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Wisconsin-Foxconn deal signals trend of giving corporations favorable legal treatment

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Wisconsin is preparing to hand a $3 billion taxpayer giveaway to a Taiwanese company with a history of skirting environmental laws — the latest initiative in a nationwide trend of states’ increasingly business-friendly policies made at the expense of workers, consumers, and the planet.

The legal provision in question would grant technology manufacturer Foxconn a ticket straight to the Wisconsin Supreme Court to appeal any rulings involving the new plant it’s building in the southeast part of the state.

Critics are concerned about the sweeping provision, which raises questions about corporations getting favorable treatment in the judiciary. The right to appeal directly to the state supreme court “appear[s] to be rigging the game for one foreign company,” said Democratic Rep. Katrina Shankland at Tuesday’s Joint Finance Committee Meeting, which approved the deal along party lines. The bill heads to the Wisconsin Senate next week.

Wisconsin state legislature’s Fiscal Bureau said that no other corporation in Wisconsin has been given a similar right to direct appeal. Christopher Terry, a professor at the University of Minnesota, echoed this statement, telling ThinkProgress that there was “very limited precedent” for a benefit like this.

Environmentalists worry that it will be difficult to monitor Foxconn, which has struggled with pollution from its plants in other countries. Groups like Clean Wisconsin and Midwest Environmental Advocates have discussed the possibility of suing Foxconn for the pollution that could result from its plant.

Foxconn will also enjoy an exemption to environmental laws under the package deal — a provision that, according to Vermont Law School professor Melissa Scanlan, could violate the Wisconsin Constitution’s “public trust doctrine,” which makes legislators responsible for the state’s water and wetlands.

But the Wisconsin Supreme Court ruled in 2013 to limit the public trust doctrine, and the court has shown a clear tendency to favor corporations over workers, consumers, and the environment. A majority of the court’s justices were elected with the help of millions of dollars spent by big business and secret money groups.

Wisconsin Manufacturers and Commerce, one of the groups, began spending big to unseat Justice Louis Butler after criticizing his opinion in a 2005 lead paint case. The court’s decision allowed Steven Thomas, who was exposed to lead paint as a young child in Milwaukee and suffered cognitive impairments as a result, to sue lead paint manufacturers, though he could not identify which specific paint had poisoned him.

The decision in Thomas, as well as another ruling to strike down a tort reform law, galvanized corporations to push “for more systematic, long-range change in the jurisprudence of the Wisconsin Supreme Court,” said John Echeverria, a professor at the University of Vermont.

“The outcomes of judicial elections are having a profound effect on the direction of environmental law in Wisconsin,” added Echevarria, who has surveyed recent decisions by the court.

Justice Michael Gableman, who was elected to replace Butler, joined the ruling to limit the public trust doctrine. In 2009, he authored a concurring opinion that argued for rewriting products liability law in Wisconsin in ways that would reduce liability for manufacturers of dangerous products. One of his footnotes included a lengthy quote from Victor Schwartz, head of the Civil Justice Task Force at the American Legislative Exchange Council (ALEC), a conservative organization backed by the Koch brothers that does not support action against climate change.

“Wisconsin … has stubbornly stuck with the anachronistic consumer contemplation test despite voluminous ongoing and unanswered criticism,” it reads. “This adherence is akin to insistence upon a horse-and-buggy approach in a space-age era.”

The Wisconsin Supreme Court in 2015 shut down a criminal campaign finance investigation of Gov. Scott Walker’s reelection campaign for “coordinating” with secret-money groups. Walker’s campaign had essentially operated through the secret money groups, and evidence leaked to The Guardian showed the campaign soliciting secret, unlimited donations from corporations, including a lead paint company and other polluters.

But the Wisconsin Supreme Court said the state’s ban on coordination was unconstitutional. Two of the justices were suspected of coordinating their campaigns with the same groups, who also spent millions to elect them. But they refused to sit out the case, despite the glaring conflict of interest.

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