Authors: Jeffrey D. Clements,Bill Moyers
Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (6 page)
Safe Drinking Water Act
These 1970s reforms were long overdue. For a time, they worked extraordinarily well and made a profound difference in the quality of life of the vast majority of Americans. No longer could dumping untreated sewage and toxic waste in our waters be considered a standard business practice; no longer could corporations walk away from hazardous waste and chemical sites; more wilderness areas preserved more of our birthright and that of future Americans; new laws rejected the industry view that we just had to live with the discharge of brain- and organ-damaging lead from millions of cars and the spread of lead paint in every building in the land; access to clean, safe water was assured for far more Americans; and so much more.
The market did not do this. We did this by acting as citizens in a republic.
As with every time in American history, of course, the 1970s were racked with crisis and challenge. Yet the American people worked the levers of democracy, and the government responded. It actually seemed as if some connection existed between those levers—voting, organizing, debating, petitioning, marching—and our government’s conduct.
Environmental protection was not all. We often remember the strife and problems of the late 1960s and early 1970s but think of the progress in race and gender equality; ending the Vietnam War; real wage growth for average Americans; global leadership in trade and commerce and manufacturing; steady, comprehensive, creative, and effective resistance across the globe to dictatorial communism; public accountability when the president broke the law; more open government and better congressional oversight; manageable debt and budgets in Washington and the states; employee rights and safety; and a constitutional amendment to enfranchise millions of Americans from eighteen
to twenty years old. The people demanded change; our government delivered change.
The biggest corporations on the planet, however, did not celebrate the responsive democracy that followed Earth Day. Instead, they organized to fund a sustained program to take political power and rights for themselves and away from average Americans. With
Citizens United,
we may see the end game of this project, but it has been years in the making.
1971: Lewis Powell and the
“Activist-Minded Supreme Court”
In 1971, Lewis Powell, a mild-mannered, courtly, and shrewd corporate lawyer in Richmond, Virginia, soon to be appointed to the United States Supreme Court, wrote a memorandum to his client, the United States Chamber of Commerce. He outlined a critique and a plan that changed America.
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Lewis Powell, like the
Citizens United
dissenter Justice John Paul Stevens, was a decorated World War II veteran who returned to his hometown to build a most respected corporate law practice. By all accounts, Powell was a gentleman—reserved, polite, and gracious—and a distinguished lawyer and public servant. Commentators and law professors cite Powell’s “qualities of temperament and character” and his “modest” and “restrained” approach to judging.
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At his funeral in 1998, Sandra Day O’Connor, who had joined the Supreme Court in 1987, said, “For those who seek a model of human kindness, decency, exemplary behavior, and integrity, there will never be a better man.”
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Even the rare critic will cite Lewis Powell’s decency and kindness.
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Much about these accounts must be true, but none tells the whole story of Lewis Powell. All of them, and even the principal Powell biography, omit the details of how he used his gifts to
advance a radical corporate agenda.
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It is impossible to square this corporatist part of Powell’s life and legacy with any conclusion of “modest” or “restrained” judging.
Powell titled his 1971 memo to the Chamber of Commerce “Attack on American Free Enterprise System.” He explained, “No thoughtful person can question that the American economic system is under broad attack.” In response, corporations must organize and fund a drive to achieve political power through “united action.” Powell emphasized the need for a sustained, multiyear corporate campaign to use an “activist-minded Supreme Court” to shape “social, economic and political change” to the advantage of corporations.
Powell continued:
But independent and uncoordinated activity by individual corporations, as important as this is, will not be sufficient. Strength lies in organization, in careful long-range planning and implementation, in consistency of action over an indefinite period of years, in the scale of financing available only through joint effort, and in the political power available only through united action and national organizations.
The roots of
Citizens United
lie in Powell’s 1971 strategy to use “activist” Supreme Court judges to create corporate rights. “Under our constitutional system,” Powell told the U.S. Chamber of Commerce, “especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”
Powell’s call for a corporate rights campaign should not be misunderstood as a “conservative” or “moderate” reaction to the excesses of “liberals” or “big government.” Rather, to understand the perspective of Powell and his allies is to understand the difference between a conservative and a corporatist.
Powell and the Tobacco
Corporations Show the Way
By the time of his 1971 memorandum, Lewis Powell was a director of more than a dozen international corporations, including Philip Morris Inc., a global manufacturer and seller of cigarettes. Powell joined Philip Morris as a director in 1964, when the United States surgeon general released the most devastating and comprehensive report to date about the grave dangers of smoking. He remained a director of the cigarette company until his appointment to the Supreme Court in 1971. Powell also advised the Tobacco Institute, the cigarette lobby that finally was exposed and stripped of its corporate charter in the 1990s after decades of using phony science and false statements to create a fraudulent “debate” about smoking and health.
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The story of the cigarette corporations and their response to public efforts to address addiction, smoking, and health is a big piece of the larger story of how corporate rights took such significant pieces of the Constitution and American democracy. The ideas expressed by Powell in his 1971 memorandum to the Chamber of Commerce came out of his personal involvement in the aggressive resistance of the cigarette corporations to efforts to address the devastating social and public costs of its lethal products. As a director and an executive committee member of Philip Morris, Powell shared responsibility for the fraudulent attack on the conclusions of scientists and the surgeon general by the cigarette industry and for its false insistence for years that “no proof” showed cigarettes to be unhealthy.