U.S. Chamber Watch
Chamber’s Cup Runneth Over in the Courts
Posted by LLevenstein on July 01, 2011

This week, as the 2010-2011 Supreme Court season wrapped up, one thing was clear: the U.S. Chamber’s stranglehold on the judicial system is as strong as ever. HBO viewers may have come to the same conclusion this week, as the documentary “Hot Coffee”—so named for the infamous legal case of Stella Lieback, a McDonald’s customer who suffered vicious third-degree burns by the restaurant’s 190 degree coffee—aired, with the U.S. Chamber in a star role. Not only has the Chamber spent millions electing and then lobbying a “business-friendly” Congress; it hopes to tip the scales of Lady Justice from within American courtrooms, and as Lee Epstein, a University of Southern California law professor stated, it has “gotten really good at this game.”

Media analysis of the Supreme Court’s 2010-2011 session overwhelmingly focused on how well corporations fared as a result of the highest court’s decisions, making it much more difficult for consumers and employees alike to sue large corporations for wrongdoing.  If press coverage alone is any indication of power, the National Chamber Litigation Center’s Executive President Robin Conrad was quoted or mentioned in Roll Call, USA Today, and the Washington Post summaries of this SCOTUS session and was named Monday by the National Law Journal as “among Washington’s most influential in-house attorneys” in the top 20.  The Chamber is probably thinking “thanks for the free publicity,” but this is no promotion – this is a wake-up call.  As reported by Roll Call, the U.S. Chamber, funded by anonymous corporations:  

“…has been expanding its campaign to influence the Supreme Court…. The [National Chamber Litigation] center has grown steadily during the past 34 years and reported $3.2 million in revenue in 2009. It hired two lawyers in the past year, adding to the three already on staff and expanding the organization to the largest it has been since its inception…. It filed more briefs in the last judicial term than in any prior year, weighing in on 21 cases.”

The Constitutional Accountability Center (CAC) has been a premiere watchdog of the Chamber’s involvement in Supreme Court cases this year, releasing two reports, including this week’s “Big Wins for Big Business: Themes and Statistics in the Supreme Court’s 2010-2011 Business Cases” and in December 2010, “Open for Business: Tracking the Chamber of Commerce’s Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court.” Both reports share important facts and analysis about the Chamber’s growing reign over the Supreme Court but Doug Kendall, lead author of CAC’s most recent report summed it up nicely, “There’s no group that is focused as comprehensively on the jurisprudence before the Supreme Court and that is as active.”

While the National Chamber Litigation Center exists to grease the Supreme Court’s wheels, the Chamber has an entirely separate entity to turn state courts into corporate friendly bastions called the Chamber’s Institute for Legal Reform (ILR).  During election cycles, the ILR has been known to run smear campaign ads against judges it deems “anti-business” or “anti-tort reform” across the country.  

The Hot Coffee documentary highlights one such case, when the Chamber’s attacks on Oliver Diaz in 2000 nearly cost him the election and forever tarnished his reputation when he ran for Mississippi Supreme Court.  Eventually, the Chamber’s post-election smear campaign guaranteed that Diaz would not win reelection.

Diaz’s story in Mississippi is far from an anomaly.  In 2008, a U.S. Chamber Committee of 100 Member, the West Virginia Chamber of Commerce, spent half-a-million dollars to re-elect Spike Maynard to the West Virginia Supreme Court while then U.S. Chamber-board member company Massey Energy had an appeals case before that court.  During his re-election, photos surfaced of disgraced former Massey CEO, Don Blankenship, vacationing with Maynard. According to ABC News, “Maynard voted in favor of Massey following the trip, but the case was reheard after Maynard recused himself when the photos surfaced.”  Maynard eventually lost re-election. With news this week about Massey’s deceptive safety records, we don’t have to expound upon the questionable ethics of Massey Energy or Don Blankenship: this story seethes of corruption.  And with Blankenship on its board, it is doubtful that the Chamber didn’t know the game. 

Examples of the Chamber’s dirty dealings don’t stop there.  In 2007, a state affiliate of the U.S. Chamber, the Wisconsin Manufacturers and Commerce (WMC), helped elect a judge in Wisconsin who became the deciding vote in favor of the Menasha Corporation, entitling it to $265 million in sales tax refunds from the state.  Menasha received financial help from WMC to bring the appeal and there you have it, the vicious cycle pay-to-play politics that the Chamber wields in the courts. 

It is difficult to trace the stealthy flow of money in judicial races, and stories of the Chamber’s attack ads are often so localized that the threat of the Chamber on the judicial system – a last bastion of impartiality – is rarely elevated to a national level of concern.  But the time for concern is ripe.  As candidates prepare for the bullpen of 2012 Presidential politics, the Chamber will start plotting its under-the-radar strategy to target state judicial races around the country.  A fundamental shift in the legal system toward favoring corporate outcomes will last longer than the next Presidential term or two.