet," Hansen said. Hansen said the panel's ruling was under review by the Attorney General's Office and other lawyers who are involved as defenders of I-300.

Before Smith Camp's ruling last year, Initiative 300 had withstood numerous court challenges over its 24-year life. "This is not a good day," said Hansen.

The appeals panel upheld Smith Camp's determination that Initiative 300 violated a federal constitutional provision that limits how much states can regulate interstate commerce.

An appeal would first go to the full 8th Circuit Court. If again upheld, an appeal would go to the U.S. Supreme Court.

The original case was brought by former State Sen. Jim Jones of Eddyville and five others who said the ban restricted their right to benefit from corporate business practices.


From: Healthy Building Network
December 20, 2006


[Rachel's introduction: Yesterday the environmental movement entered a new phase when the Healthy Building Network completed construction of its first "green building" to start replacing homes lost during hurricanes Katrina and Rita. Environmentalists running a local green business, serving a local need -- this is new. You can help.]

By Bill Walsh

Dear Friends,

Seasons Greetings from the Healthy Building Network (HBN). I've been waiting to write to you this holiday season until the day I could share this thrilling piece of news with you: Today, HBN's Unity Homes project -- -- has just completed construction of the first prototype Unity Home in North Gulfport, Mississippi!

We are closer than ever to realizing our goal of providing healthy, green, affordable housing to families in the region devastated by hurricanes Katrina and Rita, and now I'm asking for your continued support of this groundbreaking initiative.

Click to support the Healthy Building Network this holiday season.

North Gulfport Community Land Trust's Rose Johnson (center) with HBN's Mississippi Operations Director Lillie Bender (right)

The first Unity Home is set in North Gulfport, Mississippi

The Unity Home improves upon standard modular design with numerous energy saving components, low VOC finishes, and the elimination of formaldehyde and PVC plastic (also known as vinyl) to the maximum extent possible. Next month we will begin phase two of the project -- planning the construction of a modular home factory in the region. The factory will have the capacity to produce a minimum of 250 affordable homes per year, supplying people in the Gulf Coast and Delta regions with hurricane resistant, energy efficient and comfortable homes that are high quality and affordably priced.

The Unity Homes project fills a critical need for healthy affordable housing in the Gulf Coast region. I hope we can count on your support of this vital effort. Click here to make a secure online contribution to HBN and the Unity Homes project.

The construction of the first prototype home is the result of innovative collaborations that are the hallmark of the Healthy Building Network. In Mississippi we have established essential new partnerships with local community-based groups. In fact, the first prototype Unity Home is being donated to the North Gulfport Community Land Trust. We have also benefited from vast amounts of pro-bono legal and strategic support, and worked with leaders in the fields of green architecture and design. Visit the Unity Homes website to learn more about our partnerships, view our construction gallery, and to take a virtual tour of the home.

The Healthy Building Network and the Unity Homes project are both nonprofit ventures supported entirely by contributions from charitable foundations and individuals like you. Last year you helped HBN exceed our goal in our first-ever public appeal for funds and your support truly energized our work. We appreciate your support and hope that this year you will make a generous contribution to help bring the Unity Homes project into full scale production.

The need for rebuilding in the Gulf remains great and the Unity Homes project offers proof that we can meet this urgent need with green, healthy, affordable homes. To show our gratitude for your support, when you make a monthly pledge or a one time gift to HBN you may choose from this year's updated selection of special premium gifts.

With thanks in advance for your consideration, all of us at the Healthy Building Network send our wishes for a happy and peaceful holiday season.

Donate now at


From: Contra Costa (Calif.) Times
December 1, 2006


[Rachel's introduction: As part of his legacy to future generations, President Bush is dismantling the U.S. Environmental Protection Agency's library system, destroying an irreplaceable resource developed at considerable expense over 35 years.]

By David Goldstein

WASHINGTON -- Concerned about the kinds of pollutants spilling into your local rivers and streams and how they could affect your health?

As the Environmental Protection Agency closes some scientific libraries around the country, EPA scientists and other environmental advocates worry whether that kind of information could become harder to find.

They fear that the agency's plan to save money by replacing printed resources with digitized versions on the Internet could make information less -- not more -- accessible.

"Nobody is against modernization, but we don't see the digitization," said Francesca Grifo, a botanist and the director of scientific integrity at the Union of Concerned Scientists, an advocacy group for the environment and other scientific issues. "We just see the libraries closing. We just see that public access has been cut off."

The EPA has closed three of its 10 regional libraries, branches in Kansas City, Mo., Dallas and Chicago that serve 15 states. EPA officials said that no information would be lost and that public access would be improved rather than compromised.

"EPA is committed to ensuring the agency's library materials are available to employees, the public, the scientific community, the legal community and other organizations," Linda Travers, the acting assistant administrator of the EPA's Office of Environmental Information, said in an e-mail.

Travers said material from the closed libraries would be available on the agency's Web site ( in January and was accessible now through interlibrary loans. She said EPA-produced documents from all 21 libraries in the agency's network that could be digitized would be accessible through the Internet within two years.

But the closing gives ammunition to scientists, open-records supporters and members of Congress who think that the Bush administration is weakening the EPA. An internal agency memo last summer spelled out plans to close laboratories, cut senior-level scientists and reduce environmental oversight.

Steve Kinser, a Superfund project engineer in Kansas City and the president of the local chapter of the National Treasury Employees Union, which represents the EPA's professional employees, said the developments had made him look forward to his retirement next year even more.

"Our ability to do our job is being tested at every turn," he said. "I don't know if I can say anything more plain than that."

Unions that represent 10,000 EPA scientists, engineers and other employees have complained to Congress about the library closings. Several lawmakers have asked the Government Accountability Office to investigate.

In a letter Thursday to EPA Administrator Stephen Johnson, four Democrats in the House of Representatives who probably will play influential roles next year on EPA issues told him to stop "destruction or disposition of all library holdings immediately."

"It now appears that EPA officials are dismantling what is likely one of our country's most comprehensive and accessible collections of environmental materials," they wrote.

The authors were the ranking Democrats on four House committees that oversee EPA issues: Reps. Bart Gordon of Tennessee, Science; John Dingell of Michigan, Energy; James Oberstar of Minnesota, Transportation; and Henry Waxman of California, Government Reform.

Regional EPA libraries in Boston, New York, Philadelphia, Atlanta, Denver, San Francisco and Seattle remain open, though some have reduced hours. EPA spokeswoman Suzanne Ackerman said she knew of no current plans to close any others.

The EPA also has shuttered its headquarters library in the nation's capital as well as a specialized library on chemicals, with little or no public notice.

"They're really acting like their hair's on fire," said Jeff Ruch, the executive director of Public Employees for Environmental Responsibility, a nonpartisan watchdog group. "They're quickly closing the collections, boxing them and shipping them to repositories."

Critics have questioned why the EPA is closing libraries to save $2 million when its own study in 2004 found that they saved the agency more than $7.5 million annually in staff time.

Travers said staff use of the libraries was down dramatically in recent years because of the ease and speed of the Internet.

The agency isn't digitizing everything from the closed libraries, however. Critics worry that some non-EPA materials might be destroyed, though EPA spokeswoman Jessica Emond said that only outdated documents would be discarded.

But Bill Hirzy, an EPA chemist, said the chemical library was told to "just literally throw in the Dumpster" a valuable collection of environmental journals.

"Just throw them out," he said. "We managed to put a halt to that. It's that kind of craziness that's going on down there."

The libraries contain scientific data on a variety of environmental topics, from acid rain to wetlands. Trained librarians guide EPA scientists -- as well as the homeowner concerned about the construction project next door -- through a trove of reports, books, scientific journals, maps, microfilm and other resources.

Among their holdings are obscure articles and publications usually unavailable on the Internet.

"We don't know which items are being tossed and which items are being saved," said Leslie Burger, the president of the American Library Association. "They have 35,000 to 50,000 unique documents available only in EPA libraries. If that information is not saved, it's gone forever."

Martha Keating, a former EPA air-quality expert who's now a children's environmental health researcher at Duke University, said the library closings and the boxing-up of their contents for storage reminded her of the ending of the film "Raiders of the Lost Ark."

"It's like that last scene where the forklift is putting the boxed-up ark in a federal warehouse," she said. "That's what I envision. It's something that's never to be seen again."

Copyright 2006 McClatchy Washington Bureau and wire service sources.


From: Washington Post (pg. B1)
December 4, 2006


[Rachel's introduction: Industrial chemicals are turning male fish into females. Are humans being affected? Some scientists say Yes. "This is a transgenerational problem that is undermining the integrity of humans," says Dr. Theo Colborn.]

By David A. Fahrenthold

Growing evidence that chemicals in the environment can interfere with animals' hormone systems -- including the discovery that male Potomac River fish are growing eggs -- has focused the attention of environmentalists and scientists on a new question: Are humans also at risk?

A decade ago, the very idea that pollutants could interfere with a body's chemical messages was near the fringes of science. But now, it is an urgent topic for lawmakers and researchers around the world, and especially in the Washington area.

In recent years, researchers have linked some common chemicals to troubling changes in laboratory rodents and wild animals, including reproductive defects, immune-system alterations and obesity.



In recent years, scientists and lawmakers have become more concerned about pollutants in the environment that appear to interfere with natural hormone systems. A few of the most widely known examples:

Bisphenol A -- Description: Building block for plastics. Found in: Clear plastic bottles such as those used by hikers and infants, as well as resins used to line food and drink cans. Results of research: In animals, low doses have been linked to low sperm production, altered growth and behavioral changes. The chemical industry says other studies show that the chemical is safe.

Phthalates -- Description: Chemical additives that increase plastic's flexibility. Found in: Flexible vinyl toys, wallpaper and electronic devices. Results of research: In animals, these chemicals affect the functioning of male brains and sex organs. In humans, one recent study found a correlation between mothers' exposure and subtle developmental changes in baby boys. The chemical industry says that there is no proof that human health is at risk.

Treated sewage -- Description: Can include natural hormones excreted by humans and artifi cial hormones such as those in birth-control pills. Found in: Rivers and streams where treated sewage is released, including the Potomac River. Results of research: Blamed for causing fi sh in several streams to be "intersex," with both male and female characteristics.


For now, no connections to human ailments have been proved. But some studies have provided hints that people might be affected by crossed hormones, and activists wonder if this kind of pollution could contribute to diabetes, birth defects and infertility.

"There's a lot of concern that a lot of chemicals to which we are exposed routinely, and without our knowledge, are interfering with the way hormones work," said R. Thomas Zoeller, a professor of biology at the University of Massachusetts at Amherst.

The Metropolitan Washington Council of Governments is planning to host a public forum about hormone-disrupting pollution this spring. U.S. Reps. James P. Moran Jr. (D-Va.) and Chris Van Hollen (D-Md.) have said they plan to press the Environmental Protection Agency about its failure to develop a program to test chemicals for hormonelike effects, as ordered by Congress in 1996.

The idea that natural hormone messages can be tampered with is not new; for decades, women using birth-control pills have been counting on a man-made chemical to do just that.

But the current concern is much wider: Some fear that modern chemistry might have unwittingly created other compounds with hormonelike effects and that they might have spread widely around the globe.

In the past few years, scientists working with animals have found potential problems with several pollutants, among them rocket-fuel components, pesticides and additives to soap. Among the most heavily researched:

** Phthalates, a family of additives used to make vinyl plastic flexible and prevent perfume from evaporating, have been linked to lower sperm counts and other sexual problems in male rats, as well as to heightened allergic reactions in the animals. Chemical industry officials have said that these tests used unrealistically high doses and that the results are not likely to translate to humans.

** Bisphenol A, used as a building block for hard plastic goods like bottles and as a resin to line food cans, has been connected in some experiments to abnormal sexual development in male lab rodents, as well as a predilection for obesity. Officials from the chemical and pesticide industries have vigorously criticized these results, saying that other studies have shown the chemical to be harmless.

** Treated sewage, which carries human estrogen and birth-control pill components excreted in waste, has been linked to "feminized" male fish in waters around the world. In the St. Lawrence River in Canada, a recent study found that a third of male minnows had female characteristics. Another example might be the Potomac, though the cause of its problems has not been officially pinpointed. The EPA and sewage-plant officials have said they are working on ways to better clean the wastewater.

The study of endocrine disruptors began in the late 1980s and early 1990s, with scientists struggling to add up such oddities as male birds with female organs in the Great Lakes and sexual defects in Florida alligators.

They eventually found that some chemicals were turning on hormone switches in the body's endocrine system that trigger biological processes. Others blocked the switches so natural hormones couldn't get through.

That revelation meant that a pollutant could be harmful even if it wasn't poisonous and didn't cause cancer. Even small doses could cause major damage, if they came at a key time when hormones were guiding pregnancy or early development.

"We have to ask different questions," said John Peterson Myers, an activist and former scientist based in Charlottesville. He joined with scientist Theo Colborn and writer Dianne Dumanoski to write a book laying out their concerns, 1996's "Our Stolen Future."

Today, despite the wealth of studies in animals, the implications for human health are unclear. One of the most dramatic studies examined the sons of mothers whose bodies contained phthalates. It found no major birth defects but did show that the higher the phthalate level, the greater chance that the boys' bodies would show subtle signs of being "undermasculinized," according to researcher Shanna Swan, director of the Center for Reproductive Epidemiology at the University of Rochester.

Still, that falls well short of a smoking gun: Humans are not laboratory rats, so scientists say it is exceedingly hard to craft a study that shows a particular chemical caused a particular problem, and not genetics, diet or some other factor.

"They're nowhere near cause-and-effect," L. Earl Gray Jr., a senior research biologist at the EPA, said of human studies. "We're showing correlations and associations" between pollutants and human health effects, he said, but no indisputable sign that one causes the other.

Officials from the chemical and pesticide industries have vigorously defended their products, saying they see no reason for concern about products in the environment interfering with human hormones.

Some scientists have also pointed out that human diets have always included some estrogen-like compounds: They occur naturally in wine and soy-based products, for example.

Stephen H. Safe, a professor of veterinary physiology and pharmacology at Texas A&M University, said that overall, despite our poor diets, "what does the data say about our health in this country? We're living longer... You know, where are these endocrine threats?"

Still, concerns that human health might be in danger have led to recent bans on certain phthalates in young children's toys imposed by the European Union and the City of San Francisco.

Activists in the United States have attacked the EPA for what they believe is a delayed response to the problem. The agency has defended itself by saying that it has spent millions on other research programs looking at ways to identify and limit endocrine disruptors and that it hopes to begin the long-delayed chemical testing program next year.

Some activists fear that damage is already being done. They caution avoiding plastic baby bottles, which could contain bisphenol A, and reducing consumption of animal fat, where some environmental pollutants can concentrate.

"I feel terrible because we haven't moved on this faster," said Colborn, the activist who has served as an unofficial leader among endocrine-disruptor researchers. "This is a transgenerational problem that is undermining the integrity of humans."

But Paul Foster, an official who evaluates risks to human reproduction at the National Institute of Environmental Health Sciences, said it was hard to give useful advice at this point because the chemicals being investigated are so ubiquitous.

"There's very little that they can do," said Foster, whose agency is part of the National Institutes of Health. "That's why you can't be too alarmist about it, because you can't stop people living."

Copyright 2006 The Washington Post Company


From: Los Angeles Times
November 8, 2006


[Rachel's introduction: Chemical-laden goods outlawed in Europe and Japan are openly sold in the U.S.]

By Marla Cone

OAKLAND -- Destined for American kitchens, planks of birch and poplar plywood are stacked to the ceiling of a cavernous port warehouse. The wood, which arrived in California via a cargo ship, carries two labels: One proclaims "Made in China," while the other warns that it contains formaldehyde, a cancer-causing chemical.

Because formaldehyde wafts off the glues in this plywood, it is illegal to sell in many countries -- even the one where it originated, China. But in the United States this wood is legal, and it is routinely crafted into cabinets and furniture.

As the European Union and other nations have tightened their environmental standards, mostly in the last two years, manufacturers -- here and around the world -- are selling goods to American consumers that fail to meet other nations' stringent laws for toxic chemicals.

Wood, toys, electronics, pesticides and cosmetics are among U.S. products that contain substances that are banned or restricted elsewhere, particularly in Europe and Japan, because they may raise the risk of cancer, alter hormones or cause reproductive or neurological damage.

Michael Wilson, a professor at UC Berkeley's Center for Occupational and Environmental Health, said the United States is becoming a "dumping ground" for consumer goods that are unwanted and illegal in much of the world. Wilson warned earlier this year in a report commissioned by the California Legislature that "the United States has fallen behind globally in the move toward cleaner technologies."

The European Union, driven by consumers' concerns, has banned or heavily restricted hundreds of toxic substances in recent years, invoking its "precautionary principle," which is codified into law and prescribes that protective steps should be taken when there is scientific evidence of risks to public health or the environment.

Meanwhile, the Environmental Protection Agency and other federal agencies have relied on voluntary steps from industries rather than regulations, saying the threats posed by low levels of chemicals are too uncertain to eliminate products valuable to consumers or businesses.

In the absence of U.S. regulations, some international corporations, including Hewlett-Packard, Dell, Mattel, Revlon and Orly International, have declared that all their products, no matter where they are made or sold, will comply with EU standards, the most stringent chemical laws in the world.

"We don't operate to different standards in different parts of the globe, regardless of differing environmental standards," said John Frey, manager of corporate environmental strategies at Palo Alto-based Hewlett-Packard.

But many U.S. and foreign companies do.

Some toys, nail polishes and other beauty products are made with plastic softeners and solvents called phthalates that the EU has banned as reproductive toxins. Several of U.S. agriculture's most popular herbicides and insecticides, including atrazine, endosulfan and aldicarb, are illegal or restricted to emergency uses in other countries. And a few electronic items, including Palm's Treo 650 smart phone and Apple's iSight camera, were pulled off shelves in Europe this summer because of lead components but are still sold here.

Industry groups say their products have undergone rigorous reviews in the United States and are not only legal here but safe. They say some governments, particularly the EU, have overreacted and banned chemicals with little or no evidence of a human health threat.

"Consumers can remain confident about using their cosmetics given their oversight by the Food and Drug Administration, the extensive research on their safety and long history of safe use," the Cosmetic, Toiletry and Fragrance Assn. said.

The EPA hasn't eliminated any industrial compounds since it sought unsuccessfully to ban asbestos 18 years ago. Unlike EU policies, U.S. law requires the EPA to prove a toxic substance "presents an unreasonable risk of injury to health or the environment," consider the costs of restricting its use and choose "the least burdensome" approach to regulate industry.

"The dumping problem is concentrated in a few product sectors. But these sectors happen to be really ubiquitous in the everyday lives of Americans. Chemical risks are being spread all over the country in ways that are invisible to consumers," said Alastair Iles, an international chemical policy expert who was a research fellow at UC Berkeley and still works with faculty there on consumer issues.

Last year alone, China exported to the United States more than half a billion dollars' worth of hardwood plywood -- enough to build cabinets for 2 million kitchens, a sixfold increase since 2002. Though China sends low-formaldehyde timber to Japan and Europe, Americans are getting wood that emits substantially higher levels of the chemical.

One birch plank from China, bought at a Home Depot store in Portland, gave off 100 times more formaldehyde than legal in Japan and 30 times more than allowed in Europe and China, according to July tests conducted by a lab hired by an Oregon-based wood products manufacturer. Formaldehyde exposure has been shown in human studies to cause nose and throat cancer and possibly leukemia, as well as allergic reactions, asthma attacks, headaches and sore throats.

With no government standards, monitoring or labeling, U.S. consumers cannot easily identify chemical-free products.

"I'll guarantee you that no one tells a customer building a $75,000 kitchen that their cabinets contain plywood from China that will off- gas formaldehyde," said Larry Percivalle of Oakland-based EarthSource Forest Products, a distributor that sells low-formaldehyde and sustainably grown wood.

In the wood industry, even though low-cost, chemical-free substitutes are available, much of the plywood, fiberboard and particleboard sold in the United States is manufactured with adhesives, or glues, that contain formaldehyde, said Michael Wolfe, a wood products consultant in Emeryville, Calif.

The only formaldehyde standard for wood in the U.S. is one that applies just to subsidized, low-income housing. U.S. companies voluntarily meet it for all products, though it allows 10 times more formaldehyde than Japan's standards.

California may step in. The Air Resources Board is considering standards roughly equivalent to Europe's for 2008 and Japan's for 2010 through 2012.

The air board estimates that one of every 10,000 Californians is at risk of contracting cancer from breathing average formaldehyde levels found in homes and offices.

"We have a problem that needs to be addressed, we have technology to do it, and there is no requirement for it to happen. Nationally, no one is stepping forward, so we think this is an area where we can," said Mike Scheible, the air board's deputy executive officer.

Columbia Forest Products, which spent $8 million to switch all its factories to nontoxic glues made of soy flour, says it is being hurt by the lack of U.S. standards for wood.

"While I believe in free trade, I also believe that everybody ought to be held to the same standard," said Harry Demorest, the Portland-based company's president and chief executive. "It's particularly galling and frustrating in the Chinese case, when they're taking our market with products that have high formaldehyde content when we know full well that they can produce it with lower formaldehyde."

Despite its capital investment, Columbia, which is North America's largest producer of hardwood plywood and veneer, has not raised its prices to compensate because the soy glues are as inexpensive as formaldehyde glues, Demorest said.

The state air board estimates that switching to formaldehyde-free glues like those required in Japan would increase the price of a sheet of particleboard from today's $7 to about $9 in 2010.

California's proposal is opposed by nearly all wood producers, who say it could drive them out of business if they are forced to do what Columbia did.

"The entire industry is not ready to make this change. Today we could not be competitive by changing resins," said Darrell Keeling, a general manager at Roseburg Forest Products in Oregon.

Keeling said his company makes some low-formaldehyde products but most customers aren't interested because they cost more.

"Even though people talk green and think green, they won't demonstrate their commitment to it with their wallet," he said. "More regulation and more bureaucracy is not the best way to drive change."

But selling products with risky chemicals to Americans while removing them for consumers elsewhere is shortsighted, said Robert Donkers, the European Commission's Environmental Counselor in Washington, D.C.

"If companies decide to wait and see rather than innovate, they will lose the market," he said. "American consumers follow closely what is happening in other parts of the world. So they can say, 'Hey, you make them in Europe, why don't you sell them to us?'

"Legally, you can still use these chemicals, but you're not doing your company any favors."


Rachel's Democracy & Health News (formerly Rachel's Environment & Health News) highlights the connections between issues that are often considered separately or not at all.

The natural world is deteriorating and human health is declining because those who make the important decisions aren't the ones who bear the brunt. Our purpose is to connect the dots between human health, the destruction of nature, the decline of community, the rise of economic insecurity and inequalities, growing stress among workers and families, and the crippling legacies of patriarchy, intolerance, and racial injustice that allow us to be divided and therefore ruled by the few.

In a democracy, there are no more fundamental questions than, "Who gets to decide?" And, "How DO the few control the many, and what might be done about it?"

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