Corporations Are Not People

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Corporations Are Not People Page 19

by Jeffrey D. Clements


  The People’s Rights Amendment will force courts to address the heart of the matter: What human rights are affected when a corporation challenges democratically enacted laws?

  So when BMW claims, for example, that a $2 million punitive damage judgment violates its due process rights because the judgment is “excessive,” the Court will need to be clear that due process rights belong to the human shareholders who will be affected by the judgment or the CEO, who might get a lower bonus as a result of it. Whether that violates the due process rights of the people who lose money due to such a judgment can be determined by the Court without pretending that the corporation itself has constitutional rights.

  Today, the playing field is not level; the largest global corporations have far more power in the legislatures and the courts than all other businesses. After the People’s Rights Amendment is added to the Constitution, all of our rights as people, as well as the checks and balances of our Constitution and our democratic process, will ensure a level playing field for all businesses.

  Business and businesspeople will continue to have strong, influential weight in legislatures and agencies under the People’s Rights Amendment. There are many tools to address improper rules or regulations that do not require creating constitutional rights for corporate entities.

  Why do we need a constitutional amendment? Can’t Congress fix this?

  Congress could begin to address some of the problems of Citizens United. Congress could enact laws requiring disclosure of political spending by corporations, for example. It is telling, though, that even that limited measure failed to pass in a vote on the Senate floor after Citizens United.

  Short of disregarding the Supreme Court’s decision—which would undermine the Court’s legitimacy—Congress cannot overrule the Supreme Court’s interpretation of the Constitution without moving to amend the Constitution.

  That is why constitutional amendments have always been necessary to correct egregiously wrong Supreme Court decisions, from the 1856 ruling that African Americans, “whether emancipated or not,” are not citizens and “had no rights which the white man is bound to respect”2 to the 1874 decision that even if women were citizens, they had no right to vote because the Constitution did not guarantee the right to vote as among the fundamental rights, privileges, or immunities of citizenship.3

  Congress and the states can and should take many steps short of amendment to make elections more fair and to improve the likelihood that legislatures will reflect the will of the people, from approving public funding mechanisms to eliminating barriers to registration and voting. None of these will be sufficient, however, without the People’s Rights Amendment.

  I don’t think we should amend the First Amendment or any other part of the Bill of Rights. That’s never been done, and we shouldn’t start now.

  I don’t think we should amend the Bill of Rights either. That’s why we need the People’s Rights Amendment to restore the Bill of Rights to real people. The fight to change the Bill of Rights has been going on for three decades, and the humans are losing.

  With the creation of corporate “voices,” “speech,” and “rights,” the Bill of Rights has been radically altered. The Twenty-Eighth Amendment will protect the First Amendment and the rest of the Bill of Rights for people and end the distortion of turning corporations into “people.”

  Eliminating corporate money in politics or eliminating the ability of corporations to strike down laws that they think will blunt their marketing campaigns will not affect the speech rights of a single person.

  Organizations and Links for Taking Action

  * * *

  There are a lot of ways to connect to people and organizations working to overturn Citizens United and restore an economy that works for everyone. Here are some useful sources of information.

  About Citizens United

  Free Speech for People has extensive resources regarding the Citizens United decision, its background and implications, and tools for joining the campaign for the People’s Rights Amendment and other actions to balance corporate power.

  http://www.freespeechforpeople.org)

  The Story of Stuff Project has produced a clever explanatory video titled “The Story of Citizens United v. FEC.”

  http://storyofstuff.org/citizensunited

  For a satirical take on the Citizens United decision, watch the Murray Hill Inc. campaign video

  http://www.murrayhillincforcongress.com

  On the implications of Citizens United for American business, visit the American Sustainable Business Council.

  http://www.asbcouncil.org

  Business for Democracy

  http://www.businessfordemocracy.org

  American Independent Business Alliance

  http://www.amiba.net

  The Constitutional Amendment Campaign and the People’s Rights Amendment

  Corporations Are Not People

  http://www.corporationsarenotpeople.com

  Free Speech for People

  http://www.freespeechforpeople.org

  Business for Democracy

  http://www.businessfordemocracy.com

  Move to Amend

  http://www.movetoamend.org (and member groups listed there)

  People for the American Way

  http://www.pfaw.org

  Public Citizen

  http://www.citizen.org

  http://www.democracyisforpeople.org

  Common Cause

  http://www.commoncause.org

  United for the People

  http://www.united4thepeople.org (and groups identified there)

  Center for Media and Democracy

  http://www.prwatch.org

  http://www.corpwatch.org

  http://www.sourcewatch.org

  We the People Campaign

  wethepeoplecampaign.org

  Corporate Charter Reform and Corporate Accountability

  Corporations Are Not People

  http://www.corporationsarenotpeople.com

  Free Speech for People

  http://www.freespeechforpeople.org

  Center for Media and Democracy

  http://www.prwatch.org

  http://www.corpwatch.org

  http://www.sourcewatch.org

  Center for Corporate Policy

  http://www.corporatepolicy.org/

  Green Change

  http://www.greenchange.org/

  B Corporations

  http://www.bcorporation.net/

  Reclaim Democracy

  http://www.reclaimdemocracy.org

  Program on Corporations, Law, and Democracy

  http://www.poclad.org

  Community and Environmental Legal Defense Fund

  http://www.celdf.org

  Corporate Ethics International

  http://www.corpethics.org/

  Corporations for the Twenty-First Century

  American Sustainable Business Council

  http://www.asbcouncil.org

  B Corporations

  http://www.bcorporation.net

  Social Venture Network

  http://www.svn.org

  CERES

  http://www.ceres.org

  New Voice of Business

  http://www.newvoiceofbusiness.org

  Slow Money

  http://www.slowmoney.org

  Main Street Alliance

  http://www.mainstreetalliance.org

  American Independent Business Alliance

  http://www.amiba.net

  New Rules Project

  http://www.newrules.org

  Business Alliance for Local Living Economies

  http://www.livingeconomies.org

  Cleaning the Swamp: Campaign Finance and Lobbying Reform

  Public Campaign

  http://www.publicampaign.org

  Demos

  http://www.demos.org

  Common Cause

  http://www.commoncause.org

  Public Citizen

  http://www.citizen
.org

  Campaign Legal Center

  http://www.campaignlegalcenter.org

  MoveOn/The Other 98%—Fight Washington Corruption

  http://fightwashingtoncorruption.org

  Center for Responsive Politics

  http://www.opensecrets.org

  National League of Women Voters

  http://www.lmv.org

  Other Resources

  American Constitution Society

  http://www.asclaw.org

  Equal Justice Society

  http://www.equaljusticesociety.org

  Brennan Center for Justice

  http://www.brennancenter.org

  Constitution Accountability Center

  http://www.theusconstitution.org/

  Transpartisan Center

  http://www.transpartisancenter.org

  Constitution Party

  http://www.constitutionparty.com/

  Alliance for Democracy

  http://www.thealliancefordemocracy.org/

  I have provided a sampling of possible resources here. There are many other groups—international, national, regional, and local. If you can’t find one in your area, contact me at Free Speech for People ([email protected]) and I’ll point you in the right direction.

  Recommended Reading

  * * *

  The following list is by no means exhaustive. Many excellent and important works are not mentioned, but these are some of my favorites.

  The Constitution

  Declaration of Independence

  United States Constitution

  Amar, Akhil Reed. America’s Constitution: A Biography. New York: Random House, 2005.

  Cogan, Neil H., ed. The Complete Bill of Rights: The Drafts, Debates, Sources and Origins. New York: Oxford University Press, 1997.

  Frohnen, Bruce, ed. The American Republic: Primary Sources. Indianapolis, Ind.: Liberty Fund, 2002.

  Hamilton, Alexander, James Madison, and John Jay. The Federalist. New York: Cambridge University Press, 2003. (Originally published 1788.)

  Handlin, Oscar, and Mary Flug Handlin. Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts, 1774-1861. Cambridge, Mass.: Belknap Press of Harvard University Press, 1947.

  Horwitz, Morton J. The Transformation of American Law, 1870-1960. New York: Oxford University Press, 1992.

  Horwitz, Morton J. The Transformation of American Law, 1780-1860. Cambridge. Mass.: Harvard University Press, 1997.

  Kammen, Michael, ed. The Origins of the American Constitution: A Documentary History. New York: Viking Penguin, 1986.

  Kyvig, David E. Explicit and Authentic Acts: Amending the Constitution, 1776-1995. Lawrence: University Press of Kansas, 1996.

  Schwartz, Bernard. The Bill of Rights: A Documentary History. New York: Chelsea House/McGraw Hill, 1971.

  Corporations and the Constitution

  Hartmann, Thom. Unequal Protection: How Corporations Became “People” and How You Can Fight Back (2nd ed.). San Francisco: Berrett-Koehler, 2010.

  Kerr, Robert L. The Corporate Free Speech Movement: Cognitive Feudalism and the Endangered Marketplace of Ideas. New York: LFB, 2008).

  Nace, Ted. Gangs of America: The Rise of Corporate Power and the Disabling of Democracy. San Francisco: Berrett-Koehler, 2003.

  Corporate Power and Human Life

  Bakan, Joel. The Corporation: The Pathological Pursuit of Profit and Power. New York: Free Press, 2004.

  Kelley, Marjorie. The Divine Right of Capital: Dethroning the Corporate Aristocracy. San Francisco: Berrett-Koehler, 2001, 2003.

  Klein, Naomi. No Logo. New York: Picador, 2002.

  Korten, David C. When Corporations Rule the World (2nd ed.). Bloomfield, Conn.: Kumarian Press/San Francisco: Berrett-Koehler, 2001.

  Potter, Wendell. Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR Is Killing Health Care and Deceiving Americans. New York: Bloomsbury Press, 2010.

  Schor, J. Born to Buy: The Commercialized Child and the New Consumer Culture. New York: Scribner, 2004.

  Schwartz, Ellen, and Suzanne Stoddard. Taking Back Our Lives in the Age of Corporate Dominance. San Francisco: Berrett-Koehler, 2000.

  Corporate Law

  Greenfield, Kent. The Failure of Corporate Law. Chicago: University of Chicago Press, 2006.

  Henn, Harry G., and John R. Alexander. Law of Corporations, 3rd ed. Saint Paul, Minn.: West, 2002. (Originally published 1983.)

  Cleaning the Swamp

  Hacker, Jacob S., and Paul Pierson. Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class. New York: Simon & Schuster, 2010.

  Kaiser, Robert G. So Damn Much Money. New York: Vintage Books, 2009.

  Other Related Works

  Chute, Carolyn. The School on Heart’s Content Road. New York: Atlantic Monthly Press, 2008.

  Diamond, Jared. Collapse: How Societies Choose to Fail or Succeed. New York: Viking, 2004.

  Free Speech for People and Appalachian Voices’ Request for Revocation of Massey Energy Company Charters

  June 8, 2011

  By Electronic and First Class Mail

  ([email protected])

  The Honorable Beau Biden

  Attorney General, State of Delaware

  Carvel State Office Building

  820 N. French Street

  Wilmington, DE 19801

  Re: Request to Investigate Revocation of Massey

  Energy Company Corporate Charters

  Dear Attorney General Biden:

  We write today, on behalf of Free Speech For People and Appalachian Voices, to request investigation by your office into a Delaware corporation that has engaged in repeated and sustained violations of law, contributing to the deaths of people in central Appalachia and to the destruction and devastation of our environment and communities. We request that you investigate and consider bringing proceedings to revoke the charter of the Massey Energy Company corporation and its Delaware corporate subsidiaries (“Massey”). As Massey became a wholly-owned subsidiary corporation of another Delaware corporation, Alpha Natural Resources, Inc. (“Alpha”), on June 1, 2011, we request that you take appropriate steps to ensure Alpha’s cooperation in your inquiry.1

  Free Speech for People is a national campaign to combat unconstitutional doctrines of “corporate rights” that threaten our republican democracy and government of, for and by the American people. Hundreds of thousands of Americans have joined Free Speech for People’s call for a constitutional amendment to restore the United States Constitution and fair elections to the people in response to the US Supreme Court’s recent ruling in Citizens United v. FEC. Responsible oversight of state-created corporations is an essential obligation of citizenship and self-government, and Free Speech for People works for accountability with respect to the privileges and conditions that apply to corporate charters granted by the people and our states.

  Appalachian Voices is an award-winning, environmental organization committed to protecting the land, air and water of the central and southern Appalachian region. Since the impacts of coal threaten Appalachia more than any other single source of pollution, Appalachian Voices is committed to reducing coal’s impact on the region and to advancing its vision for a cleaner energy future.

  Massey Energy Company is the 4th largest coal company in the country, with revenues estimated for 2011 at more than $4 billion. The corporation keeps its headquarters in Richmond, VA and maintains substantial mine operations in central Appalachia. Although Massey avails itself of Delaware corporate charter laws, the company has virtually no business in Delaware. Following the Massey-Alpha merger, the combined company will be the second largest coal company, with estimated earnings for 2011 at more than $8 billion. Alpha also avails itself of Delaware corporate charter laws but maintains virtually no business in Delaware.

  On April 5, 2010 an explosion in Massey’s Upper Big Branch Mine in southern West Virginia killed 29 men working in
the mine. We have attached the May 19, 2011 Report of the Governor’s Independent Investigation Panel, which has determined that the explosion was preventable, and was caused by Massey’s pattern of disregarding safety laws and undermining law enforcement. As discussed further herein, the Report chronicles Massey’s repeated violations of law and its “normalization of deviancy.”

  I. The Corporate Charter in Delaware and Elsewhere Is A Privilege Subject to Revocation in Cases of Repeated Unlawful Conduct

  As you know, many of the world’s largest corporations, including Massey, have chosen to use corporate charters granted by the people and General Assembly of Delaware. While Delaware has welcomed the widespread use of Delaware corporate charters even for business conducted well beyond Delaware’s borders, the people of Delaware and the General Assembly have always insisted that the corporate charter is a privilege, not a right. Delaware, like other states, reserves the right to revoke or forfeit state corporate charters when they are abused or misused, as in cases of repeated unlawful conduct. In Delaware and elsewhere, corporate charters are only granted “subject to dissolution or the revocation or forfeiture of the corporate charter.” See 8 Del. Code § 284. See also 5 Del. Code §§ 732, 1520, 1631 (credit card and bank corporate charters subject to revocation).

  The Delaware Constitution (Article IX, §1) requires that the General Assembly “shall, by general law, provide for the revocation or forfeiture of the charters or franchises.” The General Assembly has followed this mandate of the people by enacting Title 8, Section 284 of the General Corporations Law entitled “Revocation or Forfeiture of Charter; Proceedings.” That section provides:

 

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