Cross Posted from Cross Posted from TortDeform.Com
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 Claytonchronicles 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. Agricultural giant Monsanto allegedly bribed Indonesian government officials in order to win lenient environmental regulations, then faked their books to conceal the bribe. (New York Times) The consequence? A negligible 1 million dollar fine, a slap on the wrist 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.