By Dennis J. Seese aka sundin
Don Blankenship, CEO of Massey Energy — the company that owned the mine where disaster struck last week — notoriously commented to Forbes in 2003 that “we don’t pay much attention to the violation count” even though the same article went on to note that the company’s three biggest rivals mined “twice as much coal in the state as Massey” and were only cited 175 times collectively, as opposed to Massey’s 501 citations in 2000-2001. Blankenship chalked it up to Massey’s being “unfairly targeted” by regulators (a common theme). Yet, a member of West Virginia’s Surface Mining Board referred to one of the violations Massey wasn’t “paying attention to” in this time period as “absolutely the worst behavior by any company that any member of this board has ever seen over the decades that this board has been in existence.”
But, honestly, why should Mr. Blankenship pay attention to violations when he can buy sympathetic judges and friendly legislators adverse to enforcing, and in some cases favoring efforts to roll back, those unfortunate regulations?
If that doesn’t work he can facilitate the creation of faux newspapers to attack and discredit political opponents. And if/when all that fails resort to good ole’ fashioned intimidation. Michael Tomasky contends that Massey is able to push the “boundaries of regulation on the assumption that it either won’t get caught or will be able to vastly outgun the opposition (usually poor local people) in the court room.” Tomasky’s correct estimation of this facet of Blankenship’s arsenal was corroborated in 2004 by Hugh Caperton (plaintiff in Caperton v. Massey) who told the Washington Post that Blankenship warned he’d “spend a million dollars a month on attorneys, and I’ll tie you up for years in courts.” To further intimidate Caperton he added that “every expert you get, I’ll find three.” Blankenship isn’t content with his overwhelming financial advantage in these matters so he often resorts to more dubious and corrupt methods of fixing the outcome in his favor.
As Kevin noted, Blankenship’s infamous 3 million dollar purchase of a seat on the West Virginia State Supreme Court of Appeals not only spawned a John Grisham novel, it eventually made it all the way to the U.S. Supreme Court where, in 2009, even this decidedly pro business bench (narrowly) ruled that Blankenship had, indeed, gone too far. Justice Kennedy cast the deciding vote in Caperton v. Massey in favor of forcing Blankenship’s judge, Brent Benjamin, to recuse himself on the grounds that his failure/refusal to do so had violated the plaintiffs Constitutional rights to due process under the law.
This is the most widely known example of Mr. Blankenship’s attempts to use his vast fortune to buy favorable legal outcomes and install like-minded legislators who “won’t pay much attention to the violation count” chalking it up, as always, to “unfair targeting” of Massey by regulators as lives are put in jeopardy, and ultimately, as we saw in this past week’s tragedy, lost. But sadly there are other examples.
Mr. Blankenship sits on the board of directors of the powerful, politically active and increasingly partisan United States Chamber of Commerce, who have quietly established 3 newspapers devoted to highlighting perceived “anti-business” practices of trial lawyers engaging in “frivolous” lawsuits. One of these papers focuses exclusively on West Virginia where, coincidentally, Massey conducts a large percentage of its business. The ‘paper’ is called the West Virginia Record and it focuses obsessively on West Virginia attorneys’ collective and predatory pursuit “of frivolous lawsuits to game the system and pillage private property” while constantly lamenting the fact that “West Virginia’s courts regularly rank among the most litigious in the land.” Can it really be considered ‘frivolous’ or overly litigious to prosecute a company like Massey with literally thousands of code violations?
Right now The West Virginia Record still has no mention of the Upper Big Branch tragedy anywhere on its site. You can, however, read a rant from Elliott “Spike” Maynard about how the EPA is “Trying to Destroy Coal Miners.” This is the same Mr. Maynard who’d also previously sat on the West Virginia State Supreme Court and ruled in Massey’s favor in Caperton v Massey only to have pictures surface, after the verdict was handed down, of he and Don Blankenship vacationing together in the French Rivera. Maynard is currently running for the seat in West Virginia’s 3rd Congressional District.
The Chamber established the West Virginia Record, through its Institute for Legal Reform, in 2005 after the previous year’s election cycle, which saw Blankenship pouring millions into the campaign coffers of his preferred State Supreme Court justice. That 2004 cycle also saw Mr. Blankenship funnel large sums of money into Republican Hiram Lewis’s ultimately unsuccessful campaign to unseat West Virginia Attorney General Darrell McGraw. According to the Times West Virginian, Lewis’s operation was largely sustained and “bolstered by campaign ads bankrolled by Massey Energy Chief Executive Officer Don Blankenship.”
Darrell McGraw has earned the eternal enmity of men like Blankenship and U.S. Chamber President Tom Donohue for his willingness to go after large tobacco and pharmaceutical companies and successfully litigate settlements for corporate malfeasance. McGraw has won settlements totaling nearly $2 billion since 1992. But McGraw’s multi-million dollar settlement with Purdue Pharma in 2004, involving the drug OxyContin, coupled with his narrow re-election that year was too much for the Chamber to abide and lo and behold the West Virginia Record was established and in short order began attacking him. This piece titled “Dictator Darrell” is one of the hundreds of paranoiac, poorly written and hysterically hyperbolic hit pieces the ‘paper’ has published on McGraw over the past five years. It’s unfortunately distributed and available for free throughout the Mountain State. The West Virginia Record’s National Chamber affiliation is never forthrightly acknowledged and nearly always buried in the fine print when it has to be. A 2009 editorial originally published on the WV Gazette noted that the “Chamber opposed McGraw in elections and even funded a small, free, weekly newspaper, The West Virginia Record, partly to denounce him.”
Attorney General McGraw was moved (and wise) enough to publicly state, in the previously cited Times West Virginia article, that his real opponent in the 2008 election was not really Republican candidate Dan Greear but the United States Chamber of Commerce, on whose powerful board sits none other than: Don Blankenship.
In conjunction with constant attacks from the West Virginia Record, the National Chamber poured $330,682 into a last minute attack ad blitz orchestrated by Mentzer Media Services, chief producers of the Swift Boat Veterans for Truth ads, on behalf of Greear.
Despite all of the Chamber’s influence and interference, Mr. McGraw was re-elected and is still able to serve the people of West Virginia.
But as we can see with the resurgence of Blankenship buddy Elliott Maynard, these shameless attempts to exert undue influence on the judicial and political processes will continue as long as there is little public scrutiny. Now that Blankenship’s mine is the site of a national calamity, the spotlight burns brighter. Will he continue to rig the system in his favor, through intimidation, financial tampering and dishonest proxy attacks on political opponents? Or will proper scrutiny spell an end to his political career?