Showing posts with label free speech. Show all posts
Showing posts with label free speech. Show all posts

Thursday, September 27, 2012

Times Standard on Arcata Lawsuit


 Judge tosses most of Arcata panhandling ordinance, city can appeal; Salzman: 'We knew we were in the right'


Grant Scott-Goforth/The Times-Standard
09/27/2012

The 2010 Arcata panhandling ordinance has been largely thrown out by Superior Court Judge Dale A. Reinholtsen.

The ordinance banned panhandling in certain locations around the city, including major intersections, pedestrian bridges and the entrances and exits to businesses. Reinholtsen stated in a court ruling this week that location restrictions were “largely unconstitutional.”

The ordinance also banned “aggressive panhandling,” but the legal challenge by Arcata resident Richard Salzman and attorney Peter Martin did not address that portion of the law.

”There appears to be no dispute that Arcata has legitimate interests in prohibiting 'aggressive panhandling,' so the Court will not dwell on that,” the court ruling states.

Martin called the judge's decision “detailed and thoughtful.”

”We're very gratified by the court's ruling,” Martin said. “We're happy to see that the city of Arcata will now have to respect the free speech of all of its citizens.”

A judgment -- the final action in the lawsuit -- will be entered in favor of Salzman on behalf of the judge. The city will have 60 days to appeal.

Arcata City Manager Randy Mendosa said the city attorney and the attorney defending the city in the lawsuit will review the ruling and likely meet in closed session with the city council prior to its Oct. 3 meeting.

”All we can say is that we are currently analyzing
the court's decision,” Mendosa said.

Mayor Michael Winkler said the city attorney worked hard to draft the ordinance based on similar laws in other cities.
”I'm disappointed,” he said.

The council and staff will meet with the city attorney about what steps to take next, Winkler said. That meeting has not been scheduled.

Salzman said he was pleased with the ruling and had mixed feelings about the possibility of an appeal.

”We knew we were in the right,” he said, adding that the city overreached and forced him to use the judicial system. “It's a testimony to the government that our founders so brilliantly structured.”

”I'm of two minds about appealing,” Salzman continued. “I'd prefer that they don't waste taxpayer money on a folly like that.”

Still, Salzman said, he is confident that the ruling would stand if appealed, making the ruling case law that other jurisdictions could reference in similar cases.

Reinholtsen struck down large portions of the law, allowing only minor exceptions to the ordinance.

”The core difficulty with evaluating the Ordinance is that it pits Arcata's legitimate interests against the speech rights of individuals,” Reinholtsen wrote in the ruling.

The ruling states that Arcata has a legitimate interest in “preventing congestion and controlling traffic” and that targeted panhandling can be disruptive to traffic flow. It goes on to state that Arcata has a valid interest in protecting its citizens from unwanted communications, or “the right to be let alone.”

However, Reinholtsen ruled that the restrictions infringed on constitutional rights.

”It is only a slight exaggeration that new laws that restrict speech based on the content of that speech are impossible to uphold,” the ruling states.

”In sum, the Court finds that the legitimate interests advanced by Arcata with respect to the targeted panhandling prohibition are insufficient in most instances to justify the infringement of solicitors' right, and, for that reason, it is largely unconstitutional,” the ruling states.

”The Court rules that the location-specific prohibition on panhandling is unconstitutional, with two exceptions. The exceptions are that Arcata may continue to prohibit 'panhandling' within twenty feet of any unenclosed ATM, and Arcata may continue to prohibit 'panhandling' 'in any public transportation vehicle,'” the ruling reads.

Public transit vehicles are not considered public fora, according to the ruling.

The court ruled that people using an ATM have their money and financial security at stake, and that “soliciting people while they are using ATMs heightens the feelings of duress and intimidation that can be felt by those solicited.”
The full text of the ruling can be viewed online at www.times-standard.com.

Grant Scott-Goforth can be reached at 441-0514 or gscott-goforth@times-standard.com.

LA Times on Arcata Lawsuit


Arcata panhandling law mostly struck down by judge

A Humboldt County judge says provisions of the ordinance banning non-aggressive panhandling within 20 feet of stores, intersections, parking lots and bus stops are unconstitutional.

By Lee Romney, Los Angeles Times
September 27, 2012

 A homeless man who calls himself Big Al sits on a guardrail with his pet mastiff on California Highway 101 in Arcata last June. Big Al was prosecuted under the city's ordinance restricting panhandling. (Los Angeles Times / July 10, 2012)
















SAN FRANCISCO — A Humboldt County Superior Court judge has struck down as unconstitutional most of an ordinance that banned non-aggressive panhandling in Arcata within 20 feet of any retail store, intersection, parking lot or bus stop, among other places.

The ruling, released Wednesday, allows the North Coast town to enforce the ban under only two narrow circumstances: near unenclosed ATMs and on public transit vehicles.

The college town long has been a magnet for vagrants, who congregate on its New England-style central plaza. And officials long have struggled with how to address the often-annoying requests for money, booze or pot.

Passed by the City Council two years ago, the sweeping ordinance banned aggressive panhandling — a stance that was not challenged in court.

However, Judge Dale A. Reinholtsen sided overwhelmingly with a resident who challenged portions of the law that forbade non-aggressive panhandling — including the holding of a sign — in vast swaths of the town's commercial districts and beyond.

"Arcata may not restrict solicitation merely because it makes people uncomfortable," Reinholtsen wrote. "To put it simply, speech rights prevail in a public forum (e.g., public parks, streets, etc.) in the absence of unique circumstances."

While Reinholtsen found the ordinance "narrowly tailored" to address the problem officials sought to remedy, when weighing the city's interests against free-speech rights he concluded that the balance "disfavors Arcata in most instances."

The lawsuit was brought by Richard Salzman, who carries a copy of the Constitution in the pocket of his sport coat. He said he was pleased that the judge "agrees with me in general that the city overreached, and that this is an infringement of free speech."

Mayor Michael Winkler had voted for the broad restrictions along with two others on the five-member council after receiving legal assurances that a number of cities had approved similar bans.

"I'm disappointed," Winkler said. "I thought it was carefully crafted, and I'm sorry that the ruling was what it was."

A report last fall by the National Law Center on Homelessness & Poverty found that slightly more than half of 234 cities surveyed had bans on aggressive panhandling, the same proportion had outlawed it in specific areas, and one-fourth forbade begging citywide. Most of the ordinances have not been challenged.

Winkler declined to comment on the content of the ruling or the possibility of an appeal, saying the city attorney had advised officials not to do so.

Attorney Peter Martin, who represented Salzman and serves with him on the board of the Humboldt Civil Liberties Defense Fund, said the judge "really did wrestle with the issues, and if there is an appeal it will show he made a real effort to analyze the law and balance it on both sides."

Martin said he doubted that Arcata voters "want to see their council spend any more money appealing." But if the city were to appeal and lose, "it would create a statewide rule."

lee.romney@latimes.com

New York Times: Homeless Are Fighting Back Against Panhandling Bans

The New York Times
October 5, 2012

Homeless Are Fighting Back Against Panhandling Bans

By DAN FROSCH

COLORADO SPRINGS — Panhandlers, with their crumpled signs, coffee cups and pleas, are as customary a sight in many American towns and cities as Starbucks or McDonald’s. But for one Utah homeless man, the right to ask people for money has become a personal legal crusade.

Steve Ray Evans, who uses a sign to ask drivers for money, has been successfully suing Utah cities that have cited him for panhandling, arguing that his right to free speech is being violated by a state statute that bans soliciting near roadways.

“This is my only source of income,” said Mr. Evans, 54, whose sign reads “Starving Please Help!” “I do it for survival purposes. I feel as though a lot of other individuals depend on it, too.”

Mr. Evans said he had received more than 50 panhandling citations, and cases like his have become increasingly common of late. With the downturn in the economy, cities across the country have been cracking down on an apparent rise in aggressive panhandling, while advocates for the homeless and civil liberties groups contend that sweeping bans on begging go too far.

According to a report by the National Law Center on Homelessness and Poverty that examined 188 cities, there was a 7 percent increase in prohibitions on begging or panhandling between 2009 and 2011.

“Our sense is that cities are responding to the increasing number of chronically or visibly homeless people due to the economic crisis,” said Heather Maria Johnson, a civil rights lawyer for the group. “Rather than addressing the issue of homelessness, they are adapting measures that move homeless people out of downtowns, tourist areas or even out of a city.”

Case law on the issue has varied over the years, and local panhandling laws differ widely. But several recent legal decisions have favored the homeless.

Last January, after Mr. Evans’s initial lawsuit, Salt Lake City agreed to stop enforcing the state statute.

But Utah fought the suit, arguing that panhandling near roads was dangerous. A federal judge sided with Mr. Evans in March, ruling that the statute was unconstitutional. In June, the City of Draper agreed to stop enforcing the ordinance after Mr. Evans filed suit there as well.

After a lawsuit filed by a homeless man and a disabled veteran who were arrested on panhandling charges in Grand Rapids, Mich., a federal judge ruled in August that the state’s blanket ban on public begging also violated the First Amendment. Michigan’s attorney general, Bill Schuette, has appealed, arguing that begging is not protected speech.

In many cases, the dispute over panhandling centers on whether a city’s efforts to criminalize aggressive begging to protect pedestrians and businesses ends up overreaching.

After the Northern California city of Arcata passed an ordinance banning panhandling in 2010, a local resident, Richard Salzman, sued in State Superior Court in Humboldt County.

Mr. Salzman, 53, an agent for commercial illustrators, said he had no problem with Arcata’s efforts to curb aggressive panhandling. But he objected to the city — long known for its liberal leanings — also prohibiting panhandling that was not necessarily threatening on its face, like merely asking for money within 20 feet of the entrance to a store or restaurant.

“I don’t know how much more passive you can be than standing there silently holding a sign,” he said. “This is a slippery slope we don’t want to go down.”

Last month, Judge Dale A. Reinholtsen ruled that Arcata’s law was indeed too broad and struck down most provisions that prohibited all panhandling in specific locations.

“The court finds that the legitimate interests advanced by Arcata with respect to the targeted panhandling prohibition are insufficient in most instances to justify the infringement of solicitors’ speech rights,” Judge Reinholtsen wrote in his opinion.

In Colorado Springs, city officials are weighing a panhandling ban for a commercial section of downtown, after merchants complained that begging was interfering with business.

“What they have told us is that the persistent sort of solicitation by people who just camp out in front of stores every day downtown has really discouraged tourists, shoppers and families from coming downtown,” said City Attorney Chris Melcher.

Mr. Melcher acknowledged that there could well be a legal challenge if the ordinance is approved. But he said the city, which already bans aggressive panhandling, was committed to drafting a law that would avoid prohibiting lawful speech.

On a blustery Thursday morning in Colorado Springs, Turtle Dean, a 36-year-old homeless man, said that he did not think the proposed ban was fair.

“I only ask for money for stuff that I need to survive. Clothes and food,” said Mr. Dean, who panhandles downtown and vowed to continue begging, ban or not.

The most recent suit by Mr. Evans, who is being represented by a lawyer with the Utah Civil Rights and Liberties Foundation, was filed last month against the City of American Fork, where he was recently cited for panhandling.

While city officials consider whether to fight the suit, American Fork has agreed not to pursue the charges against him for now and to temporarily stop enforcing the statute.

Mayor James H. Hadfield said Mr. Evans had been cited because he was panhandling in a construction zone and people had complained.

“I have nothing against Mr. Evans or people who do these types of activities and use common sense,” he said. “We react to people’s complaints. We are not on a witch hunt.”

Thursday, June 14, 2012

Free Speech Now! (And Eat at McDonald’s)


MEDIA MAVEN / BY MARCY BURSTINER
NORTH COAST JOURNAL

Free Speech Now! (And Eat at McDonald’s)

(JUNE 7, 2012)  In the movie Norma Rae, Sally Field plays a textile worker who tries to organize a union at her mill. In the movie’s climax, thugs try to throw her out of the factory. She scribbles the word “union,” climbs up on a table and holds it up. For a moment everyone in the factory stares at her. Then, one by one, the workers shut off their machines. These days it seems that people who try to fight a good fight get that kind of support only in the movies.

On May 24, Fortuna resident Janelle Egger filed suit against the Humboldt County Board of Supervisors challenging the constitutionality of Urgency Ordinance 2477, which bans camping, animals and defecation outside the courthouse and also bans the hanging of signs. In my April 5 column, I questioned the constitutionality of a law in which the only new prohibition was the hanging of signs and the gathering for peaceful protest. Existing laws covered all other activities the ordinance specified.

Police arrested Egger April 7 in front of the courthouse as she participated in a candlelight vigil held to support free speech. This is a woman who sued the city of Fortuna in 2009 under the California Public Records Act because it had refused to turn over documents about a proposal for a new water tank. The courts agreed with her on that one and ordered the city to pay for her attorney fees.

This time, she filed her 24-page brief, with another 48 pages of exhibits, in U.S. District Court for the Northern District of California.  She doesn’t have a lawyer; she’s doing it herself.

This is one of two ongoing First Amendment suits involving local laws. This month, Superior Court Judge Dale Reinholtsen will rule on the constitutionality of an Arcata ordinance passed to curb aggressive panhandling. Attorney Peter Martin filed that suit on behalf of Arcata resident Richard Salzman.

The Arcata law has multiple parts. Part A specifically bans aggressive panhandling. But parts B through G ban all panhandling in specific areas, such as near ATM machines or supermarket entrances. If aggressive panhandling is the problem, why not stop with A? Why include the rest?

This is what I find most troubling: The ease with which local governments pass speech infringement laws, how little effort they spend trying to keep them as narrow as possible and how few people these laws seem to bother.

Perhaps more troubling is that certain types of speech seem to be more vulnerable to government infringement than others.

In this paper in March, Editor Carrie Peyton Dahlberg wrote about how difficult it is to ban ugly billboards that line our highway. In 2008, a federal appeals court upheld a ban on electronic billboards only if it were content-neutral — a community would have to ban all electronic billboards. In 1984, the U.S. Supreme Court approved an anti-sign law in Los Angeles, but that’s because it banned all signs on utility poles. Back in 1981, the Supreme Court rejected a San Diego law banning billboards that created exceptions for specific categories of speech, such as political campaign signs and religious signs. “With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse,” the court said in Metromedia, Inc. v. City of San Diego. Because the court has insisted on blanket bans, local governments think twice about passing these laws. Commercial signs produce money.

In 2010, in its infamous Citizens United decision, the U.S. Supreme Court ruled 5-4 that Congress can’t limit the money an organization or even a corporation spends on donations to committees not directly affiliated with a political candidate, because that would prevent these committees from buying television time or creating expensive brochures or commercials. That would abridge their freedom of speech.

Here is the pattern I see. L.A. could ban ALL signs on utility poles. But what corporations advertise on utility poles? Few communities act to ban all electronic signs or billboards, because they generate money. If you, or your kid, or a homeless guy on the street, holds up a cardboard sign, it generates no money.  The handwritten signs tacked onto the courthouse fence generate no permit fees. The Supreme Court ruled in Citizens United that the government can’t limit the money used to create documentaries or buy air time.

Twice this year I explained how paid speech has more power than “free” speech. Now I see that speech you buy is more protected than speech that is free. It is as if the First Amendment now says: Congress shall make no law abridging the payment for speech or press.

Thank goodness that in this community we have troublemakers like Eggers and Salzman who take it upon themselves to fight for the free speech rights we all share. We’ll see which way the courts swing on these issues.

But for their efforts, Egger and Salzman seem to get more grief than support in the communities where they live. Maybe we are all just too inundated with advertising these days. I find ads in paperback books I pick up at the book shop, on the back of my grocery store receipts, on the back of a T-shirt I must stare at when on line for some event. So we find offensive handwritten signs that don’t try to push products on us, that simply assert someone’s rights as a citizen or that ask for money because someone is hungry and doesn’t have a roof over his head.

Here is an idea. Homeless people should trade signs. Instead of standing on a corner and asking for money for themselves or their family, they can ask for money for a guy on the next corner. He in turn would advertise the plight of the next guy and so on. That way they aren’t panhandling. They are advertising. And that is something governments and the courts seem to protect.  And Janelle, get yourself a corporate sponsor. Maybe Pepsi Free?

Marcy Burstiner is a professor of journalism and mass communication at Humboldt State University.

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COMMENT / BY RICHARD SALZMAN /

Thank you, Marcy Burstiner, for covering my Free Speech lawsuit against the City of Arcata for its (ironically named) Aggressive Panhandling Ordinance. I don’t see how Arcata can suggest that the simple act of holding up a sign, which is the most passive form of panhandling, can qualify as aggressive; and I object to restrictions on speech based on content (as Ms. Burstiner pointed out, you can hold up a sign to advertise or sell something but not one asking for a handout).

I think it’s important for people to consider that if you believe in the protection of free speech and in defending our Bill of Rights, then you need to be willing to defend the rights of people you don’t agree with, or find annoying. Or, in the case of the ACLU defending the Nazis’ right to march in the predominantly Jewish town of Skokie, Illinois, even people you find repulsive.

As Voltaire stated, “I disapprove of what you say, but I will defend to the death your right to say it.”

Both my lawsuit and Janelle Egger’s lawsuit against Humboldt County for its ordinance restricting protests on Courthouse property are being supported in part by the Humboldt Civil Liberties Defense Fund, of which I am a member. We welcome your support and I encourage anyone wishing to contribute to help fund these cases, and our overall efforts to defend civil liberties in Humboldt County, to visit us online at HCLDF.org.

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Monday, May 28, 2012

Judge to make decision on Arcata panhandling law; ordinance remains a rift in city politics


Grant Scott-Goforth/The Times-Standard
05/28/2012

A Humboldt County Superior Court judge will rule on the constitutionality of Arcata's panhandling ordinance, which limits the locations where people are allowed to panhandle and carries penalties for aggressive panhandling.

The ordinance was the subject of a lawsuit by Richard Salzman that went to trial last week.
Salzman's Attorney Peter Martin has until June 4 to submit a supplemental brief, at which point the judge will have 90 days to issue a decision on the case.

Martin said Salzman wants the law to be struck down as unconstitutional, any convictions under the law set aside and any fines levied against violators returned.

”I think the city of Arcata went too far, and I hope the judge will see it that way,” Martin said.
Salzman said he had no objection to the parts of the ordinance that ban aggressive panhandling such as touching someone, following them or blocking their way.

”I'm very sensitive to how inappropriate behavior is offensive,” Salzman said.

He said the ordinance goes too far with restricting the language allowed on signs.

”As a layperson, my feeling about it is they're trying to restrict what the signs say,” Salzman said, adding that political protest signs and advertisements don't face similar limitations.

”Somehow a sign that says 'hey buddy can you spare a dime?' offends sensibilities?”

Salzman said the aggressive panhandling that most agree is unacceptable should not be lumped in with holding signs.

”That's the most passive form of panhandling,” Salzman said.

Arcata City Councilman Mark Wheetley, who voted for the ordinance, said it was developed based on research and surveys of municipal panhandling ordinances throughout the country.
”It didn't come without a lot of careful review and consideration,” Wheetley said.

Wheetley still supports the ordinance but could not speak specifically about the litigation the city is engaged in with Salzman.

”It wasn't done in a vacuum,” Wheetley said. “I have received lots of positive feedback since it went into place.”

Vice Mayor Shane Brinton voted against the ordinance when it was enacted in 2010.

“I've continued to maintain the position that the ordinance may be unconstitutional,” Brinton said. “At the very least, it violates the spirit of the First Amendment.”

Brinton did think there was a legal precedent for the prohibition on aggressive panhandling.

Brinton said he couldn't comment on the merits of the Salzman case or its arguments, but added he would rather have seen the ordinance never enacted to save the city from having to defend it.
”I'm not really enthusiastic about any of this,” Brinton said.

Arcata City Manager Randy Mendosa said that as of Thursday, the city had spent $4,988 defending the ordinance, though that figure would rise as the trial hours had not yet been billed.
Mendosa said the ordinance has been successful for the city, cutting down on the “bad behavior factor.”

”Anecdotally, people seem fine with it,” Mendosa said. “I haven't heard any other complaints.”
Arcata Police Department Lt. Ryan Peterson said enforcement of the law mostly comes in the form of education. Police officers' first response is to inform people where they can and can't panhandle, and Peterson said most are compliant.

”The number of citations issued for panhandling is extremely low,” Peterson said. “What this gives the community is the ability to notify the police if there is an aggressive panhandler. It's certainly not designed to eradicate panhandling.”

Peterson said enforcement of the ordinance is complaint-driven, meaning officers only respond to public calls regarding panhandling. He said the majority -- more than 90 percent -- of calls are related to aggressive panhandling.

”Those are the kind of calls that really are frustrating,” Peterson said.

Salzman said that he will appeal if the judge rules against him. He says it's the first time he's been involved in a court proceeding but that it was his only recourse when the city council rejected his request to change the language of the ordinance.

”If they overstep their bounds of authority, I'm going to go to the judicial branch to rectify that incursion on our constitutional civil liberties,” Salzman said. “I feel I'm being a patriot.”

Grant Scott-Goforth can be reached at 441-0514 or gscott-goforth@times-standard.com

http://www.times-standard.com/localnews/ci_20726853/judge-make-decision-arcata-panhandling-law-ordinance-remains

Thursday, May 24, 2012

Unusual Lawsuit: Can City Silence An Already Silent Request?

Unusual Lawsuit: Can City Silence An Already Silent Request?

Arcata, California--Is it illegal to merely hold up a sign asking for
money?

The City of Arcata thinks it is, but a citizen lawsuit contends the city
overstepped its bounds and its panhandling ordinance is unconstitutional.



Arcata taxpayer Richard Salzman, who filed a lawsuit in Humboldt County
Superior Court against the normally ultra-liberal city, said: “If
first they silence the poor and the homeless, and we say nothing, who
will speak up when they try to silence rest of us?”

He noted that the section of the ordinance against “aggressive
panhandling,” including blocking one’s path, any physical contact or even
yelling, would be left unchallenged by his legal action.

But to achieve the city’s goal of criminalizing the 'speech'--or even a
mute appeal--of a few beggars, Arcata has criminalized all charitable
solicitations for money.

Salzman said, "The ironical aspect is that Arcata so far has
spent around $10,000 of the taxpayers' money defending a law so one
would not have to to read a sign asking, 'Buddy, can you spare a
dime?' How insane is that?"

The judge overruled an objection by the city's attorney and allowed a
photo to be entered into evidence that illustrated the absurdity of the law during
the trial on May 23rd 2012.

The court has 90 days to rule on the case. The losing party will then
have the opportunity to appeal.

---

NBC affiliate KIEM News Ch3 lead story

Tuesday, November 8, 2011

Arrest Occupiers




“it will be a bitter pill for many Americans to swallow the idea of doing with less so that big business can have more.”
-William Simon, A Time for Truth


Support Occupy Wall St. here

--

How Wall Street Occupied America

by Bill Moyers
The Nation
November 2, 2011


During the prairie revolt that swept the Great Plains in 1890, populist orator Mary Elizabeth Lease exclaimed, “Wall Street owns the country…. Money rules…. Our laws are the output of a system which clothes rascals in robes and honesty in rags. The parties lie to us and the political speakers mislead us.”

She should see us now. John Boehner calls on the bankers, holds out his cup and offers them total obeisance from the House majority if only they fill it. Barack Obama criticizes bankers as “fat cats,” then invites them to dine at a pricey New York restaurant where the tasting menu runs to $195 a person.

That’s now the norm, and they get away with it. The president has raised more money from employees of banks, hedge funds and private equity managers than any Republican candidate, including Mitt Romney. Inch by inch he has conceded ground to them while espousing populist rhetoric that his very actions betray.

Let’s name this for what it is: hypocrisy made worse, the further perversion of democracy. Our politicians are little more than money launderers in the trafficking of power and policy—fewer than six degrees of separation from the spirit and tactics of Tony Soprano.

Why New York’s Zuccotti Park is filled with people is no mystery. Reporters keep scratching their heads and asking, “Why are you here?” But it’s clear they are occupying Wall Street because Wall Street has occupied the country. And that’s why in public places across the nation workaday Americans are standing up in solidarity. Did you see the sign a woman was carrying at a fraternal march in Iowa the other day? It read, I Can’t Afford to Buy a Politician So I Bought This Sign. Americans have learned the hard way that when rich organizations and wealthy individuals shower Washington with millions in campaign contributions, they get what they want.

In his Pulitzer Prize–winning book The Radicalism of the American Revolution, historian Gordon Wood says that our nation discovered its greatness “by creating a prosperous free society belonging to obscure people with their workaday concerns and pecuniary pursuits of happiness.” This democracy, he said, changed the lives of “hitherto neglected and despised masses of common laboring people.”

Those words moved me when I read them. They moved me because Henry and Ruby Moyers were “common laboring people.” My father dropped out of the fourth grade and never returned to school because his family needed him to pick cotton to help make ends meet. Mother managed to finish the eighth grade before she followed him into the fields. They were tenant farmers when the Great Depression knocked them down and almost out. The year I was born my father was making $2 a day working on the highway to Oklahoma City. He never took home more than $100 a week in his working life, and he made that only when he joined the union in the last job he held. I was one of the poorest white kids in town, but in many respects I was the equal of my friend who was the daughter of the richest man in town. I went to good public schools, had the use of a good public library, played sandlot baseball in a good public park and traveled far on good public roads with good public facilities to a good public u
niversity. Because these public goods were there for us, I never thought of myself as poor. When I began to piece the story together years later, I came to realize that people like the Moyerses had been included in the American deal. “We, the People” included us.

* * *

It’s heartbreaking to see what has become of that bargain. Nowadays it’s every man for himself. How did this happen? The rise of the money power in our time goes back forty years. We can pinpoint the date. On August 23, 1971, a corporate lawyer named Lewis Powell—a board member of the death-dealing tobacco giant Philip Morris and a future justice of the Supreme Court—released a confidential memorandum for his friends at the US Chamber of Commerce. We look back on it now as a call to arms for class war waged from the top down.

Recall the context of Powell’s memo. Big business was being forced to clean up its act. Even Republicans had signed on. In 1970 President Nixon put his signature on the National Environmental Policy Act and named a White House Council to promote environmental quality. A few months later millions of Americans turned out for Earth Day. Nixon then agreed to create the Environmental Protection Agency. Congress acted swiftly to pass tough amendments to the Clean Air Act, and the EPA announced the first air pollution standards. There were new regulations directed at lead paint and pesticides. Corporations were no longer getting away with murder.

Powell was shocked by what he called an “attack on the American free enterprise system.” Not just from a few “extremists of the left” but also from “perfectly respectable elements of society,” including the media, politicians and leading intellectuals. Fight back and fight back hard, he urged his compatriots. Build a movement. Set speakers loose across the country. Take on prominent institutions of public opinion—especially the universities, the media and the courts. Keep television programs “monitored the same way textbooks should be kept under constant surveillance.” And above all, recognize that political power must be “assiduously cultivated; and that when necessary, it must be used aggressively and with determination” and “without embarrassment.”

Powell imagined the Chamber of Commerce as a council of war. Since business executives had “little stomach for hard-nosed contest with their critics” and “little skill in effective intellectual and philosophical debate,” they should create think tanks, legal foundations and front groups of every stripe. These groups could, he said, be aligned into a united front through “careful long-range planning and implementation…consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and united organizations.”

The public wouldn’t learn of the memo until after Nixon appointed Powell to the Supreme Court that same year, 1971. By then his document had circulated widely in corporate suites. Within two years the board of the Chamber of Commerce had formed a task force of forty business executives—from US Steel, GE, GM, Phillips Petroleum, 3M, Amway, and ABC and CBS (two media companies, we should note). Their assignment was to coordinate the crusade, put Powell’s recommendations into effect and push the corporate agenda. Powell had set in motion a revolt of the rich. As historian Kim Phillips-Fein subsequently wrote, “Many who read the memo cited it afterward as inspiration for their political choices.”

They chose swiftly. The National Association of Manufacturers announced that it was moving its main offices to Washington. In 1971 only 175 firms had registered lobbyists in the capital; by 1982 nearly 2,500 did. Corporate PACs increased from fewer than 300 in 1976 to more than 1,200 by the mid-’80s. From Powell’s impetus came the Business Roundtable, the American Legislative Exchange Council (ALEC), the Heritage Foundation, the Cato Institute, the Manhattan Institute, Citizens for a Sound Economy (precursor to what we now know as Americans for Prosperity) and other organizations united in pushing back against political equality and shared prosperity. They triggered an economic transformation that would in time touch every aspect of our lives.

The Chamber of Commerce, in response to the memo, doubled its membership, tripled its budget and stepped up its lobbying efforts. It’s going stronger than ever. Most recently, it called in its agents in Congress to kill a bill to provide healthcare to 9/11 first responders for illnesses linked to their duty on that day. The bill would have paid for their medical care by ending a special tax loophole exploited by foreign corporations with business interests in America. The Chamber, along with nearly 1,300 business and trade groups, urged Congress to pass the new tax bill, signed into law just before this past Christmas and filled with all kinds of stocking stuffers, including about fifty tax breaks for businesses. The bill gave some of our biggest banks, financial companies and insurance firms another year’s exemption to shield their foreign profits from being taxed here in the United States; among the beneficiaries were giants Citigroup, Bank of America, Goldman Sachs and Mor
gan Stanley, all of which survived the financial debacle of their own making because taxpayers bailed them out in 2008.

The coalition got another powerful jolt of adrenaline in the late ’70s from the wealthy right-winger who had served as Nixon’s treasury secretary, William Simon. His book A Time for Truth argued that “funds generated by business” must “rush by multimillions” into conservative causes to uproot the institutions and the “heretical strategy” of the New Deal. He called on “men of action in the capitalist world” to mount “a veritable crusade” against progressive America. BusinessWeek(October 12, 1974) somberly explained that “it will be a bitter pill for many Americans to swallow the idea of doing with less so that big business can have more.”

Those “men of action in the capitalist world” were not content with their wealth just to buy more homes, more cars, more planes, more vacations and more gizmos than anyone else. They were determined to buy more democracy than anyone else. And they succeeded beyond their expectations. After their forty-year “veritable crusade” against our institutions, laws and regulations—against the ideas, norms and beliefs that helped to create America’s iconic middle class—the Gilded Age is back with a vengeance.

If you want to see the story pulled together in one compelling narrative, read Winner-Take-All Politics: How Washington Made the Rich Richer and Turned Its Back on the Middle Class, by political scientists Jacob Hacker and Paul Pierson. They wanted to know how America had turned into a society starkly divided into winners and losers. They found the culprit: the revolt triggered by Lewis Powell, fired up by William Simon and fueled by rich corporations and wealthy individuals. “Step by step,” they write, “and debate by debate America’s public officials have rewritten the rules of American politics and the American economy in ways that have benefited the few at the expense of the many.”

There you have it. They bought off the gatekeeper, got inside and gamed the system. As the rich and powerful got richer and more powerful, they owned and operated the government, “saddling Americans with greater debt, tearing new holes in the safety net, and imposing broad financial risks on Americans as workers, investors, and taxpayers.” Now, write Hacker and Pierson, the United States is looking more and more like “the capitalist oligarchies, like Brazil, Mexico, and Russia,” where most of the wealth is concentrated at the top while the bottom grows larger and larger with everyone in between just barely getting by.

The revolt of the plutocrats was ratified by the Supreme Court in its notorious Citizens United decision last year. Rarely have so few imposed such damage on so many. When five pro-corporate conservative justices gave “artificial legal entities” the same rights of “free speech” as humans, they told our corporate sovereigns that the sky’s the limit when it comes to their pouring money into political campaigns.

The ink was hardly dry on the Citizens United decision when the Chamber of Commerce organized a covertly funded front and rained cash into the 2010 campaigns. According to the Sunlight Foundation, corporate front groups spent
$126 million in the fall of 2010 while hiding the identities of the donors. Another corporate cover group—the American Action Network—spent more than $26 million of undisclosed corporate money in just six Senate races and twenty-six House elections. And Karl Rove’s groups, American Crossroads and Crossroads GPS, seized on Citizens United to raise and spend at least $38 million, which NBC News said came from “a small circle of extremely wealthy Wall Street hedge fund and private equity moguls”—all determined to water down financial reforms that might prevent another collapse of the financial system. Jim Hightower has said it well: today’s proponents of corporate plutocracy “have simply elevated money itself above votes, establishing cold, hard cash
as the real coin of political power.”

No wonder so many Americans have felt that sense of political impotence that historian Lawrence Goodwyn described as “the mass resignation” of people who believe in the “dogma of democracy” on a superficial public level but whose hearts no longer burn with the conviction that they are part of the deal. Against such odds, discouragement comes easily. But if the generations before us had given up, slaves would still be waiting on their masters, women would still be turned away from the voting booths on election day and workers would still be committing a crime if they organized.

* * *

So take heart from the past, and don’t ever count the people out. During the last quarter of the nineteenth century, the Industrial Revolution created extraordinary wealth at the top and excruciating misery at the bottom. Embattled citizens rose up. Into their hearts, wrote the progressive Kansas journalist William Allen White, “had come a sense that their civilization needed recasting, that their government had fallen into the hands of self-seekers, that a new relation should be established between the haves and have-nots.” Not content to wring their hands and cry “Woe is us,” everyday citizens researched the issues, organized to educate their neighbors, held rallies, made speeches, petitioned and canvassed, marched and marched again. They plowed the fields and planted the seeds—sometimes on bloody ground—that twentieth-century leaders used to restore “the general welfare” as a pillar of American democracy. They laid down the now-endangered markers of a civilized society: le
gally ordained minimum wages, child labor laws, workers’ safety and compensation laws, pure foods and safe drugs, Social Security, Medicare and rules that promote competitive markets over monopolies and cartels.

The lesson is clear: Democracy doesn’t begin at the top; it begins at the bottom, when flesh-and-blood human beings fight to rekindle what Arlo Guthrie calls “The Patriot’s Dream.”

Living now here but for fortune
Placed by fate’s mysterious schemes
Who’d believe that we’re the ones asked
To try to rekindle the patriot’s dreams

Arise sweet destiny, time runs short
All of your patience has heard their retort
Hear us now for alone we can’t seem
To try to rekindle the patriot’s dreams

Can you hear the words being whispered
All along the American stream
Tyrants freed, the just are imprisoned
Try to rekindle the patriot’s dreams

Ah but perhaps too much is being asked of too few
You and your children with nothing to do
Hear us now for alone we can’t seem
To try to rekindle the patriot’s dreams

Who, in these cynical times, with democracy on the ropes and America’s body politic pounded again and again by the blows of organized money—who would dream such a radical thing? Look around.


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