After battling city officials all the way to the Utah Supreme Court over whether
they had collected enough petition signatures to force a referendum, it seems
the residents of Sandy, Utah will become the latest in a growing number of communities
to decide the fate of controversial “big box” stores at the ballot
In a state where growth control often is equated with communism, the
court came down firmly on the side of citizens seeking to prevent Sandy's
City Council from rezoning industrial land in order to allow a new Wal-Mart
and Home Depot. The court's 5-0 ruling in July said, "The exercise of the
people's referendum right is of such importance that it properly overrides individual
[corporation's] economic interests." But after winning their initial battle,
Sandy residents may find the court's Jeffersonian words hollow.
Why? The U.S. Supreme Court has ruled corporations have a “right”
to spend unlimited corporate funds to influence ballot questions. As citizens
in dozens of communities have learned, that power enables giant corporations
to turn ballot measures -- theoretically the purest form of democracy -- into
yet another sphere of corporate dominance.
In May, Wal-Mart spent almost $400,000 in Flagstaff, AZ to run its
own ballot initiative and reverse a size cap on big box stores previously passed
by the city council. The company outspent the size cap's defenders three to
one -- a whopping $44 for each vote it received -- en route to winning 51% of
Wal-Mart's ad campaigns painted the size cap as a union and governmental attack
on citizens' rights, including an
ad that equated opponents with Nazi book-burners. A backlash resulted, but
came after most of mail-in ballots were cast.
Becky Daggett of Friends of Flagstaff's Future, which supported efforts to
uphold the size cap, said the corporate funding "drove what should have
been a community debate and determined the outcome of a local decision."
The story isn't unique -- just two months earlier in Bennington,
VT, Wal-Mart had steamrolled citizens who tried to defend the town's big-box
This is hardly what the authors of our Constitution had in mind.
When American colonists declared independence from England, they also
freed themselves from control by corporations like the East India Company that
extracted colonists' wealth and dominated trade. The colonial experience bred
fear of concentrated power in the hands of corporations as well as despots,
leading states to limit corporations' size, lifespan, and range of activity.
In most states, corporations were forbidden to spend any money to influence
elections or law-making.
Corporations escaped many of those barriers during the 1800s, aided by the
distraction and growth opportunities of the Civil War. By the end of the century,
the Supreme Court's judicial activism had invented a concept that would have
shocked American revolutionaries.
Ignoring the fact that corporations' are unmentioned in our Constitution,
the Court interpreted the 14th Amendment's guarantee of “due process of
law” -- written to protect the rights of freed slaves -- to make corporations
It took almost another century, however, before another episode of
Supreme Court activism effectively created a corporate "right" to
dominate ballot initiatives and referenda (initiatives are questions placed
on the ballot via signature gathering among the general public, referenda are
questions on which the government chooses to allow a popular vote).
The man who went on to write that key ruling gave fair warning of his bias.
In 1971, he wrote a famous memo
to a friend at the U.S. Chamber of Commerce, urging the Chamber to aggressively
expand big business' power, noting, "the judiciary may be the most important
instrument for social, economic and political change."
One month later President Nixon appointed the memo's author, Lewis Powell,
to the Supreme Court, where he went on in 1978 to make his political opinion
the law of the land, writing the (5-4) majority opinion in First National Bank
of Boston v. Bellotti that created a new class of corporate political "speech"
Notably, such decisions on expansion of corporate political power don't necessarily
follow left-right political divides. Indeed, Chief Justice Rehnquist has repeatedly
attacked the invention of corporate constitutional rights. In his dissenting
opinion from Bellotti, he warned of "special dangers in the political sphere"
that result from granting political power to corporations (his full
dissent is well worth a read).
Despite Rehnquist's objections, corporate executives have since wielded vastly
expanded power over communities around the country. Often, the mere threat of
running a costly ballot initiative intimidates local governments into weakening
controls over corporate activities.
So when the citizens of Sandy go the voting booth this fall, they'll battle
against a company that spent less than sixty seconds worth of corporate revenue
to defeat a skilled and well-organized citizen effort in Flagstaff. Whether
or not we're concerned by the proliferation of big box stores, we all should
be alarmed by this perversion of democracy.
The reasons that drove our country's founders to keep business creations
subordinate to democracy are even more compelling today. Until we return corporate
activity to “strictly business” and revoke their ill-gotten political
power, the power of a Wal-Mart typically will trump even the most committed
Community-level fights will continue and I wish people of Sandy the best, but
the crucial battle -- one to determine whether citizens or corporations will
control the future of our communities and country -- must take place nationwide.