The Chamber of Litigation – part 2
Examining the U.S. Chamber of Commerce’s involvement in
some of the most notorious civil cases of the last decade.
The Chamber of Litigation – part 1
Despite condemning civil lawsuits, the U.S. Chamber of Commerce is
itself a prodigious litigator.
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Drop Your Suits, Drop Your Prices: 70+ Health Groups oppose U.S. Chamber of Commerce lawsuits aiming to prevent life-saving drug price negotiations
By Dani Klein
On Wednesday, August 16, Public Citizen and several partner organizations held a press event at the U.S. Chamber of Commerce to deliver a letter and petition demanding that the Chamber of Commerce and Big Pharma drop their lawsuits against Medicare drug price negotiation provisions in the Inflation Reduction Act and negotiate lower prices.
As mandated by the Inflation Reduction Act (IRA), starting in 2023, Medicare will begin to negotiate directly with drug manufacturers to bring down the prices of certain covered high-price prescription drugs. Specifically, the Centers for Medicare & Medicaid Services (CMS) will select single source Medicare drugs covered under Medicare Part B or Part D to be included in the negotiations.1 CMS will announce the first 10 drugs selected for negotiation by September 1, 2023, and the first round of negotiations will occur during 2023 and 2024, with the negotiated prices taking effect in 2026.
The U.S. Chamber of Commerce and three regional and local chambers responded to this negotiation plan by filing suit to declare the price negotiation program unconstitutional, and similar suits have also been filed by several pharmaceutical companies as well as the industry’s lobbying group, PhRMA. The Chamber also filed a motion for preliminary injunction, requesting that the court immediately halt the drug price negotiation program before negotiations are set to start in October. The suit and the motion were filed on the grounds that the IRA’s drug price negotiation program violates the separation of powers, violates the Due Process Clause of the Fifth Amendment, violates the First Amendment by compelling speech, and several other Constitution-based objections to the IRA drug price negotiations.
In an amicus curiae brief filed a few days before the press event, Public Citizen argued that the Chamber’s request for an injunction should be denied because of the irreparable public harm that delaying the IRA’s negotiation timeline would cause.
The legal challenges from the Chamber of Commerce and Big Pharma have the potential to significantly delay negotiation of life-saving drug prices to more affordable levels, while patients have already waited nearly 20 years for Medicare to be granted this commonsense authority. Nearly three in ten American adults who take prescription medication have skipped doses, rationed their drugs, or not filled prescriptions due to rising costs. College student Jacqueline Garibay, Washington D.C. resident Laura Marston, and Medicare patient Arthur Blair all spoke at the recent press event about their experiences losing their savings, their jobs, their possessions, and their time to the constant struggle to afford the drugs they need to survive. If pharmaceutical companies continue to price gouge and refuse to meet the government at the negotiating table, they will be directly responsible for endangering the lives of millions of Americans.
Earlier this summer, the U.S. Chamber of Commerce mounted a significant six-figure advertising campaign against the Consumer Financial Protection Bureau (CFPB) and its new director, Rohit Chopra, accusing him of attempting to “radically reshape ” financial regulation without proper jurisdiction. The Chamber specifically targets the agency’s recent March move to use its authority to better combat unfair, deceptive, or abusive acts or practices in the financial space, rightfully increasing the agency’s anti-discrimination efforts. By updating the manual examiners use to guide their supervision to include more rigorous review of policies or practices that exclude individuals from products or services, the new CFPB put in place much needed reforms to the oversight process. Put clearly, the CFPB stated in its press release announcing the change “when a person is denied access to a bank account because of their religion or race, this is unambiguously unfair.”
So, with that said, we at Chamber Watch have a question for the Chamber: why is it “radical” to utilize existing federal law to regulate financial institutions for the benefit of American consumers?
After all, the law gives our nation’s agencies broad powers to rein in corporate abuses, and it’s about time agencies like the CFPB utilize the full extent of their oversight powers to protect Americans from harm. As precisely they should, advocates and officials at the CFPB did not take this recent attack lightly, coming out in full force stating that “we remain focused on ensuring fair, transparent, and competitive markets for American consumers and honest businesses who play by the rules.” That’s what we like to hear from our country’s consumer watchdogs!
Of course, it’s not totally surprising that the U.S. Chamber of Commerce would balk at Chopra’s so far much more vigorous actions to regulate the financial market, given that so many of the U.S. Chamber’s members have been caught red handed engaging in misconduct on countless occasions. In fact, according to a recent Public Citizen report, Chamber members have paid more than 154 billion dollars in penalties since the year 2000.
As it works to stymie more robust financial protections for our nation’s consumers, polling shows that the U.S. Chamber is also going directly against the popular wishes of the American public across the political spectrum.
Public Citizen and Chamber Watch believe that unfair practices have no place in our financial markets and fully support actions of the CFPB and its new Director Rohit Chopra to better rein in corporate abuses. The U.S. Chamber is one of the last organizations we should be listening to when it comes to the parameters of effective corporate oversight. At a time when Americans are greatly concerned about rising prices, the Chamber’s member companies need to realize that by continuing to donate to the trade association, they are on the wrong side of history when it comes to protecting consumer’s’ pocketbooks.
Written and Submitted by Carly Fabian
Corporations have been making bogeymen out of disclosure requirements for 88 years. The sky hasn’t fallen yet.
In 1934, Joe Kennedy, the first chair of the Securities and Exchange Commission (SEC), defended the new agency in a speech to the Boston Chamber of Commerce. Speaking to the group that had fought tooth and nail against the creation of the SEC, Kennedy reminded the Chamber that industry had a habit of exaggerating the harm of regulation and disclosure requirements: banks had once claimed the Federal Reserve would “destroy”
banking, and railroad tycoons had once claimed that the Interstate Commerce Act would turn railroads into “streaks of rust.”
American corporations and their trade groups need a similar reminder today.
The SEC’s recent proposed rule on climate-related disclosures is an obvious move given the significance of climate-related developments to individual firms and whole markets. Yet, critics have wasted no time in describing the rule as an unconstitutional part of the agenda to “destroy the extractive industries.”
If these criticisms sound both hyperbolic and familiar, it’s because we’ve heard them before. While trade groups like the Chamber of Commerce justify their criticisms by claiming the SEC is deviating from its mission, hyperbolic criticisms of financial disclosure requirements are older than the SEC itself.
When national disclosure requirements were first proposed in 1933 and 1934 after the 1929 stock exchange crash, the proposed requirements were met with opposition from what was described at the time as one of the largest lobby groups in history.
In response to the proposed regulations, the president of the New York Stock Exchange, Richard Whitney, rapidly organized a coalition of corporations to oppose what became the Securities Exchange Act of 1934. Despite the stock market crash wiping out billions of dollars and triggering the Great Depression, Whitney’s coalition didn’t hesitate to deflect the blame, claiming that it was proposed disclosure requirements, not reckless Wall Street gambling, that would “destroy” the American economy.(1)
The main players and their criticisms feel familiar today: the Chamber of Commerce claimed the SEC would require a company to “sign away its constitutional rights.” Mining companies claimed it would kill jobs.(2) Oil and petrochemical companies claimed it would produce expensive and useless information for investors.(3)
And the opposition didn’t hold back on hyperbole: banks warned that “nowhere else in the world, nor at any time, has there ever been an attempt made to impose so great a hazard on the conduct of business.”(4) Republicans claimed that the move was designed to “Russianize” industry. “Lenin and Trotsky,” they claimed, “never envisioned such far-reaching possibilities for strangulation.”(5)
Thankfully, these criticisms, some of which could be copied word for word from a modern U.S. Chamber of Commerce press release, were not enough to dissuade FDR and other New Deal advocates for financial regulation. The SEC is now considered essential to the function of capital markets, and even its harshest early critics describe it as the “global gold standard” for financial regulation.
As Public Citizen highlighted in a previous report, this process has repeated itself time and time again. After the collapse of Enron and Worldcom in the early 2000s, the President of the Chamber of Commerce at the time, Tom Donahue claimed that disclosure requirements proposed in the Sarbanes-Oxley Act would “hand American corporations back to the trial lawyers for summary execution.” A few years later, when Donohue was asked about the Sarbanes-Oxley Act he said “Fair enough. A lot of it was well worth doing.”(6)
As criticisms of climate disclosure requirements continue to emerge, grand claims about the SEC’s overreach should be put in the context of 88 years of extreme claims from corporate opponents of sound market rules.
While some companies may be nervous about the prospect of providing climate disclosures, they are increasingly becoming the norm. More than 2,000 companies reviewed by the SEC already disclose some climate-related information, including around 90% of companies in the S&P 500. Moreover, more than 600 of the world’s largest publicly traded companies have made commitments to reach net-zero greenhouse gas (GHG) emissions by 2050, suggesting that these companies are committing to, at the very least, internally measure their GHG emissions.
Both the proliferation of voluntary climate disclosures and the lessons learned from past disclosure fights suggest that the climate disclosure requirements that are decried as “destructive” today will come to be seen by most of the industry as obvious and necessary tomorrow.
The most strident critics of the SEC climate rule—fossil fuel companies—are exceptions to this rule.
Republicans have warned that if fossil fuel companies are forced to disclose their emissions and climate-related risks, the disclosures will steer capital away from the fossil fuel industry.
If past disclosure fights are any indication, those who doth protest too much may have something to hide: Richard Whitney, the leading opponent of the Securities Exchange Act, turned out to be a financial fraudster and was later convicted of embezzlement. The fossil fuel industry, which has lied for decades to stave off regulatory responses to its lethal business, might be equally right to fear the disinfectant powers of sunlight.
If fossil fuel companies are worried, they should make sure that their supposed climate commitments are reflected internally—and remember the warning of the first SEC Chair: “The Commission will destroy nothing in our business life that is worth preserving.”
While in 2022 there’s never a lack of news to follow and absorb, we at Public Citizen are always keeping a watchful eye on the actions of the U.S. Chamber of Commerce. After all, this mainstay corporate advocacy organization has long since made itself an enemy to most progressive ideals, causes, and issues. But what’s the latest target of their toxic advocacy?
Recently, President Biden’s appointed General Counsel of the NLRB, Jennifer Abruzzo, submitted a legal brief requesting that the National Labor Relations Board (NLRB) restore prior precedent and reimplement the Joy Silk Doctrine when making their decisions on labor union bargaining enforcement, triggering the ire of the consistently employer biased U.S. Chamber of Commerce. Given the improvement to workers’ lives and morale increased unionization could bring, it’s no surprise that the U.S. Chamber came out so strongly against it, declaring that “we will oppose this action with every tool a tour disposal, including litigation if needed”.
But let’s slow down. Joy Silk what?
🧵In 1949, in a case called Joy Silk Mills, the NLRB announced it would order an employer to recognize and bargain with a union, where the union presented evidence of majority support and the employer refused recognition without a good faith doubt as to the union’s majority.
— NLRB General Counsel (@NLRBGC) April 13, 2022
Put simply, the Joy Silk Doctrine mandates that the NLRB order employers to negotiate and recognize unions if they do not possess a good faith doubt that they possess a majority. If no good faith doubt is present, employers would be subject to punishment for unfair labor practices as a matter of law. The burden of proof would now be on the employer to prove to the Labor Board their rationale for the union’s lack of majority status. By returning to this prior precedent, unions would be able to be recognized based on signed cards expressing majority worker support, bypassing the oft times destructive union election process.
Our introduction to the Joy Silk Doctrine takes us all the way back to the charmed year of 1949 with the National Labor Relations Board case. All of this should sound glaringly familiar, as companies around the country regularly use “requests for elections” simply to create colossal corporate campaigns to whittle down union support. In fact, a 2019 study by the Economic Policy Institute revealed that employers are charged with violating federal labor laws in over 40% of all union election campaigns. Not exactly a fair fight.
For a timely example, look no further than the consistent anti-union activities of Amazon. Being one of the largest employers in the country, a successful unionization at Amazon would be a galvanizing effort for workers’ rights everywhere. And last year, in Bessemer, Alabama, their anti-union methods came out in full force, conducting improper surveillance, mounting a multi- million-dollar anti-union campaign, and even going as far as changing traffic signals to make it harder for labor organizers to interact with the Amazon workers. So even though the recent union victory last month in New York despite these harmful tactics is nothing to sneeze at, wouldn’t it be better if there was a way to bypass this whole process in the first place?
We at Public Citizen think so. Public Citizen continue to monitor the Chamber’s actions, and push for both the re adoption of the Joy Silk Doctrine. The power balance between workers and employers has been woefully unequal for far too long.
While millions of Americans across the country demand and fight for a more just democracy that allows all voices to be heard, the U.S. Chamber of Commerce continues to stand in the way of progress. In a recent Chamber letter, the trade association listed its reasons for opposing the For the People Act (S.1.)—the most comprehensive democracy reform legislation in a generation. However, its reasons suggest fear of the accountability that comes with truly representative government and do not stand up to scrutiny.
Below we compare the Chamber’s key explanations for its opposition to S.1 to the realities of the bill.
The Chamber: “Significant portions of S.1 are clearly intended to have precisely the opposite effect [of bringing more people into the political process]- pushing certain voices, representing large segments of the electorate and U.S economy, out of the political process altogether”
Reality: The For the People Act (S.1) would bring countless people back into the political process. The “certain voices” that the Chamber works to protect are not everyday Americans, but the most powerful corporations in the country.
The Chamber: “S. 1 would also usher in a host of onerous disclaimer requirements for those engaging in communications that mention a candidate or elected official, even if those communications are related to legislative issues.”
Reality: The Chamber has long opposed requiring disclosure of the funders who support political advertising and has taken advantage of lax disclosure requirements to keep its donors secret while, in recent years, acting as one of the biggest corporate spenders of money in elections. However, we know that sunshine is the best disinfectant. In his majority opinion in Citizens United, Justice Kennedy assumed that the corruption risk of allowing corporate spending on political campaigns would be tempered by robust disclosure, so that voters could assess corporate political activity. “We reject Citizens United’s challenge to the disclaimer and disclosure provisions,” Kennedy said from the bench. “Those mechanisms provide information to the electorate. The resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.” Unfortunately, effective disclosure mechanisms do not currently exist – at least not until S. 1 is signed into law. Under S. 1, disclosure would prevent wealthy corporations from anonymously flooding our elections with cash.
The Chamber: “S. 1 would deem communication by corporations, including associations, to be ‘coordinated’ and thereby prohibited if the organization has even the most innocuous and tenuous of connections with a candidate.”
Reality: The purpose of anti-coordination laws in campaign finance is to root out corruption. Candidates and party committees are subject to contribution limits specifically so that Big Money contributors cannot buy them. When candidates coordinate with super PACs, which have no contribution limits, wealthy special interests can throw as much money at the feet of the candidates as necessary to buy their favor –circumventing candidate and party contribution limits and thereby defeating the point of contribution limits. Political candidates should not be coordinating with big moneyed interests behind the scenes to create a false appearance of significant organic support for its campaign. Enacting stricter laws in this area would allow the public to untangle the web of corporate influence in Washington, thus decreasing corporations’ political power.
The Chamber: “S. 1 would fundamentally transform the Federal Election Commission (FEC) from a non-partisan agency comprised of three commissioners from each party into an overtly partisan enforcement tool controlled by a majority of commissioners from the political party then in power.”
Reality: On the contrary, S.1 would create ample safeguards and protections that would not damage the FEC’s utility, but rather enhance its ability to enforce campaign law for the benefit of all Americans. S.1 would end stalemates on the FEC by decreasing the number of FEC commissioners from six to five and requiring one member to be independent. This change would allow the FEC to open up investigations and hold candidates and political actors accountable. Ensuring that the FEC has the full resources and structure necessary to utilize its enforcement powers is paramount to reducing corruption and protecting our democracy.
The Chamber: “S. 1 would give taxpayer funds to political campaigns by allowing Americans to opt-into having their political donations matched by the federal government. Taxpayer money should be used to support projects like infrastructure initiatives and education programs – not political campaigns”
Reality: The For the People Act’s small donor campaign finance system would explicitly prohibit the use of tax dollars to finance the program. Instead, financing for the public matching funds would be paid for by a new, small surcharge imposed on fines, penalties and settlements paid to the government by corporations or corporate officials who are convicted of a criminal offense, or who pay a civil or administrative penalty. Furthermore, small-donor financing of elections would help ensure that all candidates have a fair chance to succeed in the political landscape without the overwhelming financial aid of the corporate sector. When so many of our nation’s leaders are funded by and beholden to the interests of corporate behemoths, it’s no coincidence that our country struggles to hold corporations accountable and build an economy that works for all Americans.
The Chamber: “[W]e call on President Biden and Republican and Democrat congressional leaders to create a bipartisan national commission with equal representation composed of former elected officials and leading citizens to examine the facts and make recommendations for improving our election system similar to the 2004 Carter-Baker Commission on Federal Election Reform.”
Reality: The assault on voting rights is underway right now. In many instances, proposed restrictions would disproportionately affect BIPOC communities, younger and older voters, poor areas, and voters with disabilities. We don’t have time for a Commission to study the problem. Even just over the last few weeks, the Texas legislature has attempted to push through egregious restrictions on voting. New state laws banning 24-hour voting, prohibiting election officials from proactively sending vote-by-mail ballots, implementing burdensome ID requirements, and limiting early voting are part of a coordinated attack on the ease and accessibility of people exercising their democratic rights.
Now is the time for action.
By opposing the For the People Act, the U.S. Chamber of Commerce is throwing its weight behind those actors who are actively working to undermine your right to vote. But the interest in protecting corporations should not be allowed to undermine the interest in protecting democracy for all Americans.
President Biden should support members of Congress calling to delay recess until the For the People Act is the law of the land and not let the filibuster, the Chamber, or anything else stand in the way of protecting our democracy.
In May, over Mother Day’s weekend, organizations from across the country came together to push for multiple voter protection and democracy reform initiatives as a part of the National John Lewis Voting Rights Advancement Action Day. There were “votorcades” and marches all across the country, and it was inspiring to see such a concentrated and united effort toward protecting the health of our democracy now and into the future. But as heartening as it is to see organizations coming together in such a big way for progress on democracy-related issues, we must not lose sight of the harmful corporatist-focused organizations that wish only to stand in the way of real change. For a case in point, look no further than the U.S. Chamber of Commerce.
Recently, the U.S. Chamber came out very strongly against both the ”For the People Act,” the comprehensive democracy reform legislation that would overhaul a large swath of the nation’s voting, money-in-politics, and ethics laws, and the ”John Lewis Voting Rights Advancement Act,” which would restore and strengthen critical portions of elections-related law that have been weakened over time. While the Chamber throwing its hefty lobbying power and influence against crucially important reforms to bolster our democracy is not surprising, the reasons the Chamber cited for its opposition are since they aren’t even cloaked in the appearance of rationality. This serves as evidence of its true intention to work against the overwhelming wishes of the American people in order to maintain the status quo that benefits corporations and wealthy CEOs that wield outsized influence in policymaking.
And the Chamber’s arguments? It bald facedly contended that this legislations’ multiple innovations, which are designed to expand access to voting and decrease corporate power over government, are somehow harmful to the American people. Using its “Key Vote Letter” action threat, the Chamber is even going so far as to consider votes related to these two bills in its “How They Voted” scorecard. Yes, you read that right: the Chamber is apparently the sort of organization that will penalize members of Congress for voting for lasting democracy reform.
But since it isn’t coming clean, let’s dig into the Chamber’s true concerns, shall we? The For the People Act includes the DISCLOSE Act, which would implement a transformational shift in our campaign finance system that would force super PACs and “dark money” organizations like the Chamber of Commerce to make its donors fully public. The shroud of secrecy that companies and donors buy through their donations to the U.S. Chamber would be eliminated, and its noxious impact on our politics ($81 million spent in lobbying in 2020 alone) would likely be significantly blunted. Given the Chamber plays the role of advocating for toxic issues on behalf of its corporate members, like against workers’ rights, suppressing the dangers of climate change, and blocking investments in expanded healthcare to benefit all Americans, it shouldn’t be too shocking that it doesn’t want to lose its raison d’être: doing the dirty work for secret donors.
Since the Chamber is turning its well-funded lobbying energy against democracy reform, it’s critically important for everyday Americans to weigh-in with their Senators in support of the For the People Act and the John Lewis Voting Rights Advancement Act. This is especially true as we have unfortunately seen anti-voter legislation moving through state legislatures across the country. So, it is now more important than ever that we push Congress to pass and implement these much-needed safeguards on our democracy. We can no longer let a person’s free and fair access to voting, the ultimate basis our democratic process, be left to chance.
However, the Chamber shouldn’t be left on the hook alone for its backward stance on democracy reform as its member company donors actively serve as the organization’s own chief enablers. And while corporate behemoths across the country attempted to curry good favor and PR by running an ad in the New York Times and Washington Post claiming that they stand with the American people in pushing for democracy reforms, several of these very same “pro-democracy” companies are members of the U.S. Chamber of Commerce. Some of them, like Microsoft and Ford Motor Company, even have executives on the Chamber’s Board of Directors. That’s a grade of an F for consistency, folks. Simply put, a company can’t “stand for democracy” and stand with the U.S. Chamber at the same time.
Until these companies drop their donations to the Chamber and abandon their membership, they are only standing against We the People.