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Barons of Coal, Begetters of Change

Former Massey CEO Don Blankenship. (Photo: AP file)

Last week, the former CEO of the Massey Energy Company, once the fourth largest producer of coal in the United States, was sentenced to the maximum penalty allowed by law – one year in prison, one year of supervised release, and a fine of $250,000 – for conspiring to willfully violate mine health and safety standards. The core elements of the Massey story, which amount to a virtual case study in the abuse of corporate power, resonate with generations of West Virginians. And yet these corporate abuses, while catastrophic for their brutalization of workers and loss of life, have produced – and continue to produce – some of the most powerful and positive forces for legal change in U.S. history.

Massey Energy is the latest incarnation of this struggle. In 1998, Massey was sued by the president of a Virginia mining company, Hugh Caperton, who claimed that Massey had fraudulently cancelled a supply contract with his company, effectively running it out of business. Four years later, a West Virginia jury agreed, and awarded Caperton’s company $50 million in damages.

Massey appealed the decision to the highest court in the state, the Court of Appeals of West Virginia. But Massey’s CEO, Don Blankenship, went even further.

West Virginia is one of 22 states that chooses to elect its state Supreme Court judges, a practice that allows those with financial interests in courts cases to spend huge amounts of money to influence decisions. In 2013-14 alone, over $34.5 million was poured into state Supreme Court elections across the United States.

With Massey’s $50-million appeal en route to West Virginia’s high court, Blankenship knew what to do. During the next election cycle, he spent $3 million on the Court of Appeals candidate of his choice. His candidate won, and once on the bench, he cast the deciding vote in the decision overturning the $50 million verdict.

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Blankenship’s egregious spending caught the attention of the U.S. Supreme Court, and the ensuing case, Caperton v. Massey, produced an outsized outcome. For the first time in history, the U.S. Supreme Court held that a judge could not hear a case involving a party whose election spending created a risk of actual bias.

Prior to Caperton, if a party wanted to question the fairness of a judge, they needed to show that the judge was actually biased against their case. Blankenship’s excesses in the Caperton case, however, led the U.S. Supreme Court to rewrite the rule. Now, a challenger could meet the lesser standard of showing a risk of actual bias. Blankenship’s flood of campaign cash had, in effect, made it easier for those who couldn’t afford to spend huge amounts of money on judicial elections to assert their right to a fair trial.

Just one year after the Caperton decision, a coal dust explosion killed 29 miners at the Upper Big Branch mine in Raleigh County, West Virginia. Massey owned the mine, and the ensuing investigation by the governor found that Blankenship’s ability to manipulate government officials and institutions had enabled him to put profits ahead of worker protections at the site. In fact, in the decade leading up to the explosion, Massey had been cited with more than 63,000 violations of mine safety laws, and 13,000 violations of the federal Clean Water Act.

In response to this official report, over 35,000 people from across the country joined in a legal effort to call for the revocation of Massey’s corporate charter, under a longstanding law that authorized state governments to revoke the charters of corporations that have abused or misused their legal authority. Ultimately, Massey was acquired by another energy company, and ceased to exist as a separate entity.

Though the charter revocation effort stalled, Blankenship’s abuses, now captured by an unprecedented sentence and public condemnation, created a new legacy for those who challenge corporate power. From the scars of Blankenship’s excesses, Caperton fashioned a new weapon for fighting the effects of big money in judicial elections, and created a new means of empowering all Americans to fully realize their right to a fair day in court.

Scott Greytak

Scott Greytak serves as Counsel for Free Speech for People. He is a social justice attorney with a life-long devotion to equity and opportunity for all, with a background in advocacy, policy development, litigation, state- and local-level campaigns, and academic scholarship.

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