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Corporations Are Not People

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The Supreme Court’s Citizens United decision marked a culminating victory for the bizarre doctrine that corporations are people with free speech and other rights. Now, Americans cannot stop corporations from spending billions of dollars to dominate elections and keep our elected representatives on a tight leash. Jeffrey Clements reveals the far-reaching effects of this strange and destructive idea, which flies in the face of not only all common sense but most of American legal history as well. Most importantly, he offers solutions—including a constitutional amendment to reverse Citizens United—and tools to help readers join a grassroots drive to implement them. Ending corporate control of our Constitution and government is not about a triumph of one political ideology over another—it’s about restoring the republican principles of American democracy.

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1 American Democracy Works, and Corporations Fight Back

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In 1838, a quarter-century before he became the nation’s sixteenth president, a twenty-nine-year-old Abraham Lincoln stepped up to speak at the Young Men’s Lyceum in Springfield, Illinois. He spoke about what was to become the cause of his life: the preservation of that great American contribution to the human story, government of, for, and by the people. He insisted that the success or failure of the American experiment was up to us. “If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”1

Lincoln’s generation of Americans, and every generation since, has faced daunting questions of whether “destruction be our lot,” and we certainly have our share today. Most people can point to a host of complex and related reasons for rising anxiety about our future. Global and national environmental crises seem relentless and increasingly related to energy, economic, military, and food crises. Our unsustainable debt and budgets—national, state, local, family, personal—seem beyond control, reflecting an economy that has not generated significant wage growth in a generation. We have been locked in faraway wars for more than a decade, at war in one form or another for a half-century. Despite our victory over totalitarian communism, we spend more on our military than all other countries combined. We, the descendants of republicans with great suspicion about standing armies, now maintain a costly military empire across more than one hundred countries. On top of all of this and more, too many people now doubt that we are, in fact, a government of the people, and they no longer believe in their hearts that democracy works or that our government responds to what the people want.

 

2 Corporations Are Not People—and They Make Lousy Parents

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If the tobacco companies really stopped marketing to children, the tobacco companies would be out of business in 25 to 30 years because they will not have enough customers to stay in business.

—Bennett Lebow, cigarette corporation CEO1

“F#*k you.” That (except without the sanitizing symbols) is what Bad Frog Brewery, Inc., a corporation chartered under Michigan law, demanded the Constitutional right to say on its labels. In the mid-1990s, the corporation wanted to market its beer to the young and rebellious with a foul-mouthed frog who, as the label said, “just don’t care.” The corporation offered a mascot on the label, a large cartoon frog elevating its middle finger. Because New York law prohibits alcohol labels that are “obscene or indecent” and “obnoxious or offensive to the commonly and generally accepted standard,” the state liquor authority refused to approve the label for sale in New York. The corporation balked at complying with the law and filed a lawsuit against the New York State Liquor Authority and the people who served on it.

 

3 If Corporations Are Not People, What Are They?

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Metaphor… is the peculiarity of a language, the object of which is to tell everything and conceal everything, to abound in figures. Metaphor is an enigma which offers itself as a refuge to a robber who plots a blow, to a prisoner who plans an escape.

—Victor Hugo, Les Miserables1

What is a corporation? One might expect to find a good description of of a corporation in Citizens United or the other corporate rights cases, but the Supreme Court is strangely silent on that point. Instead, corporate rights decisions from the Court come packaged in metaphorical clouds. It is not corporations attacking our laws; it is “speakers” and “advocates of ideas,” “voices” and “persons,” and variations on what Justice John Paul Stevens called in his Citizens United dissent, “glittering generalities.”

Corporations are economic tools created by state law; corporate shares are property. Yet the majority decision in Citizens United did not explain even the most basic features of a corporation, an entity created and defined by state laws. The Court did not examine why Congress and dozens of state legislatures thought it made sense to distinguish between corporations and human beings when making election rules. One reading the Citizens United decision might forget that the case concerned a corporate regulation at all; the Court described the timid corporate spending rule it struck down as a “ban on speech,” government “silencing” of some “voices,” some “speakers,” and some “disadvan-taged classes of persons.”2

 

4 Corporations Don’t Vote; They Don’t Have To

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The strength of America is in the boardrooms, country clubs and Lear jets of America’s great corporations. We’re saying to Wal-Mart, AIG and Pfizer, if not you, who? If not now, when?

—Murray Hill Inc., Candidate for United States Congress1

Not long after the Citizens United decision, a corporation chartered under Maryland law announced its campaign for Congress. Leading with the slogan “Corporations Are People Too,” Murray Hill Inc.’s statement explained: “Corporate America has been driving Congress for years,” and now “it’s time for us to get behind the wheel ourselves.” Proposing to “eliminate the middleman,” the corporation promised “an aggressive, historic campaign that puts people second, or even third.” The corporation explained that it would use Astroturf lobbying, avatars, and robocalls to reach voters, concluding, “It’s our democracy. We bought it, we paid for it, and we’re going to keep it.”2

The satirical Murray Hill congressional campaign was the inspiration of a real person, the company’s president, Eric Hensal. As with all good satire, the jest works because it hits so close to the truth.

 

5 Did Corporate Power Destroy the Working American Economy?

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Crony capitalism is usually thought of as a system in which those close to the political authorities who make and enforce policies receive favors that have large economic value….

[In such a system] the intermingling of economic and political elites means that it is extremely difficult to break the implicit contract between government and the privileged asset holders.

—Stephen Haber, “The Political Economy
of Crony Capitalism”1

Since the Citizens United decision in 2010, hundreds of business leaders have condemned the decision and have joined the work for a constitutional amendment to overturn expanded corporate rights. These include entrepreneurs such as Yvon Chouinard, founder of Patagonia; Ben Cohen and Jerry Greenfield, founders of Ben & Jerry’s Ice Cream; Amy Domini, founder of Domini Social Investments; Gary Hirschberg, founder of Stonyfield Farm; Nell Newman, founder of Newman’s Own Organics; Wayne Silby, founder of Calvert Social Investment Fund, and many more.2 These business leaders are doing this because they believe that democracy, freedom, and a sustainable world depend on a bill of rights for people, not corporations. They know that Citizens United and corporate domination of government are terrible for American innovation and business.

 

6 Corporations Can’t Love

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Only a virtuous people are capable of freedom.

—Benjamin Franklin

No free government can stand without virtue in the people, and a lofty spirit of patriotism.

—Andrew Jackson

Virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtue…. A government is like everything else: to preserve it we must love it…. Everything, therefore, depends on establishing this love in a republic.

—Thomas Jefferson

In America, we are equal and free not because we have the same material goods, power, and interests as each other but because we are people. We believe that freedom and rights are our birthright. Now Citizens United has reopened ancient questions: How can a republican government of free and equal people survive in the real world of massive inequalities of wealth and power? How can all Americans participate in government on equal terms? How do we prevent the corruption of government and the destruction of liberty by what James Madison called “faction”?

 

7 Restoring Democracy and Republican Government

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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 Raskin1

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 Roosevelt2

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.

 

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