New Frontier In Corporate Incentives Are Toxic For Democracy And Justice

A Wisconsin law gives Foxconn preferential access to the state’s business-friendly Supreme Court.

September 19, 2017

Cross-posted from HuffPost 

States often compete to attract corporations with tax breaks and other perks – but should they be able to sweeten the pot with a bespoke justice system as well? A new Wisconsin law offers Foxconn Technology Group, an electronics manufacturing giant based in Taiwan, $3 billion in credits and tax breaks along with a tailor-made legal process – distinct from the process every other business and citizen in the state enjoys. It’s part of a worrying trend to give favored corporate or political interests a leg up in legal battles, spearheaded by a state where the courts have long been a magnet for big-money and political battles.

Signed Monday, the new law creates a special track for certain lawsuits involving any business located in the newly-created “electronics and information technology manufacturing zone,” a “zone” that at this point appears to exist for Foxconn’s benefit alone. The new law speeds up the timeline for appeals in such cases and puts an automatic hold on trial court decisions while an appeal is taking place. It also creates a special process for the state’s Supreme Court to pluck a case from the lower courts and decide it for itself, bypassing the standard appeals process.

Why might Foxconn want a fast track to the Wisconsin Supreme Court? Recent history offers more than a few clues. Over the past decade, special interests have poured millions into the state’s high court elections, securing a conservative majority that has rejected challenges to many of Gov. Scott Walker’s signature initiatives, including a 2011 union-busting law that limited collective bargaining for public employees. In 2015, the same court abruptly ended an investigation into whether Walker illegally coordinated campaign spending with business-friendly groups – many of which had also provided major campaign support to the justices. Despite the seeming conflict, the impacted justices refused to step aside from hearing the case.

The new procedural changes give Foxconn easy access to the Wisconsin Supreme Court – and a different rulebook than any other employer in Wisconsin. Imagine, for example, if a worker filed a complaint with Wisconsin’s Department of Workforce Development, asserting they were denied sick leave for which they were legally entitled. If the agency found that Foxconn violated the state’s Family and Medical Leave Act, and Foxconn asked a court to overturn that decision, the company would have the benefit of faster appeals, automatic stays of unfavorable decisions, and the chance for a friendly supreme court to short circuit the judicial process.

That’s right, a state already unfavorable to labor is greasing the wheels for a corporation accused of working its employees for unlawfully long hours, allowing working conditions so unsafe they caused a deadly explosion in 2011, and participating in a bribery scheme – exactly the kind of dealings that might land them in court in Wisconsin.

What’s worse, Wisconsin is just one (egregious) example of how states around the country are tinkering with courts’ structure and processes for political advantage or to support favored interests – treating courts, which are supposed to provide equal justice for everyone, as just another political player.

This fall, for example, North Carolina’s legislature is expected to take up a bill that would gerrymander judicial districts in the state, after previously passing laws reintroducing partisan elections and shrinking the size of the intermediate appellate court to rob the governor of the ability to make new appointments.

In total, the Brennan Center has documented at least 49 bills in 24 states this year that would give political actors more control over the courts or entrench partisan interests by, for example, changing how judges reach the bench, stripping courts of their jurisdiction over certain issues, or empowering legislators to override state or federal court decisions. Unlike the Foxconn incentives in Wisconsin, most of these pieces of legislation haven’t made it into law – at least not yet – but they may herald a new frontier in efforts to blur the line between courts and politics.  

But why go to all this trouble to manipulate the courts? It seems that these officials have taken the same lesson from 2017 that we did: courts play an essential role in our democracy, and fair and independent courts left to do their jobs are likely to benefit the public more than they do the political branches – or their preferred businesses. Wisconsin should be an alarm bell for anyone who believes that justice doesn’t belong to the highest bidder.

(Photo: Flickr/Ervins Strauhmanis)