Action Alert: Defend the Mass. Burm

[sbillenness@xxxxxxxx]

NEW ENGLAND BURMA ROUNDTABLE

Action Alert: Write Your State Attorney General! - June 26, 1998

PLEASE CIRCULATE THIS ACTION ALERT TO OTHERS!

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In This Action Alert

1. Update on Lawsuit Against MA Burma Law
2. Background Information
3. What To Do If You Live Outside Massachusetts
4. What To Do If You Live in Massachusetts
5. Background Article
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1. Update on Lawsuit Against MA Burma Law - June 26, 1998

The corporate lawsuit against the Massachusetts Burma law will soon come
before Judge Joseph Tauro. It's critical that we lobby our state attorneys
general to support Massachusetts in this suit.

On July 8, Judge Tauro will hold a scheduling conference to set a deadline
for the completion of briefs. It is expected that the judge will give the
National Foreign Trade Council (NFTC) and the Commonwealth of Massachusetts
a deadline of late July/early August to complete their briefs.

It is not clear whether the judge will on July 8 also rule on a motion by
the NFTC for a protective order. The NFTC has been clearly shaken by
letters sent to NFTC-member companies by outraged citizens threatening
consumer boycotts against corporations involved in the lawsuit.
Consequently, the NFTC is asking for a protective order that will hide the
names of any corporations connected to the lawsuit.

At this point, please take the time to write your state's attorney general.
Ask him or her to file an amicus - of friend of the court - brief,
specifically supporting Massachusetts in this lawsuit.

Please find a sample letter below. For added impact, ask for a meeting with
your attorney general or his/her staff. Contact us if you obtain a meeting
or a reply to your letter.

Simon Billenness
* for the New England Burma Roundtable *
Franklin Research & Development
(617) 423-6655, x225
(617) 482-1679 fax
sbillenness@xxxxxxxx

Dan Orzech
(610) 650-7755
(610) 676-0229
orzech@xxxxxxxx

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2. Background Information

On April 30, the corporate-funded National Foreign Trade Council (NFTC)
filed a lawsuit challenging the Massachusetts Burma selective purchasing
law. If successful, this lawsuit could deal a mortal blow to the grassroots
activism of the Free Burma Coalition - and other movements that use
consumer boycotts and selective purchasing laws in connection with such
issues as East Timor, Nigeria, Tibet and sweatshops.

If successful, this lawsuit would greatly restrict our ability as citizens
to direct how our elected officials spend our tax money. If corporations
had successfully challenged similar South Africa selective purchasing laws,
Nelson Mandela might still be in prison today.

The NFTC alleges that the Burma law is unconstitutional and impinges on the
federal government's power to conduct foreign policy. (See the background
article below for details of the NFTC's arguemnts.) But this lawsuit would
greatly restrict our freedom as citizens to direct how our elected local
officials spend our tax money.

Aung San Suu Kyi asked us to please use our liberty to help the Burmese
people secure theirs. But now, our task is greater. As we help to restore
democracy in Burma, we are working to secure our own rights and liberty.

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3. What To Do If You Live Outside Massachusetts: Write Your Attorney General

It is vital that we alert our state attorneys general to this threat and
ask them to defend our rights, and theirs.  Please adapt the letter below
and send it to your Attorney General.

** Sample letter **

I am writing to urge that you defend one state's sovereignty, so that [your
state] will continue to be able to exercise its ability to defend and
protect our rights and values.

[Include a paragraph describing yourself and your roots in the local
community.]

At present, the corporate-funded National Foreign Trade Council has filed a
lawsuit in Federal district court in Boston against the Massachusetts Burma
selective purchasing law. Sponsored by state rep. Byron Rushing, this law
effectively bars companies that do business with the Burmese military junta
from receiving state procurement contracts.

How Massachusetts - or any state -spends its tax dollars is matter for the
citizens of Massachusetts and their elected officials. It is a violation of
state sovereignty and local democracy for the federal government or
corporations to try to micro-manage state or local spending.

Inspired by the campaign against apartheid in South Africa, Aung San Suu
Kyi, the Nobel Peace Prize laureate and leader of the Burmese democracy
movement, has called for economic sanctions on Burma to press the ruling
military junta to restore democracy in that country. She has described
selective purchasing laws - such as the one enacted in Massachusetts - as
an effective means of supporting the Burmese democracy movement.

I urge you to contact Massachusetts officials and offer the support of your
office in the fight to defend the Massachusetts Burma selective purchasing
law. I specifically urge you to initiate and support a campaign by the
National Association of Attorneys General to strongly defend the
Massachusetts Burma law. I also specifically urge you to contact the office
of the Massachusetts Attorney General to offer your support.

I look forward to your support on this critical issue. Please tell me what
action you intend to take.

Please send a copy of your letter to:

Attorney General Scott Harshbarger, Commonwealth of Massachusetts, 1
Ashburton Place, Boston, MA 02108
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4. What To Do If You Live in Massachusetts

What to tell your elected Massachusetts representatives:

-  Describe your deep roots in your community and tell them you vote!

-  You believe that elected Massachusetts legislators and officials should
decide how to spend Massachusetts taxpayers money, not large corporations

-  Citizens of cities and states have the right to express their moral and
political beliefs by denying taxpayer-funded contracts to companies that do
business with dictators

-  You believe strongly that Massachusetts should stand firm against this
unfair pressure

Governor Paul Cellucci State House, Commonwealth of Massachusetts, Boston,
MA 02133

Attorney General Scott Harshbarger, Commonwealth of Massachusetts, 1
Ashburton Place, Boston, MA 02108

Write your state representative and state senator at: State House,
Commonwealth of Massachusetts, Boston, MA 02133

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5. Background Article

Companies Take to the Courts Case Against Burma Law Now Likely

Investing For a Better World April 15, 1998

By Simon Billenness

On February 12, the Cato Institute held a policy forum entitled "Are State
and Local Sanctions Against Burma Constitutional?" As the Burmese military
junta's ambassador looked on, David Schmahmann of Nutter, McClennen & Fish
and Frank Kittredge, President of the National Foreign Trade Council
denounced the growing number of state and local Burma selective purchasing
laws as unwise and unconstitutional.

Kittredge was defiant. The National Foreign Trade Council stood ready to
"fire its catapault" and sue Massachusetts on the grounds that the states
Burma selective purchasing violates the Constitution.

The potential lawsuit represents a new and disturbing aggressiveness by
corporations towards both human rights and state sovereignty.  "The major
concern that we have is that this suit represents a new attitude on the
part of American corporations," said Massachusetts State Representative and
Burma law sponsor  Byron Rushing to the Boston Globe. "The signal that is
going to go out to human rights activists is that these corporations are
not going to work with people who are trying to restore human rights. I
think that this is going to be a public relations nightmare for these
companies."

Case for Sanctions Builds

Ironically, this new corporate legal offensive against Burma laws comes at
a time when the case for sanctions on Burma is increasingly clear and
legitimate.

The principal proponent for economic sanctions on Burma is Nobel Peace
Prize laureate Aung San Suu Kyi and her party, the National League for
Democracy (NLD). The NLD won over 80% of the seats in the 1990 Burmese
elections but the ruling military junta refused to allow the elected
representatives to take up their seats or form a government. Several
representatives who managed to escape death or imprisonment in Burma fled
the country and formed the National Coalition Government of the Union of
Burma (NCGUB), a democratic government-in-exile. The NCGUB has echoed Aung
San Suu Kyi's call for sanctions and its members have traveled the world to
promote the cause of democracy in Burma.

Recently, in a rare interview from her home in Rangoon, Aung San Suu Kyi
reiterated her support for sanctions to a reporter from Business Week. Aung
San Suu Kyi stated that: "There are those who claim that the people of
Burma are suffering as a consequence of sanctions, but that is not true."
She added: "We want investment to be at the right time - when the benefits
will go to the people of Burma, not just to a small, select elite connected
to the government."

The combination of economic sanctions and the Asian economic crisis has
dealt the Burmese economy a severe blow. The country currently faces an
acute shortage of foreign exchange and inflation of nearly 50%. In
response, Burmas ruling junta has greatly restricted imports and revoked
the foreign exchange licenses of nine private banks.

When the Clinton Administration announced in April 1997 that it would ban
new U.S. investment in Burma, the military junta argued that corporations
based in the neighboring ASEAN countries would simply buy out U.S.
interests. This view was born out later that year, when Petronas of
Malaysia purchased an interest in an offshore gas field previously owned by
Texaco. However, since the Asian economic crisis took hold, ASEAN companies
no longer have the means to buy out American interests in Burma. On a March
visit to Burma, the Malaysian Prime Minister Mahathir Mohamad stated that
Malaysia was no longer interested in investment in Burma, only trade.

Faced with mounting evidence of the effects of sanctions, the military
junta is changing its tactics. In January, Lt. General Khin Nyunt
acknowledged that sanctions and other "machinations" were hurting Burmas
"very fragile" economy. However, this has simply led the junta to make
cosmetic changes. Business entities have suddenly stumped up hundreds of
thousands of dollars to hire two American public relations firms, Jefferson
Waterman and Bain & Associates, to lobby against U.S. economic sanctions
and rebuild the juntas shattered image. In the course of this makeover,
the junta changed its name from the ominous "State Law and Order
Restoration Council" to the kinder and gentler "State Peace and Development
Council."

Several observers have noted that the effect of sanctions and the economic
downturn have caused many in the junta to slip back into the army's old
policy of economic isolationism. However, the military's last experiment in
economic "self-reliance," which the country endured from 1962 to 1988,
ended in economic collapse and widespread pro-democracy demonstrations in
the streets. To resume a policy of economic isolation would put the Burmese
economy in a nose-dive, quite possibly leading to new protests in the
streets that would quickly take on a political tone.

On the other hand, some Burma-watchers argue that elements within the army,
which benefit from foreign investment and trade, would not allow a
resumption of economic isolationism.  The question now remains, when will
these potential voices of reason recognize the need for political reform?
Aung San Suu Kyi has called for sanctions as a means of pressing the
military junta to come to the negotiating table. Until the junta can show
that it is engaged in good faith dialogue with leaders of the Burmese
democracy movement, the pressure for sanctions will increase.

Purchasing Laws Proliferate

In the past year, the number of Burma selective purchasing laws has
continued to climb. Such laws effectively bar a city, county or state from
buying goods or services from companies that do business in Burma. In 1997,
eight more U.S. cities adopted Burma laws, including Chapel Hill (NC),
Santa Cruz (CA), Quincy (MA) and New York City. In the U.S., 18 cities, one
county and one state have enacted Burma selective purchasing laws.
Campaigns are currently underway to add Los Angeles, Minneapolis, New York
State, Seattle and Vermont to the list.

On March 17, the Free Burma movement scored a major new success. On that
day, the Marrickville Council in New South Wales, Australia, voted
unanimously to become the first local authority outside the United States
to enact a Burma selective purchasing law. Hoping to spark a movement, the
Marrickville Council also pledged to encourage other councils and shires in
Australia to enact similar laws.

The tactic is also being increasingly adopted by other causes. In the San
Francisco Bay Area, Berkeley, Oakland and Alameda County have adopted
selective purchasing laws that target companies that do business in
Nigeria. Berkeley also targets companies in Tibet whose operations in that
country have earned the specific disapproval of the Tibetan
government-in-exile.

In response, corporations have stepped up their campaign against selective
purchasing laws - with mixed success. Lobbying by Atlantic Richfield (ARCO)
and Unocal helped defeat a California Burma bill in committee. Unocal has
also lobbied against such a law in Texas, while United Technologies
submitted opposing testimony at hearings in Connecticut. The corporate
anti-sanctions group, USA-ENGAGE, keeps overall track of state and local
selective purchasing laws on its website at <www.usaengage.org>.

However, in Seattle, the Washington Council on International Trade - a
trade association that includes Boeing, Microsoft and Weyerhaeuser -
submitted a misleading letter to then-Seattle Council President Jan Drago.
The letter falsely claimed that, because of its Burma law, the city of
Berkeley could no longer buy from IBM or Motorola - a claim later disproved
by Berkeley's purchasing division. The trade association also claimed that
"Berkeley...cannot buy gasoline from major companies, and thus is relegated
to low-grade gas." In fact, Berkeley buys gas from Golden Gate Petroleum,
which obtains it from Tosco - one of the largest refiners in the U.S. After
disproving these false claims, the Seattle Burma Roundtable now expects the
city council to enact a Burma law later this year.

The Legal Threats

Having failed to stop the growth in the number of Burma laws through
lobbying, corporations are increasingly turning to other means. European
and Japanese corporations have pressed their governments to challenge the
Massachusetts selective purchasing law at the World Trade Organization
(WTO). American companies are actively planning a federal lawsuit.

The European Commission and the Japanese government continue to threaten to
take the Massachusetts Burma law to the WTO. However, Massachusetts and the
Clinton Administration continue to hold firm in defense of the law.
Massachusetts  State Rep. Byron Rushing (D, Boston) has offered to amend
the law to bring it into compliance with the WTO Government Procurement
Agreement (GPA), which bars the use of "political" criteria in assigning
most federal and state contracts. However, Rep. Rushing has asked the
European Union to enact tougher sanctions on Burma in return for any
amendments.

As yet, the European Commission has shied away from even the appearance of
negotiating with Massachusetts in this dispute. Even if the Massachusetts
Burma law is amended, the law would retain much of its bite. Many state
authorities with considerable spending powers, such as Massport and the
Massachusetts Bay Transportation Authority - which are covered by the Burma
law are not covered by the WTO GPA.  In addition, the WTO GPA also covers
contracts over $500,000 for goods or services and $7 million for
construction, while many state contracts are for lesser amounts. Meanwhile
municipal Burma laws, many of which like the Massachusetts law, also carry
large economic clout, would remain unchallenged and unaffected.

The real threat to selective purchasing laws comes from the lawsuit
proposed by American companies. According to an internal memo reprinted in
Inside US Trade, the National Foreign Trade Council plans to file lawsuits
against Massachusetts and another unspecified jurisdiction - believed to be
New York City -alleging that state and local Burma selective purchasing
laws are unconstitutional. If successful, these lawsuits could wipe out all
existing selective purchasing laws.

The Case Against

The case against state and local selective purchasing laws is three-fold.
First, corporations argue that state and local selective purchasing laws
encroach upon U.S. foreign policy. The Constitution, they argue, reserves
foreign policy for the federal government under the Supremacy Clause.

Secondly, the Constitution prohibits states or localities from regulating
or taxing commerce if such actions burden interstate or foreign commerce.
In a phrase oft quoted by corporations, the Supreme Court has stated that
the nation must "speak with one voice" in its regulation of foreign commerce.

Finally, the Constitution states that the laws and treaties of the United
States are "the Supreme Law of the Land" and pre-empt state and local laws.
Corporations contend that the federal ban on new investment in Burma,
enacted into law in 1996, pre-empts any additional measures against
companies doing business in Burma enacted by cities or states.

The Case in Favor

If companies were truly concerned about state and local influence on
foreign policy and commerce, they would have to challenge more than just
selective purchasing laws. Governors and Mayors have traditionally held
considerable influence over foreign policy and commerce through
establishing cultural exchanges and sending trade missions to foreign
countries. Of course, corporations stand to benefit when their executives
accompany state officials on trade delegations. The fact that companies
support such measures that benefit them undermines their credibility as
disinterested defenders of federal prerogatives over foreign policy.

It is also debatable whether the Constitution truly bars state and local
involvement in foreign policy. In the Spring 1992 issue of Foreign Policy
magazine, Michael Shuman argues that the Founding Fathers created a
constitution that sought only to curb the excesses of the states' foreign
policy - not to eliminate it altogether. The Constitution, in fact, grants
only a few narrowly defined powers concerning foreign policy to the federal
government. According to the 10th Amendment: "The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people."

In defense against any challenge under the Commerce Clause, cities and
states are likely to cite the "market participant doctrine." This exception
to the Commerce Clause essentially grants cities and states broad latitude
when they participate in the marketplace for goods and services in the same
way that people do. In brief, states have the same rights as any other
consumer to choose with whom they do business. This defense may well sit
well with federal judges who are increasingly less willing to allow the
federal government to micromanage areas of policy - such as procurement -
that clearly fall under the umbrella of state sovereignty.

Another possible defense lies within the Constitution. The Supreme Court
has increasingly ruled that the spending of money, whether by corporations
on advertising or by candidates for political office on their own
campaigns, is an exercise of free speech and is, therefore, protected under
the First Amendment. Building on previous rulings, a case could certainly
be made that state and local selective purchasing laws are also a
constitutionally-protected expression of free speech.

Defend Your Rights

The corporate attack on selective purchasing laws is an attack on the
fabric of our democratic system of government. One of the building blocks
of our democracy is that we elect those officials who raise our taxes and
spend our money. If corporations or foreign bureaucrats take away some of
those powers from our elected representatives, it takes away those powers
from us, the people.

Aung San Suu Kyi once asked the international community: "Please use your
liberty to help us secure ours."  As we defend against the corporate attack
on selective purchasing laws, we can appreciate how our own liberty is
inseparable from that of the Burmese people.

Copies of this article are available from:

Simon Billenness
Franklin Research & Development Corporation
711 Atlantic Avenue, Boston, MA 02111
(617) 423-6655
(617) 482-6179 (fax) 	
sbillenness@xxxxxxxx
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