February 6, 2017

Chamber of Litigation

On Tuesday, Donald Trump nominated Neil Gorsuch to replace Antonin Scalia on the Supreme Court. Much of the ensuing media coverage focused on Gorsuch’s positions on hot button issues such as abortion, same sex marriage, and affirmative action. This is perhaps not surprising as Supreme Court decisions about these issues routinely garner big headlines.

However, one of the defining if lesser-known features of the Roberts court is the degree to which its jurisprudence is exceptionally friendly to business, often at the expense of consumers, workers, the environment, and small businesses. Under Chief Justice Roberts, the percentage of business cases heard by the court has grown. And the court’s decisions in these cases have made it the most business-friendly court since WWII.

While the corporate litigants that appear before the court vary from case to case, there is one constant in these cases: the U.S. Chamber of Commerce.

The Chamber files amicus briefs in support of corporations in the vast majority of business law cases that come before the Court. Chamber Watch recently completed a statistical analysis of the Chamber’s litigation during a recent three year period. We looked at the courts in which the Chamber filed, the types of parties with which it filed or allied itself, the legal issues it raised, the industries and companies it supported, the governments and agencies it opposed, and the outcomes it obtained.

We found that the Chamber is a prolific litigator, filing a brief roughly every other day of the work week. We also found that its litigation is not limited to the Supreme Court. In fact, less than a third of the cases it litigated were before the Supreme Court; the cases it litigated were roughly evenly divided between the Supreme Court, the state courts, and the federal circuit courts. It also litigated a smaller number of cases in federal district courts and other federal tribunals. The Chamber’s litigation strategy is geographically broad in scope – during the three year period we examined, it litigated cases in the courts of 33 states and in all the federal circuits.

While the Chamber may litigate in a wide variety of courts, the profile of the corporate litigants it supports is remarkably homogeneous. In almost 60 percent of cases, the Chamber supported at least one Fortune 500 company. By way of comparison, it supported a domestic small business only 7 percent of the time. In fact, it supported a foreign multinational twice as often as it did a domestic small business. Now how do you say Chamber of Commerce in Korean or German?

The industry most supported by the Chamber’s litigation was financial services. Energy & utilities was next and pharmaceuticals & healthcare was third. In terms of the individual companies most often supported by Chamber litigation, the financial services industry (State Farm, Bank of America, Goldman Sachs, Allstate, Berkshire Hathaway, Deutsche Bank, Citigroup, Wells Fargo, AIG, and JP Morgan Chase) and the Energy & Utilities industry (ExxonMobil, Koch Industries, BP, PPL, and Shell) dominate the top spots on the list of most aided companies. Pharmaceuticals & Healthcare (Teva and Pfizer) and Tobacco (Reynolds American and Altria) are also well represented.

This pattern of industry and company support is consistent with the Chamber’s role as a front group for unpopular industries such as Wall Street banks, Big Oil, health insurers, and Big Tobacco. Whether via lobbying, campaign spending, or litigation, the Chamber is happy to do the dirty work for these industries and lend them a patina of broad-based small business support.

The Chamber litigated a wide variety of legal issues of interest to business. The number one legal issue litigated by the Chamber was restricting access to the courts, via either class action bans or forced arbitration. More than a fifth of Chamber cases dealt with such civil justice issues. Employment and labor relations issues were second. Environmental issues were third.

These legal issues, while often less prominent than abortion or same sex marriage, are nonetheless of tremendous importance to consumers, workers, and our environment. Restricting access to the courts via class action bans and/or forced arbitration is a favorite tool of Big Business to shield itself from accountability for wrongdoing. The Wells Fargo fake accounts scandal and the Corinthian Colleges fraud case both show how forced arbitration can be used by corporations to screw over consumers. The Chamber defended corporations’ efforts to deny consumers and small businesses their day in court in over 110 cases.

Employment and labor relations covers a broad spectrum of legal issues. Here, the Chamber supported corporate litigants in job discrimination suits by minority employees, opposed suits by employees to recover overtime pay, sued to block increases in the minimum wage, fought efforts to classify gig economy workers as employees of the giant tech companies that exploit them, and tried to block unionization efforts.

In short, the Chamber opposed almost all efforts by workers and governments to improve compensation and working conditions for tens of millions of hard working Americans. Labor’s share of national income has dropped somewhere between 3 and 8 percentage points since 1980, a trend that has accelerated since 2000. This drop annually shifts about $750 billion from workers to business owners, meaning gains flow disproportionately to the already well-off. This shift is one of the drivers of deepening income and wealth inequality in the United States, and the Chamber’s anti-worker litigation has helped make it possible by weakening worker protections.

Environmental issues also cover a broad spectrum of subjects. Here, the Chamber has opposed laws and regulations on regional haze, greenhouse gas emissions, wetlands protections, air pollution, the cleanup of the Chesapeake Bay, water pollution, fracking, ozone, air quality, groundwater pollution, waste incineration, oil pipelines, mercury, and mining discharges. It also argued against the imposition of civil penalties in the Deepwater Horizon oil spill. In fact, it supported BP not just once, but four times in Deepwater Horizon-related litigation. While the Chamber claims that it recognizes the importance of environmental protections, its track record of opposing dozens of critical environmental laws and regulations in court suggests otherwise. In the three year period we examined, the Chamber itself sued the Environmental Protection Agency (EPA) fifteen times and filed amicus briefs supporting corporate litigants in suits against the EPA in another 11 cases, making the EPA the government agency the agency the Chamber most often opposed in court.

In sum, the Chamber’s prodigious litigation and its focus on supporting huge multinationals as they litigate against consumers, workers, and governments demonstrates how the Chamber views the courts as a third front in its fight against progressive reforms. If its tens of millions in dark money elections spending don’t result in its chosen candidates getting elected and its hundreds of millions in lobbying don’t result in Congress and/or government agencies passing the bills and writing the regulations it wants, it can always go to court. As you think about the nomination of Judge Gorsuch, you should therefore also consider not just how he might rule on the hot button legal issues that dominate the headlines, but also how he might respond to the suite of issues the Chamber litigates that are of such tremendous importance to consumers, workers, and the planet. The Chamber is very pleased with the nomination of Judge Gorsuch. Should you be?

This article originally appeared on Daily Kos.