OurFuture.org Blogs: Kia Franklin

Memo to the Netroots: Post FISA Progressive Blogging & Civil Justice

Kia Franklin — Mon, 21 Jul 2008 17:56:06 -0400

Even as we recover from the heavy blow of losing the legislative fight against FISA protections for spying telecoms, last weekend and other occasions have me reflecting about the battle for what Obama (ironically) calls our "progressive future," how it is far from finished, and how blogging can be a powerful weapon of choice for those on the frontlines. But we have got to remain serious about our work. Our momentum can't ebb and flow as we lick our wounds and wait for another FISA.

This isn't a rant. I've got a few ideas about how we can keep our tanks fueled (ugh--please excuse the sickening reference to that other topic we love to discuss).

As a follow up to the NN panel I organized--on the right's agenda for tort "reform" and why our civil court system should be a top priority to progressive bloggers, especially in the aftermath of the grueling FISA fight--here's my companion memo about continuing this conversation beyond the convention.

An emergency kept me from getting to Austin, but I hear the panel went really well. (I will put up a link to video and related blogposts from panelists when they become available). Since I was unable to attend, I wanted to contribute to the continued dialogue the panel intended to generate by making the following simple argument: progressives must write more frequently and organize more readily around civil justice issues.

Why and how should we do this? Glad you asked.

1. Why?

Because it's important! In his video-address to the Austin NN Convention, Barack Obama commended the progressive blogosphere for its ability to work effectively around the important issues. Observing the promise of using online platforms to build the progressive movement, he said:

“This is one of those moments in our history when we have a chance to create a real grassroots movement and lay the groundwork for a lasting progressive future.”

In order to lay the groundwork effectively, progressives have to be able to articulate what we believe in and what our blueprint will be for change to achieve those ideals.

The FISA fight is a good case in point for how successfully we can do this. Mass organizing around FISA showed us that progressive Americans feel passionately that they deserve legal protection and adequate recourse when their rights are violated. We believe it is important to be able to curb corporate abuse and governmental neglect and to achieve redress when someone else does us unreasonable, illegal harm. The FISA issue is just one part of a larger set of issues related to access to the courts and our civil justice system. As an important part of a progressive vision for society, we have to continue paying attention to issues that affect our access to the courts.

2. How?
I've written a memo on how progressive bloggers can continue taking on pressing civil justice issues and inspire grassroots organizing around them. The Memo to the Netroots on Civil Justice discusses how to get progressive bloggers more involved in this conversation and in offline strategizing to achieve access to justice for ordinary Americans.

In short, the memo provides links to more than a few really excellent progressive blogs that discuss the fight for civil justice (disclaimer: the list is just a start); presents some simple steps we can all take get progressives to pay more attention to what is happening in the courts; reflects upon our uphill challenge against the corporate industry's effort to weaken our legal rights; and surveys ideas for enriching the dialogue with more factual information about tort "reform" when the mainstream media will not.

The memo also makes the case that this work must be done right now, while we are in the middle of a critical election year and while our economy (unfortunately) provides us with countless examples of why it's important to curb corporate power and protect the legal rights of ordinary, hardworking citizens.

I'd be grateful for any comments on the memo, questions about why I wrote it, or additional suggestions for bloggers interested in getting involved in this type of advocacy. And if folks want to get even more involved in the debate, they can join the daily discussion of civil justice issues on TortDeform.com and the other civil justice blogs referenced in the memo.

Lessons Sen McCain has learned from Pres Bush

Kia Franklin — Thu, 08 May 2008 16:11:48 -0400

Sen. John McCain has officially earned an A in Prof. Bush's course on Tort Reform Tropes, 101. Maybe that's why they're embracing in this photo (source).

The Senator and presumed Republican party Presidential nominee spoke in Rochester, Mich., the other day. (Thanks, Matt at ThinkProgress, for pointing out and analyzing McCain’s statements and his track record on women's rights).

According to the Washington Post:

Although the Michigan audience was largely supportive, cheering McCain's pledge to provide easy health care access for veterans, the meeting started out with a few tough questions. McCain singled out a 14-year-old girl who questioned why he opposes eliminating the statute of limitations on lawsuits over workplace discrimination, arguing it amounted to opposing "equal rights for women."

"If you eliminate the statutes of limitations, and you make it unending, you may be violating the rights of the individuals who are being sued, whether they're a man or a woman," the senator responded. " I don't think you're doing anything to help the rights of women, except maybe help trial lawyers and others in that profession." (My emphasis added)

Haven't we heard this before? It's déja-vu all over again. McCain is using the same tactics Bush used to get elected: when in doubt, blame the trial lawyers.

When faced with a tough question about why people are being denied access to justice, say it's because that's the only way to stop the trial lawyers. Oh, and this will work no matter how inherently flawed, inane, or even insane your argument is at its substance. And for good measure you can sprinkle in some references to "evil in this world" to appeal to peoples' morals, thus creating the inference that all of your political stances are directed at combating that evil.

McCain's appeal to the breached rights of individual employers is strained from the start. First, the law does not create an unending statute of limitations--it clarifies that the statute starts running afresh with every new discriminatory act, such as the issuance of an inequitable paycheck based upon discrimination. Second, the defendant in employment discrimination claims is often a corporation and not an individual.

But even in cases in which the defendant is an individual, what is the right which McCain asserts is being violated? Is it the right not to be sued for discriminating against someone without getting caught within 180 days, even if you then discriminate over and over again after the 180 days are up? Even if it can be more cleverly articulated than this, does McCain really think one can compare the obstruction of some unsavory interest in evading responsibility to the infringement of a highly cherished right not to be victimized by discrimination and economic injustice? That's ridiculous.

So, McCain's not smarter than a twelve year old... but neither was Bush, and he got elected. The rhetoric works.

The "trial lawyers are evil" mantra addresses none of the values McCain touted in his speech to the Michigan audience. He told supporters that "evil still exists in the world" and "assails the great, animating truths we believe to be self-evident -- that all people have a right to life, liberty and the pursuit of happiness -- by subjecting countless human beings to abuse, persecution and even slavery." He observed that the "failure to [confront this evil] affects even those who are complacent with our own blessings and secure in our human rights," and pointed to this country's founding "belief in the inherent dignity of all human life [which] can only be preserved through shared respect and shared responsibility."

Of course that sounds great, but a true belief in those words would require McCain to recognize that discrimination is a form of persecution, and that the court system is a way for individuals to demand the "respect we are morally obliged to pay each other." As someone unlikely to face workplace discrimination, he would nonetheless feel called to confront the evil of discrimination and economic inequity. And his call for "shared respect and shared responsibility" would compel him to acknowledge the assault to human dignitiy that is an unvindicated act of discrimination.

But it appears as though McCain has learned from Bush that matching your professed values with the political decisions you make would be no good at all. After all, It might help the trial lawyers.

Instead of Jail, Corps Go to Their Checkbooks to “Pay” for Crimes

Kia Franklin — Tue, 15 Apr 2008 13:01:23 -0400

An AgriBiz consultant walks into a government official’s home office, hands him an envelope full of hundreds, exchanges short pleasantries, shakes hands, and walks back out. Leaving the government official’s doorstep, the Agribiz guy whisks his hands across the front of his crisp Armani suit jacket, as if to clean the dust off of himself. As the warm outside air hits him, he puts on his designer shades and hails a cab. This shady transaction has secured for AgriBiz the ability to focus on accumulating big profits without having to worry about those pesky little environmental regulations that protect regular people from things like Agent Orange, DDT, and rGBHs. Ah, the free market.

This kind of sounds like something out of a movie or a John Grisham book, doesn’t it? But in the movies, the bad guy loses. For instance the movie Michael Clayton chronicles an Agri-business’ eventual demise as it spirals deeper and deeper into corruption and murder.

Or does the bad guy lose? At the end of the movie, one assumes that the corporate offenders are arrested, the scandal brought to light, and the class action litigants given justice. But actually, where the movie ends, the story about the corporation’s fate has only just begun.

Unfortunately, the AgriBiz scenario above is real life, not the big screen. In the New York Times there is a story about agricultural giant Monsanto, which allegedly bribed Indonesian government officials in order to win lenient environmental regulations, then faked their books to conceal the bribe. The consequence? A cute little $1 million fine, a negligible expense for the billion dollar corporation. From the Times:

[I]n the age of Enron, these kinds of charges would probably have resulted in a criminal indictment… In a major shift of policy, the Justice Department, once known for taking down giant corporations, including the accounting firm Arthur Andersen, has put off prosecuting more than 50 companies suspected of wrongdoing over the last three years.

Instead, many companies, from boutique outfits to immense corporations like American Express, have avoided the cost and stigma of defending themselves against criminal charges with a so-called deferred prosecution agreement, which allows the government to collect fines and appoint an outside monitor to impose internal reforms without going through a trial. In many cases, the name of the monitor and the details of the agreement are kept secret.

Deferred prosecutions have become a favorite tool of the Bush administration. But some legal experts now wonder if the policy shift has led companies, in particular financial institutions now under investigation for their roles in the subprime mortgage debacle, to test the limits of corporate anti-fraud laws.

Are corporations testing their limits? Hmm… ya think?

Being able to anticipate the costs of getting caught and assess the risks thereof allows corporations to, often literally, make a killing with little consequence on their bottom line.

The deferred prosecution agreement is just one manifestation of a quiet yet hugely successful corporate campaign to both deregulate industries and to protect corporations from liability for criminal, reckless, or negligent acts that harm you and me. In the wake of the subprime mortgage crisis, the impact this successful corporate campaign will have on regular people’s daily lives can’t be any clearer or more frightening.

It may be difficult to convince people how bad it is that credit card and cell phone companies rip customers off and then make it impossible for customers to fight back in court. Although it could set a person back several hundred, even thousands of dollars, for some these injustices seem too small to generate widespread public outrage and to catalyze public resistance against unbridled corporate power. But this most egregious example of corporate privilege should make even the most fervent free enterpriser blush with embarassment.

The same “personal responsibility” arguments that corporate apologists spout out (erroneously) against homeowners facing foreclosure from predatory loans, seem to fade out when we’re talking about a corporation that has bribed a government, injured innocent people, and pocketed beaucoup bucks in the process. So while corporations want corporate personhood so that they can have free speech and other constitutional rights, they flip the script when time comes to do the time for a crime.

Art imitates life. But unlike in the movies, we can’t rely on a George Clooney hero to work tirelessly and risk his life on our behalf. This is why it is the public’s imperative to identify, talk about, and oppose the business lobby’s strong yet often silent campaign for profits at the expense of our health, safety, and right to justice. This means calling the government out in its role in furthering the campaign, and defending our own rights as citizens to use our civil justice system to hold corporations accountable.

FISA: Big Brother and Some Big Picture Questions

Kia Franklin — Mon, 17 Mar 2008 12:01:56 -0400

On Friday the House of Representatives took a bold step towards, well, representing the people, in voting to pass their version of the FISA amendment, which unlike the Senate bill does not provide amnesty for telecommunications companies. (NYT) These companies may have (“or may not have,” but I would comfortably wager must have because otherwise why all the fuss?) worked with the government to spy on American citizens without a warrant, and our Reps had been debating whether to absolve these corporations for breaking the law at the government's behest.

This latest development in the FISA fight is both heartening and an opportune moment for reflection on how progressives should think about this now old trick of conflating our security with our civil liberties in order to get us complacent about abuses of government power at the sacrifice of our basic rights.

Certainly since 9/11, it has been a trademark trick of the Bush administration to claim that in the interests of security and patriotism, Americans must give up certain important rights, like our 4th Amendment right against warrantless searches and seizures, and like our right to access the court system. Had the House bill included a retroactive immunity provision absolving telecoms of any fault for breaking the thirty year old law governing intelligence gathering, the extent to which this current Administration and complicit corporations have trampled upon our constitutional rights may have gone the way of the ill-fated tootsie pop conundrum.

I digress.

So as it stands, there’s still a chance that American citizens will be able to use one of the few remaining mechanisms for checking and curbing what this FISA fight symbolizes in the utmost, abuse of governmental and corporate power. That mechanism is the civil justice system. These individuals will be able to challenge the presumption that in the pursuit of security we must sacrifice important rights, and we must do so with no questions asked and no limits or guidelines around the extent to which we must make that sacrifice.

The White House administration said that if the House’s no-retroactive immunity provision survived, “the measure would be ‘dead on arrival’ when it moved to the Senate and… would be vetoed by the President if it ever got to his desk.” (NYT) So, this is by no means the last occasion to talk about FISA, nor is it cause just yet to sit back and relax without fear of being illegally spied upon.

As this plays out, how can Americans challenge the “security vs. rights/privacy” dichotomy that amnesty-supporters falsely present as a choice one has to make? I think one step is for us to rethink the assumptions behind the arguments for telecom amnesty, the first being that these lawsuits will unfairly burden poor little corporations that were just trying to be patriotic and help the government fight terror. Some suggested questions to ask each other and our representatives:

1) Where’s the evidence that our security would have been threatened by following the law as it stood, which had special, flexible procedures for obtaining information in time-sensitive moments and emergency situations?

2) What does it do to our concepts of Democracy and constitutional rights to know that our President can change the rules of the game at whim, without consequence?

3) How can individuals fully and wholeheartedly participate in a Democracy when they have a flimsy basis for believing that their rights are valued and protected by our government?

4) What would be the impact of taking away access to the courts in this key moment, in which governmental power and corporate privilege are running square against the rights of individuals? What does this do to people’s sense that there’s a system in place for the administration of justice for regular people and not just corporations?

5) To what extent would granting retroactive immunity foster a sense among many Americans that living in an Orwellian state is a normal and necessary fact of post 9/11 life? Is this healthy for a Democratic society? Is this the type of government we want for ourselves?

This FISA debate is not just about people’s right not to be illegally spied upon, or to sue when someone violates their rights. It’s also about the American public’s faith in our government as a protector of both our safety/security and our rights. And it’s also about restoring the public’s faith in our civil legal system as one way we can ensure that our rights are valued.