Unstoppable (15 page)

Clearly, how to defend our children from these inroads could be a unifying mission. There is already some existing converging
activity from Foundations Family Counseling, Commercial Alert, Focus on the Family, and
Parenting.com
that needs much higher visibility and resources, as well as more aggressive convergence.

17. Get rid of corporate personhood.

I already cited an article by former high-ranking Republican conservative and Wyoming senator Alan Simpson calling for campaign finance reform and criticizing the Supreme Court's
Citizens United
decision, which allowed the opening of unlimited spigots for the contribution of corporate cash to political campaigns. He especially excoriated the court's Republican majority for “asserting a remarkable right of corporate personhood that I have yet to find in the Constitution.”

The personhood idea originated with the scribe who reported the 1886 Supreme Court decision in the
Santa Clara County v. Southern Pacific Railroad Company
case and put in the head notes on the decision something the justices expressly
did not decide
. He erroneously or maliciously wrote—he was a former railroad employee—that the railroad in the case is considered a “person” for purposes of the Fourteenth Amendment. After that, it was off to the races, with one Supreme Court case after another using that misconstruction to assert the existence of other “person” rights for that artificial entity, chartered by the state, called a “corporation.” However, the conservatives' conservative jurist of our generation, Chief Justice William Rehnquist, was not fully persuaded of the validity of these claims. Rehnquist's dissent from Associate Justice Lewis Powell's majority opinion in the Pacific Gas and Electric case (1986) still stands as a bright red line drawn to block the granting of full First Amendment powers for corporations that broke the emerging consumer checkoff movement. The California state regulators had allowed a consumer advocacy organization to place inserts in utility billing envelopes, at no cost to the utility, inviting residential ratepayers to join a
dues-paying consumer advocacy group on utility issues—economic or environmental. The majority Supreme Court opinion saw this as violating the utility's First Amendment rights to remain silent and not have to rebut declarations made in the insert.

In stark contrast to his Republican colleague on the court, Lewis Powell, an arch-corporatist advocate of businesses' constitutional rights, the dissenting Justice Rehnquist believed giving corporations free speech rights that assume a conscience is to “confuse metaphor with reality,” adding that “the 14th Amendment does not require a state to endow a business corporation with the power of political speech.”

As Jeffrey D. Clements writes in his fine book
Corporations Are Not People
, Rehnquist “grounded his dissents in the fundamental proposition that our Bill of Rights sets out the rights of
human beings
and that corporations are not people. For years, Rehnquist maintained this principled conservative argument, warning over and over again that such corporate rights have no place in our republican form of government.”
²⁶
Before
Citizens United
overturned previous legal precedents, Rehnquist's views had won over a majority of his fellow justices. This position appeared especially in the
Austin v. Michigan Chamber of Commerce
case, in which the court upheld a Michigan law regulating corporate spending in elections.

Chief Justice William Rehnquist remains, after his passing in 2005, a far more authoritative judicial and philosophical figure in conservative circles than does Powell, a corporate lawyer (for the tobacco companies and other giant companies) later turned corporatist jurist.

Although getting rid of the legal validity of corporate personhood has been a prime object for reform in liberal circles, thanks in no small part to the prodigious writing, lecturing, and organizing efforts of the late Richard Grossman, it is only beginning to take hold in conservative circles, spurred toward this position by their libertarian allies. The Transpartisan Alliance, led by libertarian
Michael Ostrolenk, is networking with those of all possible political persuasions to, in Clements's words, “restrain the government-created and subsidized transnational corporations that wield such power over American lives and communities.”
²⁷

The coming battle over corporate personhood, further provoked by the recent Supreme Court decision in
Citizens United
and its subsequent anti–states' rights decision in
American Tradition Partnership, Inc. v. Steve Bullock, Attorney General of Montana
, which overruled a venerable Montana law prohibiting corporate money in elections, is no internal arcane dispute among lawyers. Without the privileges and immunities of corporate personhood, companies can be subordinated to the priorities and supremacy of “we the people,” that is, the sovereignty of the people so clearly enunciated in the words of the Constitution.

The radical judicial legislation that has been promoting the idea of corporate personhood since 1886 flies in the face of the bare fact that there is absolutely no mention of the word “corporation,” “company,” or “artificial entity” in the text of the Constitution as amended. Overturning the decisions based on this illegitimate idea of corporate personhood would mean that people, if they chose, could legislatively and judicially redress much of the imbalance of power between them and corporations. If corporations cannot claim the same constitutional rights as natural persons, the people will be able to better control, for instance, harmful and violent commercial marketing to children as well as put an end to the ways companies are taxed, prosecuted, subsidized, coddled, and allowed to prevent people from banding together. This is what I believe Russell Kirk meant when he listed “prudent restraints upon power”
²⁸
as a conservative principle and what historical liberalism meant by restraining the state from so empowering large corporations. The way these points, from opposite ends of the political spectrum, echo each other indicates that on this issue there is a convergence waiting to mature.

18. Control more of the public commons we already own.

This is a basic principle of capitalism, which has been restricted at times for good reasons, as when it is applied by a government's eminent domain to take lands needed for public highways, bridges, and other traditional public works. But we've already seen how eminent domain has been perverted to take private property for corporate, not government, uses.

For generations corporations have also been overthrowing traditional notions of property rights in cases in which the property is either held in trust for many or collectively owned by all. I am referring, of course, to
the commons
—that great reservoir of public wealth known as the public lands, the public airwaves, public works, public investments, and recently the widening commons of the Internet/cyberspace and the oceans. Through astonishing giveaways, as has happened with the people's hard-rock minerals (gold, silver, etc.) on federal lands, or through bargain-basement leases, giving companies the right to extract other valuable natural resources, corporations get control and profitably use what we own. Also, bear in mind that we are the landlords of the public airwaves; the broadcasters are the tenants. Yet, they pay no rent, get free usage twenty-four hours a day, and unilaterally decide who gets on and who is excluded. Not fair! Major modern industries were created or hugely nurtured by taxpayer-paid research and development monies. These include the aerospace, biotech, nanotech, computer and Internet, pharmaceutical, medical device, containerization, and agribusiness industries.

Controlling what we own would involve charging market prices, reserving some of the owned assets for direct public use (such as time slots for an audience-controlled TV and radio network), and using public investments or purchasing as leverage to obtain safer products, workplaces, and environments or to help further national missions benefiting all.

This is a thorny topic, which will split the conservative/libertarian cohort deeply along a whole range of differences. Some will say the government should sell off the public lands and airwaves, get out of industry developing, and just corporatize public works such as highways. Others would argue that government should run these taxpayer assets “as a business,” as long as they hold them in trust for the public.

On the liberal/progressive side, some would say that the government should take greater control, having, for example, an equivalent to the British Broadcasting Corporation and Canadian Broadcasting Corporation on radio and television, or having a trust fund drawn from royalties earned from mining public lands, which would dispense regular checks to each American, the way the oil trust fund does in Alaska for every Alaskan. David Bollier and his colleagues in the spreading commons movement (
http://onthecommons.org
) are thinking through many proposals for more conserving, efficient, and equitable management of these public resources. Notably, the largest permanent marine reserve, off the coast of Hawaii, was created at the initiative of President George W. Bush.

Although we've seen that the two sides do not see eye to eye on this topic, there are still opportunities here, there, and everywhere to reach convergence on particular issues, while avoiding a massive, omnibus ideological showdown. Both Lou Dobbs and Bill O'Reilly of Fox News recognized that the people own the oil and gas discovered on public lands, and Dobbs proposed a national version of the Alaska petroleum fund that gives annual dividends to every citizen.

19. Get tough on corporate crime.

This demand gets the same support, more or less, from the public as the cry to get tough on street crime, especially when the preventable mass casualties stemming from corporate misbehavior is in the mix. What the public see day after day on the corporate-owned
news stations is street crime, not crime in the suites. The rule of law, as applicable to both street-level and boardroom-level crime, is a central theme from Adam Smith to Edmund Burke to Friedrich Hayek, all the way to present-day conservative principles.

That this is not clear to many people who are interested in conservative law and order discussions, which focus solely on street-level lawbreaking, is due to the corporatist agenda, which occupies the attention of their affinity think tanks and business-allied opinion makers. The corporatists detour these thinkers by steering their funding trajectories away from any concern with corporate wrongdoing; they absorb them by shifting their focus to abuses committed by trial lawyers or the “enemies of capitalism”; they encourage them to blame the state as the cause of just about everything bad in the world. For these thinkers, there are always steady rewards in terms of contributions, lecture fees, grants, and other incentives for such narrowing of focus.

On top of this, bar associations and the legal profession defend their corporate clients accused of or investigated for possible criminal activities. Meanwhile, the very definition of corporate crime is being blurred by lobbying against criminal penalties in regulatory statutes and shifting any sporadic enforcement into the more lenient arena of civil violations. A fast-growing settlement procedure by the Justice Department known as “deferred prosecution” permits the culpable company to avoid admitting guilt and is excused by the very small enforcement budgets in the Justice Department, which leave officials privately saying they can find no other way to begin to keep up with the corporate crime wave. As reported by the
Corporate Crime Reporter
, they claim not to have the lawyers, prosecutors, and infrastructure to keep tabs on the well-defended companies, who use shareholder assets to pay their expenses. Lacking knowledge of this background, people from all persuasions everywhere cannot see how it is that no major crooks involved in Wall Street's 2008 crash have been prosecuted and sent to jail.

Once some conservative officeholders clear their conscience of unwarranted corporatist inhibitions, and some liberal officeholders stop flirting for the same corporate campaign largesse given to their counterparts, their senses of right and wrong can converge. It will be none too soon, because then the enormous toll our country is paying as a result of corporate toxic harms on people's health and frauds on consumers, investors, pensioners, and the government (e.g., Medicare), in addition to the destabilizing Wall Street and giant bank shenanigans, will be addressed. This liberation of conscience by enough politicians is not likely to occur without the prompting of self-organized communities around the country, who want this marauding at their expense to stop—never mind political labels.

20. Empower the owner-shareholders of public corporations.

Here is the demand that captures, in essence, the direct clash between the corporatists at their pinnacle and the intricately powerless capitalist owners who want to have some control of the company they own shares in, if only to receive an adequate dividend and honest accounting. This desire is quickened when they see their shares fall as the company is mismanaged or strip-mined by vastly overpaid executives, compliments of their well-fed, rubber-stamping board of directors. Here is openly exposed the myth and the farce of the “people's capitalism,” written about ad infinitum in the business press and in thoughtful books by authors such as Robert Monks, Nomi Prins, and Jeff Gates. The earlier work by the brilliant team of Adolf Berle and Gardiner Means back in the 1930s showed, with historic documentation, the dire consequences of the separation of formal ownership from executive control within large corporations.