Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (30 page)

1
. Bill Moyers, remarks at the fortieth anniversary of Common Cause, Oct. 6, 2010,
http://www.economicpolicyresearch.org/the-financial-crisis/164-bill-moyers-jeff-madrick-and-lbj.html
(accessed September 4, 2011).

1
. Bruce Frohnen, ed.
The American Republic: Primary Sources
(Indianapolis: Liberty Fund, 2002),
http://oll.libertyfund.org/title/669/206314
(accessed April 6, 2011). This theory of how societies fail has been extended beyond free democratic societies. The great historian Arnold Toynbee is said to have maintained that “civilizations die by suicide, not murder,” perhaps drawing on his theme in
From Civilization on Trial
(Oxford, England: Oxford University Press, 1948) concerning the decline of the Greco-Roman world. Echoing Toynbee more recently, the American scientist Jared Diamond titled his classic inquiry into the connection between unbalanced ecological and resource exploitation and the fall of societies
Collapse: How Societies Choose to Fail or Succeed
(New York: Penguin, 2005).

2
. According to the 2009
Statistical Abstract of the United States,
after-tax corporate profits in 2005 were almost $1 trillion. During the 2008 election cycle,
Fortune
100 companies—the hundred largest corporations—alone had combined revenues of $13.1 trillion and profits of $605 billion. In contrast, during the same 2008 cycle, all political parties combined spent $1.5 billion and all of the federal political action committees spent $1.2 billion.

3
. Dale Robertson, quoted in “The SCOTUS ‘Corporate Cash for Candidates’ Decision: Left, Right, and Tea,”
Reid Report,
January 10, 2010,
http://blog.reidreport.com/2010/01/supco-campaign-cash-decision-reactions/
(accessed July 21, 2011).

4
. For a thorough examination of the creation and impact of the “corporate speech movement,” see Robert L. Kerr,
The Corporate Free Speech Movement: Cognitive Feudalism and the Endangered Marketplace of Ideas
(New York: LFB, 2008). Kerr documents the corporate-driven transition from democracy to what he calls cognitive feudalism and, picking up on the film
It’s a Wonderful Life,
“from Bedford Falls to Pottersville.”

5
. James Madison, “To J. K. Paulding,” March 10, 1827, in Gaillard Hunt, ed.,
The Writings of James Madison
(New York: Putnam, 1900), Vol. 9.

6
. Thomas Jefferson, “To George Logan,” November 12, 1816, in
The Works of Thomas Jefferson,
(New York: Putnam, 1904-05), Vol. 12,
http://oll.libertyfund.org/title/808/88352
(accessed July 21, 2011).

7
. Andrew Jackson, “Fifth Annual Message to Congress (December 3, 1833),” Miller Center,
http://millercenter.org/scripps/archive/speeches/detail/3640
(accessed July 21, 2011).

8
. Martin Van Buren, “First Annual Message to Congress (December 5, 1837),” Miller Center,
http://millercenter.org/scripps/archive/speeches/detail/3589
(accessed July 21, 2011).

9
. The background and text of the Powell memorandum, titled “Attack on American Free Enterprise System” and dated August 23, 1971, can be found at
http://www.reclaimdemocracy.org/corporate_accountability/powell_memo_lewis.html
(accessed June 22, 2011). The Powell memo and its contribution to the “conservative” movement have been widely described. One of the most thorough and thoughtful examinations of the memorandum and its implications is that of Jerry Landay in “The Powell Manifesto: How a Prominent Lawyer’s Attack Memo Changed America,” August 20, 2002,
Media Transparency,
http://old.mediatransparency.org/story.php?storyID=21
(accessed June 8, 2011). William K. Black, associate professor of law and economics at the University of Missouri-Kansas City, has examined the Powell memo and Powell’s roots in the tobacco industry. See “My Class, Right or Wrong: The Powell Memorandum’s 40th Anniversary,”
New Economic Perspectives,
April 25, 2011,
http://neweconomicperspectives.blogspot.com/2011/04/my-class-right-or-wrong-powell.html
(accessed June 8, 2011).

10
. See, for example, Linda Greenhouse, “The Legacy of Lewis F. Powell, Jr.,”
New York Times,
December 4, 2002,
http://www.nytimes.com/2002/12/04/politics/04SCOT.html
(accessed June 22, 2011); Gerald Gunther, “Lewis F. Powell, Jr.: A Fine Judge, a Remarkable Human Being,”
Columbia Law Review,
April 1999; and Gerald Gunther, “A Tribute to Justice Lewis F. Powell, Jr.,” Harvard Law Review, December 1987.

11
. Sandra Day O’Connor,
The Majesty of the Law: Reflections of a Supreme Court Justice
(New York: Random House, 2003), p. 150.

12
. A possible exception came from John Conyers, Jr., and the Congressional Black Caucus, as well as from the Old Dominion Bar Association in Virginia. At Powell’s confirmation hearings in November 1971, the president of the Old Dominion Bar Association asserted that Powell “for much of his life waged war on the Constitution,” referring to his role as a member of the Richmond, Virginia school board during the years of the state’s resistance to the
Brown
v.
Board of Education
decision. Conyers testified against Powell’s nomination, citing Powell’s professional and personal associations with racism. These included alleged discrimination at his law firm, at Philip Morris, and in Powell’s private clubs, which banned African Americans (one allowed members to bring “colored servants with them to the club only if they are dressed in appropriate attire”). Presciently, Conyers expressed concern about Powell’s “close association with a variety of corporate giants.” U.S. Senate, Committee on the Judiciary, “Hearings on the Nominations of William H. Rehnquist, of Arizona, and Lewis F. Powell, Jr., of Virginia, to be Associate Justices of the Supreme Court of the United States,” November 3–10, 1971,
http://www.gpoaccess.gov/congress/senate/judiciary/sh92-69-267/browse.html
(accessed June 21, 2011).

13
. See notes 10 and 11.

14
. Judge Gladys Kessler, the federal judge who oversaw the 2006 racketeering trial of the cigarette corporations, thoroughly documented the role of each corporate participant, including the Tobacco Institute, in the decades-long illegal cigarette corporation RICO conspiracy. Her conclusions, affirmed by the United States Court of Appeals for the District of Columbia, are set out in her final opinion of more than sixteen hundred pages in
United States
v.
Philip Morris USA, Inc., et. al.,
Civil Action 99-2496 (GK),
August 17, 2006,
http://www.justice.gov/civil/cases/tobacco2/amended%20opinion.pdf
(accessed June 22, 2011).

15
. Ibid.

16
.
Laurus & Brother Company
v.
Federal Communications Commission,
447 F.2d 876 (1971).

17
. The columnist Jack Anderson reported on the Powell memo in September 1972; see Landay, “Powell Manifesto.” In a 1979 amicus brief filed in connection with the case of
Central Hudson Gas & Electric Corp.
v.
Public Service Commission of New York,
447 U.S. 557 (1980), the National Chamber Litigation Center, a corporate litigation project launched in response to the Powell memo, slyly quoted a brief section of Powell’s memo to suggest that corporations recognized a larger public responsibility. The brief stated:

Indeed, one member of this Court has stated the obligation of management thusly:

The day is long past when the chief executive officer of a major corporation discharges his responsibility by maintaining a satisfactory growth of profits, with due regard to the corporation’s public and social responsibilities. If our system is to survive, top management must be equally concerned with protecting and preserving the [private enterprise] system itself. This involves far more than an increased emphasis on “public relations” or “governmental affairs”—two areas in which corporations long have invested substantial sums. [Powell, “Attack,” p. 3]

18
. See
First National Bank of Boston
v.
Bellotti,
435 U.S. 765 (1978);
FEC
v.
Wisconsin Right to Life,
551 U.S. 449 (2007) (issue advocacy advertisements of the nonprofit corporation BCRA held to violate First Amendment);
Thompson
v.
Western States Medical Center,
535 U.S. 357 (2002) (federal restriction on advertising of compounded drugs invalidated);
Lorillard
v.
Reilly,
533 U.S. 525 (2001) (Massachusetts regulations of tobacco advertising targeting children invalidated);
Greater New Orleans Broadcasting Association
v.
United States,
527 U.S. 173 (1999) (federal restriction on advertising of gambling and casinos held unconstitutional);
44 LiquorMart
v.
Rhode Island,
517 U.S. 484 (1996) (Rhode Island law restricting alcohol price advertising invalidated);
Rubin
v.
Coors Brewing Co.,
514 U.S. 476 (1995) (federal restriction on advertising alcohol level in beer invalidated);
City of Cincinnati
v.
Discovery Network,
507 U.S. 410 (1993) (municipal application of handbill restriction to ban news racks for advertising circulars on public property held unconstitutional);
Pacific Gas & Electric Co.
v.
Public Utilities Commission of California,
475 U.S. 1 (1986) (invalidating California rule that utility corporations must make bill envelopes, which are property of ratepayers, available for other points of view besides that of the corporation);
Central Hudson Gas & Electric Corp.
v.
Public Service Commission of New York,
447 U.S. 557 (1980) (New York rule restricting advertising that promotes energy consumption invalidated);
Bellsouth Telecomm.
v.
Farris,
542 F.3d 499 (6th Cir. 2008) (Kentucky may not prohibit corporations from misleadingly including a “tax” on customer bills where consumers paid no tax because Kentucky law required that the corporation pay a fee from what would otherwise be shareholder profits);
Allstate Insurance Co.
v.
Abbott,
495 F.3d 151 (5th Cir. 2007) (Texas law regulating advertising of auto body shops tied to auto insurers invalidated);
This That & the Other Gift & Tobacco
v.
Cobb County, Georgia,
439 F.3d 1275 (11th Cir. 2006) (Georgia ban on advertisements of sexual devices invalidated);
Passions Video
v.
Nixon,
458 F.3d 887 (8th Cir. 2006) (Missouri statute restricting advertisements of sexually explicit businesses invalidated);
Bad Frog Brewery
v.
New York State Liquor Authority,
134 F.3d 87 (2d Cir. 1998) (New York regulation barring beer bottle label with gesture described by the Court as “acknowledged by Bad Frog to convey, among other things, the message ‘f#;! you’” held unconstitutional);
International Dairy Foods Association
v.
Amestoy,
92 F.3d 67 (2d Cir. 1996) (Vermont law requiring disclosure on label of dairy products containing milk from cows treated
with bovine growth hormones invalidated);
New York State Association of Realtors
v.
Shaffer,
27 F.3d 834 (2d Cir. 1994) (invalidating New York law authorizing the secretary of state to declare “nonsolicitation” zones for real estate brokers);
Sambo’s Restaurants
v.
City of Ann Arbor,
663 F.2d 686 (6th Cir. 1981) (First Amendment allows corporation to break agreement with city and use name found to be deeply offensive and carry prejudicial meaning to African Americans);
John Donnelly & Sons
v.
Campbell,
639 F.2d 6 (1st Cir. 1980) (invalidating Maine law restricting billboard pollution, even though law allowed—and paid for—commercial signs put up by state of uniform size at exits and visitor centers);
Washington Legal Foundation
v.
Friedman,
13 F. Supp. 2d 51 (D.D.C. 1998) (invalidating federal law regulating drug manufacturers’ use of journal reprints and drug corporation-sponsored educational seminars to promote off-label uses for prescription drugs); and
Equifax Services
v.
Cohen,
420 A.2d. 189 (Me. 1980) (invalidating portions of Maine credit reporting statute as First Amendment violation). Many more such cases may be found in the state and federal reports.

19
. See
First National Bank of Boston
v.
Bellotti,
435 U.S. 765, 826 and n. 6 (1978) (Rehnquist, dissenting) (“The free flow of information is in no way diminished by the Commonwealth’s decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity…. The Fourteenth Amendment does not require a State to endow a business corporation with the power of political speech.”);
Central Hudson Gas & Electric Corp.
v.
Public Service Commission of New York,
447 U.S. 557 (1980) (Rehnquist, dissenting) (“I disagree with the Court’s conclusion that the speech of a state-created monopoly, which is the subject of a comprehensive regulatory scheme, is entitled to protection under the First Amendment.”); and
Pacific Gas & Electric Co.
v.
Public Utilities Commission of California,
475 U.S. 1, 26, 24 (1986) (Rehnquist, dissenting) (“Nor do I believe that negative free speech rights, applicable to individuals and perhaps the print media, should be extended to corporations generally…. PG&E is not an individual or a newspaper publisher; it is a regulated utility. The insistence on treating identically for constitutional purposes entities that are demonstrably different is as great a jurisprudential sin as treating differently those entities which are the same.”). See also
Virginia Board of Pharmacy
v.
Virginia Citizens Consumer Council,
425 U.S. 748, 784 (1976) (Rehnquist, dissenting) (“The Court speaks of the importance in a ‘predominantly free enterprise economy’ of intelligent and well-informed decisions as to allocation of resources…. While there is again much to be said for the Court’s observation as a matter of desirable public policy, there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession.”).