Corporations Are Not People

by Jeffrey D. Clements

  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.”

  Step 1: The People’s Rights Amendment

  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.

  Some scholars call the constitutional amendment process a “republican veto.”3 By that they mean that the American people, the real sovereigns in our system of government, retain the last word when egregious Supreme Court decisions undermine our understanding of democracy and the Bill of Rights. At least six times, Americans amended the Constitution to overturn Supreme Court decisions. Citizens United deserves the same fate.

  Amendment campaigns, even campaigns like the Equal Rights Amendment that fall short, spur national conversations in times of crisis and doubt. They define our values and shape us as a people. They keep the Supreme Court honest and accountable to the people. They make government of and by the people real again.

  The People’s Rights Amendment will overturn Citizens United and settle once and for all what most people have always known: our Constitution protects the rights of people, not corporations.

  Here’s what the amendment says:

  * * *

  Amendment XXVIII

  SECTION I. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

  SECTION II. The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies, or other corporate entities established by the laws of any state, the United States, or any foreign state. Such corporate entities are subject to any regulation as the people, through their elected state and federal representatives, deem reasonable and as are otherwise consistent with the powers of Congress and the States under this Constitution.

  SECTION III. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and all such other rights of the people, which rights are inalienable.4

  * * *

  This is not radical; just the opposite. The People’s Rights Amendment returns the Constitution to what it always has meant. The People’s Rights Amendment makes clear, once and for all, that the Bill of Rights was created for and by the American people, not corporations, and that corporate abuse of the judicial power to declare laws unconstitutional must end.

  A robust campaign for the People’s Rights Amendment already is under way. Fully 82 percent of Americans—Republicans, Democrats, and Independents—already support a constitutional amendment to overturn Citizens United.5 In the year after the Citizens United decision, nearly a million people signed resolutions calling for a constitutional amendment, and people are organizing in every state in the country.

  As a cofounder of Free Speech for People, I traveled to Washington in late January 2011—the first anniversary of the Citizens United decision—to join others from Free Speech for People, as well as Public Citizen, People for the American Way, Move to Amend, the Backbone Campaign, and many people from across the country. We went to the Capitol to meet with staff of several senators and representatives, including Max Baucus, John Kerry, and Donna Edwards, about the People’s Rights Amendment. We presented more than 750,000 signatures on petitions calling for the constitutional amendment to reverse Citizens United and corporate rights.

  It was another cold January day, as it had been the year before when the Supreme Court
announced the Citizens United decision. This time, though, the grass between the Capitol Building and the Supreme Court was filled with people of all ages, races, occupations, and political viewpoints, people who had come from all over the country to stand to object to Citizens United and to demand a constitutional amendment to reverse it. Similar meetings have taken place in state capitals, town meetings, law schools, colleges, religious institutions, and every sort of assembly.

  Scores of leading law professors and lawyers have joined the call for Congress to consider a constitutional amendment to reverse Citizens United. Increasing numbers of American businesses are supporting the amendment campaign. Free Speech for People has partnered with the American Sustainable Business Council, representing more than seventy thousand businesses that stand as “Business for Democracy” to oppose corporate rights. Free Speech for People is also working with the American Independent Business Alliance and other business groups to organize the majority of American businesses that want nothing to do with crony capitalism and corporate rights.

  As in Theodore Roosevelt’s day, this cause is not partisan. Libertarians and tea party activists, conceding nothing of their concern about big government, are joining the battle to keep America free of dominating global corporate power. The Transpartisan Alliance, headed by the libertarian Michael Ostrolenk, is organizing conservatives who recognize the need to contain the government-created and -subsidized transnational corporations that wield such power over American lives and communities. Chuck Baldwin, the 2004 nominee of the conservative Constitution Party for the office of vice president, calls corporate America the greatest threat to freedom. “I will be even so bold as to say,” said Baldwin in 2007, “that America has much more to fear from today’s Chamber of Commerce than it does from al Qaida.”6

  Clearly, there is no reason to stay on the sidelines, but how do we win? Article V of the Constitution provides at least two approaches to amending the Constitution. Congress may pass a resolution with a two-thirds vote, and the resolution is then ratified by three-quarters of the states. Alternatively, amendments can be passed in a constitutional convention called by the states and then ratified by three-quarters of the states. The convention route has not been taken since the initial Philadelphia Convention of 1787. All twenty-seven amendments to date have been passed by a two-thirds vote of Congress and ratified by three-quarters of the states.

  Achieving a vote of two-thirds of Congress and three out of four states sure sounds challenging, and it is. But don’t buy the discouraged or cynical claims of those who say that the Twenty-Eighth Amendment will never happen or those who think that Americans cannot achieve dramatic constitutional reform anymore. That admission of weakness, masquerading as sophisticated political analysis, has never worked when Americans faced a fundamental challenge to the vision of liberty and equality that is our birthright.

  It would be one thing if the constitutional amendment proposal were a novel or untested path, but it is not. We have amended the Constitution twenty-seven times, seventeen times since adopting the Bill of Rights. We have done this repeatedly, and not only back in the distant days of history. The Twenty-Seventh Amendment (requiring an intervening election before any congressional pay hike takes effect) became part of the Constitution only in 1992. Before that, the voting age amendment came in 1971. Indeed, going back to the Seventeenth Amendment in 1913, almost every subsequent decade in the twentieth century saw a new amendment become part of the Constitution. The only exceptions were the wartime 1940s and the 1980s. We’re overdue.

  We frequently hear of the emphasis in constitutional interpretation on the intent of the framers of the Constitution. That is certainly one important aspect of constitutional interpretation. We ought not to forget, however, how often and how actively Americans have updated the Constitution by using the amendment process as a basic tool of democracy. In the end, it is the American people who are the ultimate interpreters of our Constitution, and it is we who decide how to fulfill the framers’ vision of equality, freedom, and justice for all.

  If original intent is the guidepost, we can take comfort in two key facts. The framers intended the Bill of Rights to protect the liberties of human beings, not corporations. And the framers intended that Americans take responsibility for amending the Constitution when necessary to strengthen self-government and protect our liberties. Indeed, the Constitution itself might never have made it out of the Philadelphia Convention in 1787 and on to ratification by the people and states had Article V’s procedure for amendment not been included.7

  Road Map to Success

  The road to the People’s Rights Amendment goes through our communities and the states. In the end, Congress will need to vote out the People’s Rights Amendment bill, and it is true that leaders in Congress have already introduced amendment bills that would overturn Citizens United. But if we stand back and wait for Congress to do the job, we will fail. Congress won’t do it, not without a national movement.

  This movement is growing. It is focused and increasingly organized by passage of amendment resolutions wherever Americans or our elected representatives assemble: state legislatures, town meetings, county and city councils, houses of worship, business associations and trade groups, advocacy and charitable organizations, and anywhere else people assemble. People who support the constitutional amendment campaign have lots of different views on other issues, ranging from limited government, balanced budgets, and local control to environmental protection, climate change, and open space; from labor unions to free marketers; from health care to healthy food; from bar associations to barkeepers. Passage of a critical mass of People’s Rights Amendment resolutions throughout the country will bring decisive pressure on Congress to finish the job. Wherever you engage with other people, talk to your colleagues, pass a resolution, and ask your elected representatives to do the same. Resolutions are available in the Resources section of this book.

  Help others who want to strengthen our country with the People’s Rights Amendment connect to one another and bring in new people to join the effort. Sign up at Free Speech for People, and join the many other national, state, and local groups working together to move this forward. If you cannot find a group in your area, start one. Organize people, have a house party, form committees of e-correspondents, and do all of the varieties of old-fashioned and new-fashioned hard work of self-government and citizenship. Resources for doing this can be found in the Resources section. Help yourself to whatever you find useful.

  The Resources section contains the People’s Rights Amendment, a sample amendment resolution, sample petitions, frequently asked questions, talking points, and a long list of additional resources and connections to people and organizations that are already working to make this new American Revolution a reality. You can sign on to the amendment resolution, stay up to date, and download these and more tools at Free Speech for People.

  Step 2: Reforming the Corporation

  Who says corporations are accountable only to shareholders? Why should we not expect that those who accept the government-created privilege of incorporation balance that privilege with good standards for the livelihood of employees, our economy, and the health of the environment and of the communities in which they do business? And why should we allow multibillion-dollar global corporations to take shelter in the corporate law of Delaware? Should not the size and complexity of a corporation at some point warrant a federal charter rather than a state charter from the most corporate-friendly state that transnationals can find (or can pressure)? Why shouldn’t all Americans decide what standards we expect from global corporations that choose to do business here? Why should the corporate status be perpetual, without some ability of the people to evaluate whether the corporation has complied with the law and served the public interest as intended?

  In America, we are free, or should be, to answer these questions in the democratic way: we can debate and then vote to make whatever answers best serve the country. The rules of corpor
ations come from us (see Chapter Three).8 If we do not like how the corporate rules are working out, we need to change them. We need to dust off and use some of the rules that already exist, such as revocation of corporate status when corporations repeatedly violate the law.

  At least two principles should guide corporate law reform to restore balance between large corporations and human beings and our government. First, incorporation is a privilege. Second, transnational corporations such as BP should not be able to use the corporate law of a single state, such as Delaware, without proper national corporate standards and safeguards.

  Principle One: Incorporation Is a Privilege

  The corporate charter is a privilege from the public; we should expect public accountability and benefit. Corporate law is a public matter, not a private one. Corporate law defines parameters of corporate conduct and shapes our world, our families, and our communities in profound ways. We cannot afford to leave it to corporate lawyers to decide what they think corporate duties and responsibilities should be. Corporate law may seem boring at first, but we need to care about corporate law as much as we care about any other law or issue, from the environment to the economy, from healthy communities to strong families, from energy to foreign policy and war. The consequences of corporate law, for better or worse, have as big an impact on those issues and others than any other law, and perhaps more.

  Professor Kent Greenfield at Boston College Law School has laid out the kind of clear standard that we should expect our public incorporation laws to have at their core:

  No corporation, even one making money for its core constituents, should be allowed to continue unchallenged and unchanged if its operation harms society…. The corporation is an instrument whose purpose is to serve the collective good, broadly defined, and if it ceases to serve the collective good, it should not be allowed to continue its operation, at least not in the same way. If we all knew that all corporations, or corporations of a certain type, or even an individual corporation created more social harm than good, no society in its right mind would grant incorporation to those firms.9