Opinion Supreme Court ruling may let big business hide what it does with public money

20:45  25 march  2020
20:45  25 march  2020 Source:   sfchronicle.com

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The government seems poised, in the wake of the coronavirus pandemic and resulting economic disaster, to bail out big businesses and assist small businesses. One resulting question arises: Will taxpayers be able to figure out how the money given to big businesses gets used? The answer: Maybe not, given a ruling last year by the John Roberts Supreme Court.

a large stone building with United States Supreme Court Building in the background: The Supreme Court in Washington, D.C. © Patrick Semansky / Associated Press

The Supreme Court in Washington, D.C.

The high court last year made it easy for defense contractors and other Fortune 500 companies to hide what they do with billions of dollars of government money.

The ruling, in the case Food Marketing Institute vs. Argus-Leader Media, was a cause for rejoicing and celebration for the Fortune 500. But it delivered nothing to taxpayers, consumers, small businesses, government watchdogs and the news media.

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Early repercussions of the high court’s 6-3 decision have been felt. A San Francisco federal judge on Nov. 24, in a Freedom of Information Act suit brought by the American Small Business League, lamented the Food Marketing decision, saying that under the new ruling, “It appears that defendants need merely invoke the magic words - ‘customarily and actually kept confidential’ - to prevail.” U.S. District Judge William Alsup said he had learned in 25 years of law practice and 20 years as a judge “how prolifically companies claim confidentiality, including over documents that, once scrutinized, contain standard fare blather and even publicly available information.”

Alsup nevertheless acknowledged he was “not writing on a clean slate” and held that the new Supreme Court case allowed defense contractor Lockheed Martin to withhold plans about how it would hire small-business contractors. The judge did hold, though, that government reviews of how big defense contractors comply (or don’t comply) with small-business subcontracting requirements must be made publicly available, giving a victory to ASBL and small businesses.

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The Food Marketing decision has critics in Congress, on both sides of the aisle. Sens. Dianne Feinstein, D-Calif.; Charles Grassley, R-Iowa; John Cornyn, R-Texas; and Patrick Leahy, D-Vt., have co-sponsored a bill, S2220, to legislatively overrule the Supreme Court’s majority decision. Feinstein said, “Companies shouldn’t be allowed to hide information about how they’re spending federal funds or using federal property. Doing so would prevent the public from holding companies accountable for wasting taxpayer funds.”

It’s too early to tell how much traction that bill will get, especially given the power of corporate lobbyists on Capitol Hill and now the understandable preoccupation with the coronavirus..

The issue is vitally important, because both houses of Congress are debating packages that would aid small businesses and bail out big businesses. Boeing is asking for a $60 billion bailout package even after it hid flaws with the 737 Max, and cruise lines and airlines are lobbying President Trump for bailouts as well. Congress should do something to help small businesses whose survival is imperiled by the economic dislocation spawned by the pandemic, but big businesses like Boeing and cruise lines are not so sympathetic. The Food Marketing decision may make it easy for them to hide what they are doing with any bailout money. Taxpayers should be able to know whether any bailout money is used to help workers who need it, or used to buy back stock or shower bonuses on corporate CEOs.

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Here’s hoping Congress does something about the Food Marketing decision. If it doesn’t, defense contractors and other recipients of billions of dollars of government money will try to clamp an ironclad lid of secrecy over how they spend government dollars. A defense contractor could make a defective plane, and then claim confidentiality over its plans after the plane crashed. Or, as in the American Small Business League case, a company could try to claim secrecy over whether its performance on a government contract complied with its goals (although the court in the ASBL case said that government compliance documents must remain public). That isn’t a hypothetical: Documents uncovered in the ASBL case showed a “huge gap” between a company’s promises and its performance.

Defense contractors get tens of billions of dollars each year, ostensibly to protect our democracy and our freedoms against foreign enemies. Ironically, though, the military-industrial complex, aided and abetted by the Roberts Court’s recent ruling, will likely try to keep taxpayers and the public in the dark, just as in countries like Russia and China. The military is supposed to protect us from those countries, not mimic them. The new Food Marketing decision, unfortunately, may make it too easy to keep the public in the dark about where taxpayer money goes, at a time when hundreds of billions of dollars are about to be showered on big businesses.

Karl Olson is a San Francisco lawyer. He represents the American Small Business League in the San Francisco case and filed a friend-of-the-court brief in the Food Marketing case.

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