Are Free Market Ideologues and Big Business Heading for a Divorce?

Conservatives are feeling smug. The recently completed Supreme Court oral arguments on the healthcare law were replete with skepticism about the powers of the federal government and glorification of personal liberty, though what was being celebrated was the dubious right of a person to be uninsured against the risk of a catastrophic medical event.

We’ve come to assume that modern conservatism is a stalking horse for an expansion of corporate power. Yet were the interests of big business really being served by the evisceration of the Patient Protection and Affordable Care Act?

First, in their desire to invalidate the individual mandate to purchase coverage, lawyers opposing the law and conservative justices went out of their way to distinguish it from what they had to admit were the valid powers of Congress to impose taxes and regulate commerce. Nary a negative word was said about the provisions of the act that impose dramatic new restrictions on the health insurance industry relating to pricing and the denial of coverage to those with pre-existing conditions. Although the justices seemed more inclined to throw out the entire law than to simply carve out the individual mandate, they suggested they would have no problem if Congress subsequently passed new legislation that reinstated the regulations without the hated mandate.

What the justices downplayed is that the Affordable Care Act was a grand bargain with the health insurance industry in which it acceded to the new regulations in exchange for being guaranteed a vast new pool of customers whose premium payments would be heavily subsidized by the federal government. The Right has gotten so carried away with its denunciations of the Act as a government takeover that it has forgotten it is really an enormous boon to private insurers.

One member of the court who chose not to ignore this was Justice Ginsburg, who during the second day of the hearings said she found it “very odd” that the opponents of the law were conceding that the government had every right to take over entire portions of the healthcare insurance market, as with Medicare, but rejected an arrangement designed to “preserve private insurers.”

The point also came up in an exchange the same day between Justice Kennedy and Solicitor General Donald Verrilli in which Kennedy seemed to acknowledge that Congress would have the right to create a single payer system, and Verrilli responded that it was “a little ironic” that the Act was being criticized because Congress had instead decided to “to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare or Medicaid-type model.”

Of course, there is no guarantee that if the Affordable Care Act is struck down in its entirety, Congress will reinstate the most significant regulations on the insurance industry, much less that it will embrace single payer. But one has to wonder what the industry thinks about the position in which it will be put.

Once they made their deal with the Obama Administration, the big insurers largely stayed on the sidelines as the Right assailed the Act, purportedly in the name of free enterprise. Now those companies seemed to be confused about the law.

In its most recent 10-K filing, giant UnitedHealth Group acknowledges that the new law “may create new or expanding opportunities for business growth” but also warns that it “could materially and adversely affect the manner in which we conduct business and our results of operations, financial position and cash flows.” Its rival Wellpoint expresses the same ambivalence in its 10-K, saying: “As a result of the complexity of the law…we cannot currently estimate the ultimate impact…on our business, cash flows, financial condition and results of operations.”

Yet they seem even more worried about the possibility that the law may be overturned. UnitedHealth writes: “Any partial or complete repeal…could materially and adversely impact our ability to capitalize on the opportunities presented by the Health Reform Legislation or may cause us to incur additional costs of compliance.”

Apart from the insurance companies, there are other major corporate players that have been intending to “capitalize on the opportunities” created by the Affordable Care Act’s infusion of lots more federal money into the medical sector. For example, for-profit hospital operator HCA writes in its 10-K that the Act “may result in a material increase in the number of patients using our facilities who have either private or public program coverage,” though it also worried about intended reductions in payments to Medicare providers. On the issue of partial or complete repeal, it also admits that the impact would be “unclear.”

Healthcare is not the only arena in which corporate interests may be having second thoughts about their direct (as with the Kochs) or indirect encouragement of junkyard dog-style conservatism. Tea party types in Congress recently decided to challenge the continued existence of the Export-Import Bank, an institution that has long been relied on by major companies such as Boeing and General Electric to sell their big-ticket items to foreign customers.

That move features prominently a New York Times front-page story reporting that some business interests are wondering if they made a mistake in heavily supporting the far-right Republicans who seem to call the shots on Capitol Hill these days. The article quotes a spokesman for the Club for Growth, which promotes “economic freedom” as admitting that “free market is not always the same as pro-business.”

Hopefully, those are not the country’s only choices. If we’re lucky, the clash between these two tendencies will open up more space for changes that promote economic and social justice while putting restraints on both the market and the corporations.


Bipartisanship in Washington is back from the dead, at least for the moment, but its reappearance illustrates what happens when the two major parties find common ground: Corporate skullduggery gets a boost under the guise of helping workers.

That’s the story of the bill with the deliberately misleading acronym — the JOBS Act — which emerged from the cauldrons of the financial deregulation crowd and has now been embraced not only by Republicans but also by the Obama Administration and many Congressional Democrats. An effort by Senate Democrats to mitigate the riskiest features of the bill has failed, and now the legislation seems headed for final passage.

More formally known as the Jumpstart Our Business Startups Act, the bill is based on the dubious premise that newer companies are having difficulty raising capital and that weakening Securities and Exchange Commission rules—including those contained in the Sarbanes-Oxley law enacted in the wake of the Enron and other accounting scandals of the early 2000s—would allow more start-ups to go public, expand their business and create jobs. The outbreaks of financial fraud in recent years have apparently done nothing to shake the belief that less regulated markets can work miracles.

For many, that notion may be more of a fig leaf than an article of faith. One clear sign that the JOBS Act is trying to pull a fast one is that the “emerging growth companies” targeted for regulatory relief are defined in the bill as those with up to $1 billion in annual revenue. This is just the latest example of an effort purportedly designed to help small business that really serves much larger corporate entities. (What proponents on the JOBS Act don’t mention is that the SEC already has exemptions from some of its rules for companies that can somewhat more legitimately be called small—those with less than $75 million in sales.)

Critics ranging from the AARP to state securities regulators have focused on provisions of the JOBS bill that would allow start-up companies to solicit investors on the web, warning that this will pave the way for more scams.

I want to zero in on another issue, which is central to the mission of the Dirt Diggers Digest: disclosure. In the name of streamlining the rules for the so-called emerging growth companies, the JOBS Act would erode some of the key transparency provisions of the securities laws.

This is fitting, given that the original sponsor of the bill, Rep. Stephen Fincher of Tennessee (photo), has been embroiled in scandals involving gaps in his personal financial disclosure and last year was named  one of the “most corrupt” members of Congress by the watchdog group CREW.

The first problem with the JOBS bill is that it would allow firms planning initial stock offerings to issue informal marketing documents and distribute potentially biased analyst reports well before they have to issue formal prospectuses with thorough and candid descriptions of their financial and operating condition. In other words, the bill would postpone real disclosure until after the company has used a bogus form of disclosure to generate a quite possibly misleading image of itself.

When the company does have to file with the SEC, it would have to provide only two years of audited financial statements rather than three and would be exempt from reporting requirements such as the disclosure of data on the ratio of CEO compensation to worker compensation mandated by the Dodd-Frank Act. It would also be exempt from having to give shareholders an opportunity to vote on executive pay practices.

What’s worse, the JOBS bill also seems to opening the door to a broader erosion of disclosure provisions for all publicly traded companies. The bill would order the SEC to conduct a review of the Commission’s Regulation S-K to determine how it might be streamlined for “emerging growth” companies.

Yet it also calls for the SEC to “comprehensively analyze the current registration requirements” of the regulation, which could mean a weakening of the rules for all companies, no matter what their size. Regulation S-K is the broad set of rules determining what public companies have to include in their public filings on issues ranging from financial results to executive compensation and legal proceedings.

It is bad enough that the JOBS bill exploits the country’s desperate need for relief from unemployment to push changes that might mainly benefit stock scam artists. The idea that it could also allow unscrupulous corporations to conceal their misdeeds is truly infuriating. We just finished celebrating Sunshine Week; now Congress is hard at work promoting darkness.

Subsidies and Sunshine

This being Sunshine Week, there’s a lot of discussion going on about open government. One of the things government should be open about is the dubious practice of giving subsidies to companies in the name of economic development.

Each year, state and local governments in the United States award tens of billions of dollars in tax breaks, cash grants and other financial assistance to business, with the lion’s share going to large corporations ranging from Google and Facebook to Wal-Mart and Boeing. Much of the money goes to companies that don’t need it and often provide little return to taxpayers in terms of creating quality jobs.

The good news is that it is easier than ever to discover which companies are getting the giveaways. A decade ago, only a handful of states disclosed the names of subsidy recipients. That number is now up to 43 states and the District of Columbia. Data from those 44 jurisdictions—along with previously unpublished data from five other states—can be found on Subsidy Tracker, the database created by my colleagues and me at Good Jobs First. The only states with no data currently available are Mississippi and Nevada, but we’re seeking unpublished info from them as well.

A glance at the inventory of data sources that have been fed into Subsidy Tracker makes it clear that there is a great deal of variation in the depth of available information from state to state. We have entries for two dozen programs in Washington and Wisconsin, yet only one each for Alabama, California, Idaho, Massachusetts and Tennessee.

There are also significant differences in the types of subsidies for which recipient information is available. A major dividing line is between those states that have disclosure relating to corporate tax credits (or other business tax breaks) and those that keep that information secret even while revealing data on other categories such as grants. According to our latest tally, 31 states plus DC provide online disclosure of corporate tax break recipients. The ones with the most extensive tax subsidy reporting include Missouri, North Carolina and Rhode Island.

Among the states that are aggressive promoters of corporate tax breaks but which decline to reveal which companies are benefiting from that largesse are Alabama, Georgia, Kansas, Mississippi, New Mexico and Tennessee. A few states—including Maryland and South Carolina—disclose the names of companies but not the value of the credits they are receiving.

Subsidy disclosure is an issue addressed in Following the Money 2012, a new report by USPIRG, the third in its series of report-card studies on state spending transparency. USPIRG provides a thorough assessment of the Google-government portals that have proliferated in recent years. The report does a good job when it comes to general state spending, but we at Good Jobs First have a friendly disagreement about its treatment of subsidies. (I am graciously cited in the acknowledgements for having reviewed drafts of the report, but the disagreements I expressed to USPIRG are not mentioned).

Despite the fact that company-specific reporting on subsidies is missing from the core content of nearly all state transparency portals, USPIRG gives many of those portals high grades for subsidy transparency. Quite a few of the sites have links to other webpages with the subsidy data, and we have no objection if USPIRG wants to awards points for that practice.

The problem is that USPIRG’s scoring category on subsidies also covers grants, some of which are economic development subsidies but many of which are not. The distinction is not made clear, and in numerous cases it appears that the data treated by USPIRG as subsidy disclosure is actually information relating to other kinds of grants to non-governmental entities. For example, the Massachusetts transparency portal (which is given 8 of 10 points in the subsidy category) lists grants to non-profit organizations for providing social services, but it does not cover the state’s job creation programs. The latter include tax credits that will soon be disclosed, thanks to the efforts of groups such as PIRG’s Massachusetts affiliate.

It is understandable that USPIRG, in its effort to promote the march of government openness, would want to take a flexible position about what constitutes transparency. But the fact of the matter is that most online subsidy disclosure is still fragmented, occurring through far-flung webpages and obscure PDF reports. That’s precisely why we at Good Jobs First created Subsidy Tracker, which brings all those disparate sources (plus unpublished data) together in one national search engine.

Centralized state transparency portals are certainly a welcome development, and we salute USPIRG for promoting them, but they are not yet an effective means of educating the public on big giveaways of tax dollars.

Another Supreme Court Boost for Corporate Unaccountability?

Global corporations often think they are above the law, but for more than a decade some of the most egregious human rights and environmental violators have had to answer for their overseas actions in U.S. courtrooms. It now appears that the conservatives on the Supreme Court want to put an end to this key tool of corporate accountability.

The controversy surrounds a once-obscure 1789 law known as the Alien Tort Statute or the Alien Tort Claims Act (ATCA). It allows foreign citizens to bring civil actions in U.S. courts involving violations of international law or a treaty signed by the United States. The long dormant law was revived in the 1980s by the Center for Constitutional Rights (CCR) as a vehicle for pursuing individual human rights violators and later came to be used against corporations as well.

One of the latter cases, involving Royal Dutch Petroleum, the parent of Shell Oil, made its way to the Supreme Court, where during recent oral arguments justices such as Alito and Kennedy expressed disdain for ATCA. Disposing of any remnant of American exceptionalism when it comes to human rights enforcement, Justice Alito insisted that allegations of Royal Dutch complicity in torture in Nigeria have “no connection” to the United States. “What business does a case like that have in the courts of the United States,” he complained.

Following the oral arguments, the Supreme Court seemed to signal that it wants to address (and quite possibly strike down) ATCA cases against individuals as well as corporations. It asked for additional briefs to be filed by June and will hear new arguments during the court’s next term. This move puts off the day of reckoning for ATCA for some months, but if the tenor of the recent oral arguments reflected the thinking of the justices, ATCA will not be with us for much longer.

To get a sense of what we may be losing, it is worth taking a look at how ATCA has been used to address corporate transgressions. Apart from the Royal Dutch matter still before the Supreme Court, here are some of the main cases that have been brought:

Doe v. Unocal. This pioneering corporate ATCA case was filed in 1996 by a group of Burmese citizens against U.S.-based Unocal (later taken over by Chevron), which was accused of complicity in abuses such as forced relocation, forced labor, murder, rape and torture by the Burmese military during the construction of a gas pipeline project sponsored by the company and the military. The case, brought with the help of CCR and EarthRights International (ERI), was settled out of court in 2005.

Wiwa v. Royal Dutch Petroleum/Shell Oil. In 1996 CCR and ERI helped bring an earlier case against Royal Dutch and Shell involving human rights abuses in Nigeria, especially the execution of Ogoni activist Ken Saro-Wiwa in 1995. On the eve of a trial in 2009, the companies agreed to a $15.5 million settlement.

Bowoto v. Chevron. In 1999 a group of Nigerians of the Niger Delta region, where Chevron is engaged in oil production, brought suit against the company, which they accused of complicity in torture, summary execution and other human rights abuses carried out by the Nigerian police and military against people protesting environmental violations on the part of the company. In 2008 a federal jury ruled in favor of the company, but the plaintiffs, who have been aided by CCR and ERI, filed an appeal which is pending.

Sarei v. Rio Tinto. In 2000 a group of residents of the island of Bougainville in Papua New Guinea (PNG) brought an ATCA suit against this mining giant, alleging that it was complicit in crimes against humanity committed by the PNG army during a secessionist conflict. The plaintiffs also accused the company of environmental crimes. The case has gone through a series of twists and turns over the past decade and is still pending after the U.S. Court of Appeals reversed a lower court’s dismissal of the case last October.

John Doe v. Exxon Mobil.  In 2001 a group of villagers from the Indonesian province of Aceh, working with the International Labor Rights Fund (ILRF), brought an ATCA case accusing the oil giant of complicity in human rights abuses committed by Indonesian security forces. For more than a decade the case has made its way through various courts and remains unresolved.

SINALTRAINAL et al. v Coca-Cola et al. In 2001, several individuals and the Colombian trade union SINALTRAINAL, with the help of ILRF and U.S. unions, brought suit against Coca-Cola and two of its Latin American bottlers in connection with the torture and murder of trade unionists by paramilitary groups. A federal judge removed Coca-Cola from the case, which was later dismissed in its entirety (though a related campaign continues).

It’s clear from this brief review that ATCA cases have faced high hurdles and protracted legal maneuvering on the part of the defendants, and only rarely have they achieved success in the form of a settlement. In 2004 the Supreme Court, amid intense pressure from the corporate world and the Bush Administration, declined to ban ATCA cases, though it insisted that only a narrow category of cases could be brought under the statute.

A majority of the current Court seems less interested in such compromises and more inclined to sweep away ATCA in a Citizens United-type affirmation of corporate unaccountability that will be celebrated by repressive governments and their foreign investors around the world.

Note: A list of pending ATCA cases can be found on the website of International Rights Advocates. An excellent resource on ATCA cases and other issues involving the conduct of global corporations can be found on the website of the Business and Human Rights Resource Centre.

Taxing the Tax-Exempt

Tax Day is approaching, and we will soon hear a rising chorus of criticism of large corporations such as Verizon and General Electric that don’t pay their fair share.

That’s as it should be, but there is another group of big entities that also dodge taxes but receive a lot less scrutiny: major non-profit institutions such as universities and hospitals.

Strictly speaking, giant non-profits are not dodging taxes, since they are largely tax-exempt. But that’s precisely the problem. These rich and powerful institutions increasingly behave like for-profit corporations yet are given privileged status under the tax laws. At a time when governments at all levels are desperate for revenue, that privilege is no longer a given.

The latest battleground over non-profit tax exemption is Providence, Rhode Island, where Mayor Angel Taveras has been trying to get local institutions such as Brown University to do more to help the struggling city. The Ivy League college has been making voluntary payments to the city, but Mayor Taveras wants Brown, which has an endowment of about $2.5 billion, to play a greater role in averting the possibility that Providence could end up in bankruptcy. Brown’s facilities in Providence are reported to be worth more than $1 billion, which would mean $38 million in revenue for the city if they were taxed at the commercial rate. Brown is paying about one-tenth of that amount. The mayor’s effort has won support from students at Brown, who have recently held rallies calling on the university to pay its fair share (photo).

It probably comes as a surprise to many that Brown is paying anything at all to the city. Providence’s arrangement with Brown is part of a limited but growing trend among cash-strapped local governments to persuade big non-profits to make voluntary payments in lieu of property taxes, or PILOTs. These are cousins of the PILOT agreements that for-profit companies often negotiate with localities when they are receiving large property tax breaks but want to be sure (often for public relations purposes) they are contributing something to vital local services such as schools and fire departments.

A 2010 report by the Lincoln Institute of Land Policy found that localities in at least 18 states have negotiated PILOT deals with non-profits. This often occurs quietly, but Providence is not the only city that has gotten into a high-profile tug-of-war with large tax-exempt institutions. Perhaps the most contentious case is Boston, home to numerous universities and hospitals with deep pockets.

Boston, where more than 50 percent of the land is tax-exempt, has made limited use of voluntary PILOTs for several decades. Although the city’s program was said to be the largest in the country, it was generating modest amounts of revenue.  In FY2008 the total was about $30 million, but half of that came from the Massachusetts Port Authority, which runs Logan Airport and the Port of Boston; the rest came from about two dozen healthcare and educational institutions.

In 2009 Boston Mayor Thomas Menino decided to shake things up by forming a PILOT Task Force. The group issued a report in December 2010 recommending that the city seek to enlist all non-profits owning property worth at least $15 million into the PILOT system with payments equal to 25 percent of what their tax bills would be if they had no exemption. The city eagerly agreed, and last year it began sending letters to several dozen major non-profits asking them to pay up.

Boston inspired other Massachusetts cities such as Worcester, home of Clark University, to join the PILOT bandwagon. (Cambridge did not need inspiration; it has been collecting voluntary payments from Harvard, whose assets now exceed $40 billion, since 1929).

The Boston approach has also generated a lot of criticism from those who argue that sending out letters pressuring non-profits for specific sums is not exactly voluntary and may be tantamount to putting those institutions back on the tax rolls, albeit at a discounted rate.

As much as non-profits may grumble about PILOTs, these payments are quite benign compared to the fate that has befallen some hospitals: the complete loss of their tax-exempt status. For years, healthcare activists have charged that many non-profit hospitals were not functioning as true charitable institutions and should thus not enjoy the privilege of tax exemption.

In 2004 officials in Illinois sent shock waves across the hospital industry by revoking the tax-exempt status of Provena Covenant Medical Center in Urbana. Six years later the state supreme court upheld that determination. In the intervening period, some other Illinois hospitals lost their exempt status and the question of whether non-profit hospitals were doing enough to deserve tax exemption became an issue at the federal level, thanks to relentless efforts by Iowa Sen. Chuck Grassley.

The issue flared up again recently in the wake of a front-page New York Times article reporting that major New York non-profit hospitals have been providing little in the way of charity care, even though on top of their tax exemption they are allowed to tack a 9 percent surcharge on their bills to pay for such care.

Whether as the result of PILOTs or loss of exempt status, increasing numbers of large non-profits will probably find themselves paying more of the cost of government. This is good news for revenue-starved public officials, but how long will it be before these non-profits decide to follow the lead of their counterparts in the for-profit world and begin seeking subsidies to offset those obligations?