Since the early 1990s, an international campaign modeled on the
anti-apartheid movement of the 1980s has struggled to bring
democracy to the people of Burma.
Like the anti-apartheid campaign, the Burma movement has used
divestment and purchasing laws to pressure an oppressive regime
into political reforms. More than two dozen U.S. cities and
counties have passed Free Burma purchasing laws. One of the first
of these measures was enacted in 1996 by the Massachusetts state
legislature.
But a recent court decision threatens to pull the rug out from
under the Free Burma laws–and lots of other laws at the same time.
As a result of a lawsuit brought by the National Foreign Trade
Council (NFTC), a Washington, D.C., lobbying group, a federal judge
ruled in November 1998 that the Massachusetts Burma law was
unconstitutional. A U.S. appeals court upheld the decision last
summer.
‘This is an attempt by a handful of large companies to repeal
the legacy of the South Africa anti-apartheid movement,’ says
Massachusetts state legislator Byron Rushing, author of the Burma
bill. ‘If this court decision had happened 10 years ago, Nelson
Mandela might still be in prison today.’
The Burma purchasing law itself is pretty simple: It adds a 10
percent penalty to bids for state contracts from companies that do
business in Burma. And it seems to be accomplishing its objective
of cutting off financial support for Burma’s brutal military
regime. A number of companies, including Apple Computer, Eastman
Kodak, and Hewlett-Packard, pulled out of Burma soon after the law
was passed.
But the law’s success has corporations worried. While few
companies are looking to make big bucks in Burma–the country’s
gross national product is less than $10 billion–some
multinationals are concerned that the Burma law is only the
beginning. Already, a few cities have passed similar purchasing
laws focused on places like East Timor, Tibet, and Nigeria. And New
York City, along with New Jersey, California, and Pennsylvania,
adopted the tactic with impressive results last year, targeting
Swiss banks that had dealt in gold and other assets taken from
victims of the Holocaust during World War II. Shortly before a New
York City law penalizing them went into effect last year, three of
Switzerland’s largest banks agreed to pay Holocaust survivors $2
billion.
‘It’s outrageous for the NFTC to claim that a boycott of
companies is unconstitutional,’ says Simon Billenness, an analyst
at Trillium Asset Management, a Boston investment firm, and
coordinator of the New England Burma Roundtable. ‘If it wasn’t for
a boycott of tea, we wouldn’t have a constitution in the first
place.’
So in July, one week after the Independence Day holiday weekend,
Massachusetts officials announced that they had appealed the case
to the U.S. Supreme Court. Texas, California, New York, and seven
other states, as well as 12 cities and counties, including Los
Angeles, New York City, and Philadelphia, filed amicus briefs in
support of the appeal, as did more than two dozen members of
Congress, the AFL-CIO, Defenders of Wildlife, Friends of the Earth,
and a number of other environmental and human rights
organizations.
Why are so many different groups concerned about an obscure
Massachusetts purchasing law? The court decision, it turns out,
could have far-reaching consequences. Among the laws it could
affect:
— Environmental purchasing preferences, which include recycled
content, alternative fuels and ink, and sustainable forestry
standards. Forty-eight states have passed some form of these
laws.
— Purchasing laws targeting oppressive regimes in East Timor,
Nigeria, and Tibet.
— At least 43 ‘Buy American’ or ‘Buy Local’ laws.
— Legislation enforcing the MacBride Principles, which require
companies to hire both Catholics and Protestants if they do
business in Northern Ireland. In the past decade, 26 cities,
including Chicago, Philadelphia, Tucson, and Omaha have passed
MacBride Principles laws.
— Laws requiring fair labor standards for goods purchased by
cities or states.
— Action by New York City, Pennsylvania, New Jersey, California,
and other states, which forced Switzerland’s three largest banks to
settle claims from Holocaust survivors.
Does the Massachusetts law violate the U.S. Constitution?
‘Private individuals and corporations can base their purchasing
decisions on their own moral standards,’ says Professor Robert
Stumberg of Georgetown University’s school of law. ‘Will the
Supreme Court bar states from doing the same thing? I doubt
it.’
And while the question has never actually come before the high
court in this form, says Stumberg, the Justice Department–under
President Ronald Reagan’s attorney general Edwin Meese III, no
less–concluded that the South Africa laws, on which the
Massachusetts Burma law is based, were constitutional.
‘It’s a unique opportunity,’ says Billenness of the legal
challenge. ‘How often do you get the chance to defend democracy in
the United States and simultaneously help free an enslaved nation
in another part of the globe?’
The New England Burma Roundtable:
800/548-5684. The Free Burma Coalition: www.freeburma.orgor
zarni@freeburmacoalition.org.
