Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (23 page)

The theme of all of these corporate arguments is only partly that corporations should have the same First Amendment “breathing space” as people do to debate public issues with passion, hyperbole, and even scurrilous attacks and arguable falsehoods. An additional theme is that global corporations are just too big, too powerful, and in too many countries to be subjected to judgments of state law when they launch false feel-good public relations campaigns in response to criticism or when they spew lies about cigarettes, global warming, sweatshops, the rainforest, or anything else.

In the Supreme Court brief, the global corporations argued that Nike could not possibly guarantee “truth” (the brief itself uses quotation marks around the word
truth
) when Nike has “736 facilities located in the 51 countries in which 500,000 workers are used by its subcontractors to manufacture its products.”
⁹
In other words, Nike is too big, too global, and in too many countries exploiting cheap labor to possibly operate without potentially getting sued by someone for fraudulent statements. And we can’t have that, can we?

Why can’t we have that? If that really is a problem, it is an economic problem for Nike and its shareholders, not a constitutional problem for Americans. The slippery slope argument that the Court and the Constitution must step in to make sure that Nike does not find itself in court having to defend its false statements implies that Nike not only has a “right” to its corporate charter and privileges but also has a corporate “right” to operate in fifty-one countries and outsource jobs to impoverished areas of the world and the “right” to wage PR campaigns if people question the human impact of Nike’s decisions. Each of those, however, is a corporate policy preference, not a right.

Nike’s arguments state a business problem, not a constitutional problem. Nike could solve its business problem in a number of ways without fabricating constitutional rights to block the law. It could make its shoes in the United States. It could be smaller. It could price into its shoes the cost of defending itself from global human rights campaigns about its overseas sweatshops. It could ask the legislature to create an exception in the law for global corporations operating overseas sweatshops. Whether these options are unattractive or might raise the price of Nike sneakers or, God forbid, lower the share price has nothing to do with the Constitution. There is no constitutional right to cheap overseas labor and false marketing campaigns to make Americans feel better about
lost jobs, human rights abuses, and immoral conduct. In the end, the Supreme Court declined to hear the Nike case, but we know how this story ends in
Citizens United.

Corporate crime and allowing corporate power to slip out of control of the people have consequences. WellCare Health stole millions of dollars from a children’s health program in Florida. One of BP’s many crimes killed fifteen people in a Texas refinery. Massey Energy (now owned by Alpha Natural Resources) committed thousands of violations and killed twenty-nine people in a mine explosion in 2010. Volvo supported Saddam Hussein’s regime in Iraq by committing crimes to get heavy trucks and equipment around a United Nations sanction, and Credit Suisse criminally moved money around to evade American economic sanctions against dangerous regimes in the world.

Unchecked corporate power poisons food, water, and air, and people get sick and die. Workplaces are more dangerous, and people die. Markets are corrupted, and people lose their savings and jobs are wiped out. Taxes for most people are higher because corporations and the rich do not pay their share and hide money “offshore,” abetted by criminal international bank corporations.

The Court’s
Citizens United
decision failed to consider whether the problem of serial corporate crime and the reality of global corporate power exposed the fallacy of excess metaphorical thinking when it comes to corporations. Had the Court considered why Congress might have distinguished between corporations and people in the Bipartisan Campaign Reform Act and the 1907 law banning corporate money in politics (see
page 11
), the Court would have inquired into how corporations might be different from people.

In doing so, the Court might have connected “speech” to “virtue” as essentially human characteristics and recognized the relationship of both to a self-governing republic of free people. This virtue, as Jefferson and the other Founders knew, is not only “love of the laws and of our country” but also a love that “requires a constant preference of public to private interest.”
¹⁰

Corporations are incapable of virtue, not because they are bad but because they are mere tools. A hammer has no virtue either. And we would not call a hammer a “speaker.” We could design a better tool, but for most of the large public corporations, the risk of crime and fraud runs high because we do not sufficiently conceive of the corporation as a tool to aid the progress of the many rather than as an enrichment machine for a few in control of the corporation.
¹¹

Sadly, the failure to control corporate power corrodes and destroys virtue itself in too many American people. Think of those CEOs who reaped millions to destroy jobs or the public servants who sell out the country for corporate dollars or position. Think of the self-effacing, kind Lewis Powell described by Sandra Day O’Connor and all those decent, patriotic, kind, hardworking people who went off to work each day on behalf of the long cigarette conspiracy to addict children and kill people. I do not intend sarcasm here. Decent, kind, patriotic, hardworking people
do
go off to work every day in corporations that create terrible consequences for the world, when allowed to do so. When we fail to keep corporations in their proper economic place and to protect our political space, we corrupt virtue in all of us.

The crimes of corporations, from trading with the enemy to stealing from children, as well as the political corruption caused by corporate power, happen because people make decisions on behalf of the corporation. Yet it is not because those people are
evil. It is because government, crippled by corporate “rights” and corporate power, has abandoned its duty to control the powerful tool in which those people find themselves working. When we, the people, cannot control corporations because of fabricated constitutional rights and dangerous imbalances in lobbying and election spending, people making corporate decisions are rewarded for
not
exercising virtue and punished for exercising it. Corporate decisions then overwhelmingly favor the private, not the public, interest, and the corporate, not the American, interest.

As Thomas Jefferson wrote in his commonplace book more than two centuries ago, “everything … depends on establishing this love in a republic.” The real people of America must overturn
Citizens United
and corporate rights and must assert the will of the people over the unchecked power of corporations. As in the past, we have the means and, I believe, the virtue to do exactly that.

Not long after the BP disaster in the Gulf of Mexico exposed how deeply and corruptly the oil corporations had insinuated themselves into our government, Senator Sheldon Whitehouse, former attorney general of Rhode Island and a former United States attorney, took to the Senate floor. He issued a warning and plea to the American people:

Have we now learned what price must be paid when the stealthy tentacles of corporate influence are allowed to reach into and capture our agencies of government?

I pray, let us have learned this; let us have learned that lesson. I sincerely pray we have learned our lesson, and that this will never happen again. But let’s not just pray.

In this troubled world God works through our human hands; grows a more perfect union through our human hearts; creates his beloved community through our human thoughts and ideas. So it is not enough to pray. We must act.

We must act in defense of the integrity of this great government of ours, which has brought such light to the world, such freedom and equality to our country. We cannot allow this government—that is a model around the world, that inspires people to risk their lives and fortunes to come to our shores—we cannot allow any element of this government to become the tool of corporate power, the avenue of corporate influence, the puppet of corporate tentacles
.
¹²

We are people. We love. We pray. We act. We are all on the same side. So let’s get to work.

This is a moment of high danger for democracy so we must act quickly to spell out in the Constitution what the people have always understood: that corporations do not enjoy the political and free speech rights that belong to the people of the United States.

—Maryland Senator Jamie Raskin
¹

Great corporations exist only because they are created and safeguarded by our institutions; and it is therefore our right and duty to see that they work in harmony with these institutions.

—President Theodore Roosevelt
²

As President Theodore Roosevelt put it, we have the right and
the duty
to control corporate power to protect our institutions of self-government. So what can those who wish to fulfill that duty do now? Three key steps will lead the way back to government of the people, not of the corporations.

First and most important, we need to work for the Twenty-Eighth Amendment to the Constitution, a People’s Rights Amendment, to reverse
Citizens United
and corporate constitutional rights. For thirty years, we have been in a power struggle over the Constitution and Bill of Rights, but only one side—the side of organized corporate power—has shown up to fight. It is time for the people to take the field. Without ending the corporate rights veto over our laws and without reforming the corporate domination of our government, elections will become more meaningless. Representative democracy will become a fading memory.

As the second step, we must insist, rather than beg, that corporations actually serve the public interest. Corporate law should ensure that corporations do not merely take benefits
from
the public; they must they also fulfill duties
to
the public. Reform of corporate law and enforcement of existing laws that have been ignored for too long, such as corporate charter accountability laws in virtually every state, will level the playing field on which responsible and irresponsible corporations alike now compete. No longer should socially responsible businesses be considered as “alternative” or “optional” approaches to doing business. Corporate law should no longer give advantages to socially irresponsible corporations. Unreformed nineteenth-century corporate thinking and the unfair, undemocratic dominance of Delaware corporate law no longer serve the nation or the world.

Third, we need to make election and lobbying laws that punish, rather than reward, corrupt crony capitalism and bribe-based politics. If we intend to control rather than be controlled by corporate power, we must reform how we elect our representatives and clean up the swamp of corporate bribery and corruption of government that we now quaintly call “lobbying.” For elections and lawmaking—two of the most important public responsibility of citizens in a republic—we now rely on a sliver of rich people
and global corporations to fund campaigns and elections. They don’t do it for nothing. Those who pay for campaigns and elections are those who get the most representation; we should not be surprised to find that corporations and the rich are now very well represented and everyone else is not. However, if all of us pay for campaigns and elections through public funding, all the people will be better represented in Congress and the state legislatures. And we will know which politicians are willing to rely on the people for election or reelection and which are cutting deals with the big funders.

While the amendment campaign is most important, these three steps are not mutually exclusive. They do not require a particular order of accomplishment. Indeed, pushing all of the steps forward at the same time will have a synergistic effect. Each step helps address the fundamental problem of corporate dominance over our government and the American people.

So pick up wherever you find you can do the most good, and join in this work. We will win. And we will leave a chance to the next generations of Americans and free people around the globe. Then they too can continue the work to ensure that government of the people “does not perish from the earth.”

In mounting a constitutional amendment campaign to push back corporate power and to protect freedom and democracy, we must consider the people who will come after us. They will inherit the world we make, for better or worse. But let’s not forget, too, to consider the people who came
before
us.

Much that is right about our democracy, and much that we now take for granted, exists only because Americans before us did the seemingly impossible. They amended the Constitution; they insisted on the people’s having the “last word” over the Court
and other branches of government. With successful amendment campaigns, they guaranteed equal voting and participation for all races; they insisted on voting rights for women, after the Supreme Court ruled that the Constitution provided no such thing; they demanded that all people eighteen and older have the right to vote after the Supreme Court ruled otherwise; they insisted that equality in voting cannot exist if poll tax barriers are placed in front of those with less money, property, or power; they insisted on election of United States senators by the people rather than by a corrupt appointment process; they rejected the Supreme Court’s ruling that a fair federal income tax violated the Constitution; they made Congress accountable to the people when Congress raised its pay; they insisted that the states were not subservient to the federal judiciary when bondholders wanted to drag states into federal court. None of this happened without successful amendment campaigns by the American people.