19. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 826 and n. 6 (1978) (Rehnquist, dissenting) (“The free flow of information is in no way diminished by the Commonwealth’s decision to permit the operation of business corporations with limited rights of political expression. All natural persons, who owe their existence to a higher sovereign than the Commonwealth, remain as free as before to engage in political activity…. The Fourteenth Amendment does not require a State to endow a business corporation with the power of political speech.”); Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) (Rehnquist, dissenting) (“I disagree with the Court’s conclusion that the speech of a state-created monopoly, which is the subject of a comprehensive regulatory scheme, is entitled to protection under the First Amendment.”); and Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1, 26, 24 (1986) (Rehnquist, dissenting) (“Nor do I believe that negative free speech rights, applicable to individuals and perhaps the print media, should be extended to corporations generally…. PG&E is not an individual or a newspaper publisher; it is a regulated utility. The insistence on treating identically for constitutional purposes entities that are demonstrably different is as great a jurisprudential sin as treating differently those entities which are the same.”). See also Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 784 (1976) (Rehnquist, dissenting) (“The Court speaks of the importance in a ‘predominantly free enterprise economy’ of intelligent and well-informed decisions as to allocation of resources…. While there is again much to be said for the Court’s observation as a matter of desirable public policy, there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession.”).
20. Alliance for Justice, Justice for Sale: Shortchanging the Public Interest for Private Gain (Washington, D.C.: Alliance for Justice, 1993).
21. Amicus brief of the U.S. Chamber of Commerce, First National Bank of Boston v. Bellotti, U.S. Supreme Court, 1977 WL 189653 (1977).
22. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
23. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980).
24. National Chamber Litigation Center, “Business Is Our ONLY Client” and “Celebrating Thirty Years of Advocacy in the Courts,” Business Advocate, Spring 2007.
25. Center for Responsive Politics, “Lobbying: Top Spenders, 1998-2011,” OpenSecrets, http://www.opensecrets.org/lobby/top.php?indexType=s (accessed July 21, 2011), and “Lobbying: Top Industries, 1998-2011,” Open Secrets, http://www.opensecrets.org/lobby/top.php?indexType=i (accessed July 21, 2011).
26. Since 1995, Gallup has regularly polled the following question:
All in all, which of the following best describes how you feel about the environmental problems facing the earth?
(1) Life on earth will continue without major environmental disruptions only if we take additional, immediate, drastic action concerning the environment; or
(2) we should take some additional actions concerning the environment; or
(3) we should just take the same actions we have been taking on the environment.
Chapter Two: Corporations Are Not People—and They Make Lousy Parents
1. Kessler, Final Opinion, 974.
2. Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87, 91 and n. 1 (2d Cir. 1998).
3. Laurus & Brother Company v. Federal Communications Commission, 447 F.2d 876 (1971).
4. Kessler, Final Opinion, 1207-1208.
5. Ibid., 974
6. Ibid., 1008-1115.
7. Ibid., 972.
8. Ibid., 1207.
9. Ibid., 977-978.
10. Lorillard Corp. v. Reilly, 533 U.S. 525 (2001), citing studies by the FDA that “72% of 6 year olds and 52% of children ages 3 to 6 recognized ‘Joe Camel,’ the cartoon anthropomorphic symbol of R. J. Reynolds’ Camel brand cigarettes.” After the introduction of Joe Camel, Camel cigarettes’ share of the youth market rose from 4 percent to 13 percent.
11. Ibid., 534-535:
“(5) Advertising Restrictions. Except as provided in [§ 21.04(6)], it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:
“(a) Outdoor advertising, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location that is within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school;
“(b) Point-of-sale advertising of cigarettes or smokeless tobacco products any portion of which is placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment.” [§§21.04(5)(a)-(b)]
12. Ibid., §1.
13. Lorillard Tobacco Co. v. Reilly, 2001 WL 193609 (U.S.), 20 (U.S. amicus brief, 2001).
14. See Brief of the Washington Legal Foundation in Lorillard Tobacco Co. v. Reilly, and Altadis U.S.A. v. Reilly, 2001 WL 34135253 (U.S.):
Because it involves restrictions on wholly truthful speech—a category of speech for which extremely few restrictions are warranted, regardless whether the speech is commercial or noncommercial—this case provides a particularly appropriate occasion to provide Central Hudson with the overhaul it desperately requires… . Any First Amendment test that could even arguably be applied to uphold sweeping speech restrictions of the type at issue in this case has little to recommend itself….
The importance of advertising in our free-market economy cannot easily be overstated.
15. Lorillard Corp. v. Reilly, 533 U.S. 525 (2001). Tom Reilly had succeed Scott Harshbarger as attorney general of Massachusetts.
16. Michael Pollan, “Playing God in the Garden,” New York Times, October 25, 1998, http://www.nytimes.com/1998/10/25/magazine/playing-god-in-the-garden.html (accessed July 21, 2011).
17. Parliament of Canada, Standing Senate Committee on Agriculture and Forestry, “rBST and the Drug Approval Process,” Interim Report, March 1999, http://www.parl.gc.ca/Content/SEN/Committee/361/agri/rep/repintermar99-e.htm#C.%20Conclusions%20 Reached (accessed April 28, 2011).
18. Personal communication, March 8, 2011.
19. Vermont’s proposed findings of fact no. 9, George Aff. 45, Ex. N (FDA letter, July 27, 1994), in International Dairy Foods Association v. Amestoy, 92 F.3d 67 (2nd Circ. 1996).
20. International Dairy Foods Association v. Amestoy, 6 V.S.A. (1996), §2754(c).
21. Affidavit of Donald George, acting commissioner and director of the Animal and Dairy Industries Division of the Vermont Department of Agriculture filed in International Dairy Foods.
22. Ibid.
23. Kessler, final order, 4-5, 97.
24. The industry lawyers did not bother to submit to the public process the hundreds of pages of affidavit materials that they filed in court a short time later when the industry sued to block the law after the commissioner completed the implementation of the labeling law. The commissioner viewed this as an industry attempt to “subvert the process,” suspended the rule, and took all of the new material under review so that it could be considered before the final rule took effect. George affidavit, International Dairy Foods.
25. International Dairy Foods, Surreply Brief of State of Vermont, 8; Groves affidavit; Buckley affidavit.
26. Monsanto Company v. Oakhurst Dairy, United States District Court for the District of Massachusetts, Case 1:03-cv-11273-RCL, Answer of Oakhurst Dairy.
27. International Dairy Foods, Memorandum in Support of Plaintiffs’ Renewed Motion for Preliminary Injunction, 2, 16.
28. International Dairy Foods Association v. Amestoy, 898 F.Supp. 246, 250 (D. Vt. 1995).
29. International Dairy Foods Association v. Amestoy, 92 F.3d 67 (2nd Cir. 1996).
30. Personal communication, March 8, 2011.
31. Powell, “Attack.”
32. Thomas Jefferson, Notes on Virginia (1782).
33. Wisconsin v. Yoder, 406 U.S. 205, 213, 225 (1972).
34. Susan Linn and Courtney L. Novosat, “Calories for Sale: Food Marketing to Children in the 21st Century,” Annals of the American Academy of Political and Social Science, 615 (2008): 133-155.
35. Campaign for a Commercial-Free Childhood, “Ronald McDonald Report Card Ads Expelled from Seminole County; CCFC Campaign Ends Controversial In-School Marketing Program,” January 17, 2008, http://commercialfreechildhood.org/pressreleases/ronaldmcdonald.htm (accessed July 22, 2011).
36. Channel One, “Terms and Conditions of Network Participation,” http://help.channelone.com/pdfs/12-07-07/2008-Link-LeftNav&Contact-Terms.pdf (accessed September 4, 2011), p. 4.
37. Juliet B. Schor, Born to Buy: The Commercialized Child and the New Consumer Culture (New York: Scribner, 2004), p. 21.
38. In 2006, 82 percent of schools had corporate advertisements. Alex Molnar, David R. Garcia, Faith Boninger, and Bruce Merrill, A National Survey of the Types and Extent of the Marketing of Foods of Minimal Nutritional Value in Schools (Tempe: Commercialism in Education Research Unit, Arizona State University, 2006).
39. Jennifer Medina, “Los Angeles Schools to Seek Sponsors,” New York Times, December 15, 2010.
40. Ibid.
41. Alex Molnar, Faith Boninger, Gary Wilkinson, Joseph Fogarty, and Sean Geary, Effectively Embedded: Schools and the Machinery of Modern Marketing: The Thirteenth Annual Report on Schoolhouse Commercializing Trends, 2009-2010 (Boulder, Colo.: National Education Policy Center, 2010), http://nepc.colorado.edu/publication/Schoolhouse-commercialism-2010 (accessed March 15, 2011).
42. Susan Linn and Josh Golin, “Beyond Commercials: How Food Marketers Target Children,” Loyola of Los Angeles Law Review, May 2006, p. 24, http://llr.lls.edu/volumes/v39-issue1/docs/linn.pdf (accessed July 22, 2011).
43. Catey Hill, “10 Things Snack Food Companies Won’t Say,” Smart Money, November 15, 2010, http://www.smartmoney.com/spending/for-the-home/10-things-snack-food-companies-wont-say/?page=3 (accessed July 22, 2011).
44. California Pan-Ethnic Health Network and Consumers Union, Out of Balance: Marketing of Soda, Candy, Snacks and Fast Foods Drowns Out Healthful Messages, September 2005, http://nepc.colorado.edu/files/CERU-0509-140-OWI.pdf (accessed July 22, 2011).
45. “Overweight children are at risk for a number of medical problems, including hypertension, asthma, and Type 2 diabetes, a disease that previously has been found primarily in adults. Since 1980, the proportion of overweight children ages six to eleven has more than doubled to 15.3%; for adolescents, the rate has tripled to 15.5%.” [Linn and Golin, “Beyond Commercials,” pp. 13-14]
46. Federal Trade Commission, Marketing Food to Children and Adolescents: A Review of Industry Expenditures, Activities, and Self-Regulation (Washington, D.C.: Federal Trade Commission, 2008), http://www.ftc.gov/os/2008/07/P064504foodmktingreport.pdf (accessed July 22, 2011).
47. FTC Improvements Act of 1980, Pub. L. No. 96- 252, Sections 11(a)(1), 11(a)(3), 94 Stat. 374 (1980), codified in part at 15 U.S.C. §57a(i).
48. Molnar et al., Effectively Embedded.
49. Allen D. Kanner, “Today’s Class Brought to You by…,” Tikkun, January-February 2009, pp. 25-26, http://www.commercialfreechildhood.org/articles/featured/todaysclass.pdf (accessed July 22, 2011).
50. American Petroleum Institute, “Progress Through Petroleum,” http://www.classroom-energy.org/oil_natural_gas/progress_through_petroleum/index.html# (accessed August 17, 2011).
51. Ibid.
52. Ibid.
53. Center for Science in the Public Interest, “Corporate-School Partnerships Good for Profits, Not Kids,” September 25, 2002, http://www.cspinet.org/new/200209252. html (accessed July 22, 2011); Coca-Cola Company, “Mission, Vision & Values,” 2010, http://www.thecoca-colacompany.com/ourcompany/mission_vision_values.html (accessed July 22, 2011).
54. U.S. Government Accountability Office, “For-Profit Colleges: Undercover Testing Finds Colleges Encouraged Fraud and Engaged in Deceptive and Questionable Marketing Practices,” August 4, 2010, http://www.gao.gov/products/GAO-10-948T (accessed July 22, 2011).
55. Ibid.
56. Ibid.
57. Tom Harkin, “For-Profit College Investigation,” Tom Harkin, Iowa’s Senator (newsletter), n.d., http://harkin.senate.gov/forprofitcolleges.cfm (accessed July 22, 2011).
58. Ibid.
59. Statement of Senator Tom Harkin, chairman of the Senate Committee on Health, Education, Labor, and Pensions, March 10, 2011.
60. Tamar Lewin, “Hearing Sees Financial Success and Education Failures of For-Profit College,” New York Times, March 10, 2011, http://www.nytimes.com/2011/03/11/education/11college.html (accessed August 17, 2011).
61. Ibid.
62. Tamar Lewin, “Flurry of Data as Rules Near for Commercial Colleges,” New York Times, February 4, 2011, http://www.nytimes.com/2011/02/04/education/04colleges.html?pagewanted=print Page (accessed July 23, 2011).
Chapter Three: If Corporations Are Not People, What Are They?
1. Victor Hugo, Les Miserables: A Novel, trans. Charles Wilbour (New York: Carelton, 1862), p. 95.
2. Citizens United, 24.
3. First National Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978).
4. Consolidated Edison Co. of New York v. Public Service Commission of New York, 447 U.S. 530, 540 (1980). Justice Rehnquist joined Justice Blackmun in dissent: “Because of Consolidated Edison’s monopoly status and its rate structure, the use of the [informational] insert [in the utility bills] amounts to an exaction from the utility’s customers by way of forced aid for the utility’s speech.” [549]
5. Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 570 (1980). It took Justice Rehnquist in dissent to make clear that a “public utility is a state-created monopoly,” and the Court failed to recognize that the state law is most accurately viewed as an economic regulation,” not a “speech” restriction.
6. Lorillard v. Reilly, 53 U.S. 525 (2001) (Thomas, concurring). By contrast, Justice O’Connor’s opinion of the Court described the cigarette manufacturers by straightforward reference to their corporate names.
7. Coors and its controlling family were active for many years in building the corporate rights offensive. In the 1970s, not long after the Powell memo to the Chamber of Commerce, Joseph Coors, the Coors Charitable Foundation, and eighty-seven corporations helped start and fund an organization called the Heritage Foundation.
8. Rubin v. Coors Brewing Co., 514 U.S. 476, 479 (1995). “Respondent” refers to the party that won the case in the federal court below the Supreme Court and is “responding” to the other party’s appeal.
9. “A corporation is a legal entity created through the laws of its state of incorporation.” Cornell University Law School, Legal Information Institute, “Corporations: An Overview,” n.d., http://topics.law.cornell.edu/wex/Corporations (accessed July 23, 2011).
10. Harry G. Henn and John R. Alexander, Law of Corporations, 3rd ed. (Saint Paul, Minn.: West, 1991).
11. Kent Greenfield, The Failure of Corporate Law (Chicago: University of Chicago Press, 2006), pp. 30-33. Greenfield reviews and demolishes the claims of those who characterize corporations as the natural product of private contract and who discount the public interest in the corporation.
12. “Those who feel that the essence of the corporation rests in the contract among its members rather than in the government decree … fail to distinguish, as the eighteenth century did, between the corporation and the voluntary association.” [Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the Americ
an Economy: Massachusetts, 1774-1861 (Cambridge, Mass.: Belknap Press, 1961; originally published 1947), p. 92 and n. 18.]
13. See, for example, Virginia Statutes, §13.1-812, making it “unlawful for any person to transact business in the Commonwealth as a corporation or to offer or advertise to transact business in the Commonwealth as a corporation unless the alleged corporation is either a domestic corporation or a foreign corporation authorized to transact business in the Commonwealth. Any person who violates this section shall be guilty of a Class 1 misdemeanor.”
14. “More than 50% of all publicly-traded companies in the United States including 63% of the Fortune 500 have chosen Delaware as their legal home,” according to the state’s Web site, http://www.corp.delaware.gov/aboutagency.shtml. See also Greenfield, Failure of Corporate Law, pp. 107-108.
15. Greenfield, Failure of Corporate Law, pp. 107-108. Greenfield’s book offers a compelling case that in either event, the dominance by Delaware of the laws of incorporation for large companies is undemocratic and creates detrimental results for all of us.
Corporations Are Not People Page 21