Whatcom 3: County Judge Grant Rules Out Defense Evidence
Whatcom 3 update: Ericksen will not be held in contempt for ignoring subpoena. Dismissal based on destruction of evidence also unlikely; ruling expected May 25.
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Guest Writer David Maas is a retired professor of political science and a steering committee member of the No Coal! Political Action Committee. For more information about the organization, go online to coal-free-bellingham.org
In collecting signatures to place the Bellingham Community Bill of Rights on the November ballot, I occasionally was asked why No Coal was involved in such a pointless effort to get local citizens involved in the coal transport issue, a dispute that can only be resolved by the county, state, and federal governments.
The critics are right. Our constitution prohibits cities and towns from interfering in decisions about fracking for natural gas reserves, or mining for shale oil, or building transcontinental pipelines, or building coal terminals and offshore drilling rigs. Therefore, Peabody Energy and SSA Marine can build a coal terminal at Cherry Point that threatens our health, our emergency services, our water quality, our parks, our air quality, and our future, and there is nothing we can do to overturn the plan. As Superior Court Judge Charles Snyder ruled last Friday, the Community Bill of Rights Initiative exceeds the authority of the city.
We now ask a fundamental question: Why is an incorporated government like the city of Bellingham powerless to stop the development of a private project that will reshape our community? There are three answers. One important consideration is the U.S. Constitution and Congress’s power over interstate commerce, like the transportation of coal from Montana and Wyoming to Western Washington. Where did this come from? Moses certainly didn’t bring this commandment to us from Mount Sinai. No, the origins were more mundane. Alexander Hamilton, James Madison, Edmund Rudolph, and nine other men met in Annapolis Maryland in September 1787 to “remedy the defects of the federal government.” At the top of their list of complaints was the interference of states in trade, commerce, and indebtedness. They passed a resolution calling for a convention of state delegates in Philadelphia the following May to “revise the Articles of Confederation.” As we know, the framers turned their backs on popular consent, tossed the Articles, and created a national constitution. Can you imagine this occurring today, say a small group getting together in Omaha, passing a motion to meet later with some other acquaintances, and composing a new founding document, one that might even be democratic? Why not? Look at the Declaration of Independence.
Another constraint on local influence is state government. The national constitution is silent about local governance; but between the states there were two interpretations in the nineteenth century: Thomas Cooley, chief justice of the Michigan Supreme Court, presumed that “local government is a matter of absolute right, and the state cannot take it away.” In contrast, John F. Dillon, the chief justice of the Iowa Supreme Court, in striking down a Clinton County injunction against the construction of a railroad through their land, claimed municipalities “owe their origin to, and derive their powers and rights wholly from, the (state) legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.” Dillon was described as one who greatly distrusted local governments and local officials, thinking their conduct was “unwise and extravagant.” More telling, though, was that Judge Dillon was a general or advisory counsel to the Union Pacific Railroad, the Missouri Pacific, the Texas Pacific, the Manhattan Elevated, and the estate of the railroad magnate, Jay Gould. Guess which interpretation prevailed?
Dillon’s thinking was right in line with the corporate attack on community and state responsibilities led by railroad barons and Stephen Field, the Chief Justice of the California Supreme Court and later an Associate Justice of the U.S. Supreme Court. Field’s close ties to Leland Stanford, Collis Huntington, Mark Hopkins, and Charles Crocker, the founders of the Central and Southern Pacific railroads, was well known. The Southern Pacific Railroad was threatening many of the counties it ran through by refusing to pay taxes. The counties of San Mateo and Santa Clara sued Southern Pacific for the revenue they were owed. The San Mateo case was thrown out and the railroad prevailed in the Santa Clara County challenge. According to one historian, Field’s decisions trampled logic and a core democratic practice…the legislature’s right to determine taxes.” The railroads prevailed and corporate personhood was born.
Today, corporate constitutional protections exceed those of “human citizens.” For example, UBS, Bank of America, Chase, and Wells Fargo recently paid $673 million for a bond-auctioning scam that robbed millions of pensioners, retirees, and other investors of untold billions; another example is the trillions of toxic assets the Bank of America transferred to the Federal Deposit Insurance Corporation, so the taxpayers can cover any losses; still another example is IBM’s cooperation with Nazi leaders in Germany during WW II. Can you imagine a gambler transferring his wagers to a government insurer? Or imagine an individual stealing billions, or helping a genocidal regime, and eluding imprisonment?
In the face of federal, state, and corporation limits, how can communities gain more influence over developments like the building of the Gateway Pacific Terminal, education, or many other important issues? The Constitution offers two choices: elections and petitions. We could elect more local-minded candidates, but unfortunately, voting and campaigning are separated from legislative struggles and policy-making. We are no longer pubic citizens; now we are called customers, clients, or in the words of Presidents Obama and Bush, folks. Our collective might and responsibilities are diluted. Few of us can afford to run for public office. Winning a seat in the U.S. House of Representatives costs at least $1.5 million; for the Senate $8-$10 million. Money is the mother’s milk of politics, but only a small percentage of people help finance campaigns, political parties, or other organizations. Many of us don’t understand the important issues of the day because of a derelict media, empty campaign messages, limited debates, irresponsible and skewed spending by Super PACs, and the failure of leaders to fully disclose who or what is spending billions on buying our elections.
Then there is the First Amendment “right to petition to redress our grievances.” Here we have the right to form or join a group and lobby representatives, senators, and administrators. Most of us, though, don’t belong to a political interest group, nor is there an organization, out of the thousands that exist, that speaks for the American public. We used to be a nation of joiners. Concerned parents were active in Parent-Teacher Associations; farmers joined the National Grange, workers belonged to unions, friends gathered with other Masons, Odd Fellows, or Elks. People could find solidarity in these groups and learn the skills of expression and organization. They could also influence the powerful, like when the American Legion opposed FDR’s meager WW II veteran’s benefits and convinced Congress to pass the GI Bill which supported the education of millions of returning soldiers.
Since the 1950s these membership associations have faded and been replaced by advocacy and public interest groups which depend on corporate funding, donations, and professional managers. They lobby Congressional and presidential offices, they litigate, and they publish occasional reports. The Sierra Club is typical. Their mission is to educate the public about environmental issues, lobby, and campaign for candidates that agree with their values. Memberships consist of writing a check, occasionally signing a petition, and voting for candidates backed by the Club’s board. Is this democracy in action? Who decides which issues are important? Who communicates with policy-makers? Who understands the political process or, even more unlikely, the budget process?
Groups care about elections because they want people in office who support them. But more of their money and muscle is spent on lobbying. Lobbyists spent $3.5 billion in 2010 and $3.3 billion in 2011. Business organizations have always dominated American politics, but the growth of corporate lobbying over the last thirty years is unsurpassed; motivated by the supposed assault on free enterprise from college campuses, pulpits, media, intellectuals and politicians in the 1960s, businesses fought back. The number of corporate public affairs offices in Washington, D.C. went from 100 in 1968 to over 600 today; there were 2,500 registered lobbyists in 1982, in 2011 there were 12,646. Business has a 16 to 1 representation advantage over organizations that might oppose them, like unions, environmentalists, and consumer advocates. Seven of the ten largest lobbying spenders between 1998 and 2012 are either private corporations or trade associations that represent them in Washington; they include the U.S. Chamber of Commerce, General Electric, the Pharmaceutical Research and Manufacturers of America (PHARMA), Northrup Grumman, and Exxon Mobil.
The politics and rhetoric that surrounds the building of the Gateway Pacific Terminal at Cherry Point illuminates and confuses our understanding of party divisions, ideological differences, representation, and traditional lobbying. Peabody Energy, the company that wants to ship coal from mines in Montana and Wyoming, is part of a coal industry group that is represented by 268 lobbyists and the National Mining Association, a trade group that is the “voice of mining companies.” The company is one of twelve energy companies that spends a million dollars or more every year on lobbying mostly key Republicans and a few Democrats on the Senate Energy and Resources Committee, the House Energy and Commerce Committee, and the Subcommittee on Energy and Water Development. This year they are trying to expand domestic production and soften regulations.
Peabody Energy is also part of the American Coalition for Clean Coal Electricity, which is an alliance of coal companies (BHP Billiton is the world’s largest, and Peabody Energy is the biggest coal company in the U.S.), railroads (Union Pacific and the Burlington Northern Santa Fe are the largest in the U.S.), and electric utilities. The coalition has spent millions on promoting clean coal and opposing environmental regulations and legislation related to climate change and mine safety. In the Coalition’s $38 million clean coal campaign they sponsored a CNN presidential debate, they canvassed all of the debates with literature and human billboards, they targeted ads in key primary states and districts, and they engaged in Astroturf lobbying through staged interviews and forged letters from phantom constituents. They have been aided in their efforts by a revolving door of former Congress members and staffers lobbying for the mining interests. For example, one of the key voices for Peabody Energy in Washington, D.C. is Richard Gephardt, the former Democratic Speaker of the House from Missouri. There is also movement between the companies and federal regulatory agencies, like between the mining industry and the Mine Safety and Health Administration that enforces safety standards. The justification for this movement is that the regulators need the expertise of industry experts, but critics claim such coziness leads to a lax enforcement regime that put’s miner’s lives at risk.
This disconnect between the public and the powerful is evident when Congress passes tax cuts that primarily benefit the wealthy, or when the president misleads us about threats from Iraq, or in the size of the loans given to floundering banks and investments houses on Wall Street. What is most revealing is the relation between income and Congressional responsiveness: the poor have virtually no voice in national decision-making. This should surprise no one; what is startling is that Congress does not listen to the middle class either. Middle class demands or ideas are only heeded when combined with the wishes of the affluent. As one researcher concluded, “Most middle-income Americans think that public officials do not care much about the preferences of ‘people like me;’ sadly, studies suggest they may be right.”
So, we ask our critics, what are our alternatives? For us there is only one choice: to come together as a community not only to oppose unwanted projects, but to improve our schools, rebuild our local economies, and enhance our living environment. Our ancestors, who freed the slaves, enabled all to vote, and advanced our civil rights, have shown us the value of political movements. No doubt charges of senseless opposition and unlawful acts were leveled against the abolitionists and suffragettes in the nineteenth century, and civil rights activists in the twentieth; fortunately they were not deterred. Nor will we abandon our belief that a community should have a voice in decisions like the proposed renovation of the BNSF train corridor, the construction of a coal terminal at Cherry Point, and the dramatic increase in commercial traffic.