Corporations Are Not People

by Jeffrey D. Clements

  16. Delaware Code, Annotated title 8, §102.

  17. Ibid.

  18. Increasing numbers of people are calling for a similar approach, whereby corporations would have to justify the corporate advantages granted by the people and come in for charter renewal based on their public benefits and compliance with the law. Links to these efforts are set out in the Resources section following Chapter Seven.

  19. Marshall v. Baltimore and Ohio Railroad Co., 57 U.S. 314 (1853).

  20. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (Rehnquist, dissenting).

  21. Santa Clara County v. Southern Pacific Railroad Co., 118 U.S. 394 (1886), did not decide the corporate personhood question or any federal constitutional question. (“As the judgment can be sustained upon this [state law] ground it is not necessary to consider any other questions raised by the pleadings and the facts found by the court”; 416.)

  22. Among the most thorough descriptions of the strange story of Santa Clara and the Supreme Court are Thom Hartmann’s Unequal Protection: How Corporations Became “People” and How You Can Fight Back, 2nd ed. (San Francisco: Berrett-Koehler, 2010) and Ted Nace’s Gangs of America: The Rise of Corporate Power and the Disabling of Democracy (San Francisco: Berrett-Koehler, 2003).

  23. See Pembina Consolidated Silver Mining and Milling Co. v. Commonwealth of Pennsylvania, 125 U.S. 81, 188-189 (1888); Missouri Pacific Railway Co. v. Mackey, 127 U.S. 205 (1888); Minneapolis & Saint Louis Railway Co. v. Herrick, 127 U.S. 210 (1888); Minneapolis & Saint Louis Railway Co. v. Beckwith, 129 U.S. 26 (1889); Charlotte, Columbia and Augusta Railroad Co. v. Gibbes, 142 U.S. 386 (1892); Covington and Lexington Turnpike Road Co. v. Sandford, 164 U.S. 578 (1896); Gulf, Colorado and Santa Fe Railway Co. v. Ellis, 165 U.S. 150 (1897); and Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544 (1923).

  24. Henn & Alexander, Law of Corporations, p. 24 and n. 2, citing Edwin Merrick Dodd, American Business Corporations Until 1860 (1954); Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations (1917); Simeon E. Baldwin, “American Business Corporations Before 1789,” in Annual Report of the American Historical Association, pp. 253-274 (1902). See also Handlin and Handlin, Commonwealth, pp. 99, 162.

  25. Handlin and Handlin, Commonwealth, pp. 106-133; Louis K. Liggett Co. v. Lee, 288 U.S. 517, 548-560 (1933) (Brandeis, dissenting).

  26. Restrictions on corporate purposes were the norm. See ibid. See also Head and Amory v. Providence Insurance Co., 6 U.S. (2 Cranch) 127, 166-167 (1804) (“a corporation can only act in the manner prescribed by law”).

  27. James Wilson, “Of Corporations,” in Collected Works of James Wilson, ed. Kermit L. Hall and Mark David Hall (Indianapolis, Ind.: Liberty Fund, 2007), vol. 2, ch. 10, http://oll.libertyfund.org/title/2074/166648/2957866 (accessed July 22, 2009).

  28. Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 636 (1819).

  29. Hope Insurance Co. v. Boardman, 9 U.S. (5 Cranch) 57, 58 (1809).

  30. Bank of Augusta v. Earle, 38 U.S. 519, 587 (1839).

  31. Pembina Consolidated Silver Mining and Milling Co. v. Commonwealth of Pennsylvania, 125 U.S. 181, 188-189 (1888).

  32. Grover Cleveland, “Fourth Annual Message to Congress (December 3, 1888),” Miller Center, http://millercenter.org/scripps/archive/speeches/detail/3758 (accessed July 24, 2011).

  33. Theodore Roosevelt, Theodore Roosevelt: An Autobiography (New York: Scribner, 1929 (originally published 1913), p. 423; Theodore Roosevelt, “Sixth Annual Message to Congress (December 3, 1906),” Miller Center, http://millercenter.org/scripps/archive/speeches/detail/3778 (accessed July 24, 2011).

  34. Roosevelt, Roosevelt, p. 425. And he went further, writing supportively of the Progressive reformers: “They realized that the Government must now interfere to protect labor, to subordinate the big corporation to the public welfare, and to shackle cunning and fraud exactly as centuries before it had interfered to shackle the physical force which does wrong by violence.” [p. 425]

  35. Theodore Roosevelt, speech delivered August 31, 1910, cited in Hartmann, Unequal Protection, p. 161.

  36. Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77, 85-87.

  37. United States v. Morton Salt Co., 338 U.S. 632, 651-652 (1950).

  38. Kentucky Constitution, §150 (1891): If any corporation shall, directly or indirectly, offer, promise or give, or shall authorize, directly or indirectly, any person to offer, promise or give any money or any thing of value to influence the result of any election in this State, or the vote of any voter authorized to vote therein, or who shall afterward reimburse or compensate, in any manner whatever, any person who shall have offered, promised or given any money or other thing of value to influence the result of any election or the vote of any such voter, such corporation, if organized under the laws of this Commonwealth, shall, on conviction thereof, forfeit its charter and all rights, privileges and immunities thereunder; and if chartered by another State and doing business in this State, whether by license, or upon mere sufferance, such corporation, upon conviction of either of the offenses aforesaid, shall forfeit all right to carry on any business in this State; and it shall be the duty of the General Assembly to provide for the enforcement of the provisions of this section.

  39. First National Bank of Boston v. Bellotti, 435 U.S. 765, 826 and n.6 (Rehnquist, dissenting)

  40. Ibid., 822-23.

  41. Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

  42. Ibid., 658-659 (1990), quoting Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238, 257 (1986).

  43. McConnell v. Federal Election Commission, 540 U.S.93, 205 (2002).

  44. Charlie Cray, “Using Charters to Redesign Corporations in the Public Interest,” in William H. Wist, ed., The Bottom Line or Public Health (Oxford: Oxford University Press, 2010), http://www.corporatepolicy.org/pdf/CrayCharters2010.pdf (accessed June 13, 2011).

  Chapter Four: Corporations Don’t Vote; They Don’t Have To

  1. Murray Hill Inc., “Supreme Court Ruling Spurs Corporation Run for Congress; First Test of ‘Corporate Personhood’ in Politics,” January 25, 2010, http://www.murrayhillweb.com/pr-012510.html (accessed March 24, 2011).

  2. Ibid.

  3. In a comprehensive 2011 poll conducted by Hart Research Associates and Free Speech for People, only 7 percent of respondents thought that the American people were on a “fair and level” playing field with corporations in our political system, 61 percent worried “a great deal” or “quite a bit” that corporations have too much influence and control over government, and 80 percent support a constitutional amendment to overturn Citizens United and make clear that corporations do not have the same rights as people. Even before Citizens United, barely a third of Americans agreed with the statement “Most elected officials care what people like me think.” Half of Americans who are eligible to vote in elections do not even bother to cast a vote, a bare-minimum effort asked of a citizen in a republic.

  4. Center for Responsive Politics. “Lobbying: Top Spenders, 1998-2011”; U.S. Chamber of Commerce, “Thomas J. Donohue,” http://www.uschamber.com/about/board/donohue.htm (accessed July 24, 2011); Tom Hamburger, “Chamber of Commerce Vows to Punish Anti-Business Candidates,” Los Angeles Times, January 8, 2008, http://www.latimes.com/entertainment/la-na-chamber8jan08,0,454295.story (accessed April 14, 2011).

  5. U.S. Chamber Watch inspected Chamber of Commerce tax and other filings. See its findings at U.S. Chamber Watch, “The U.S. Chamber: A Multimillion-Dollar Shell Game,” 2011, http://www.fixtheuschamber.org/news/news/inside-chambers-million-dollar-shell-game (accessed April 14, 2011), and U.S. Chamber Watch, “Beyond the $86 Million Buyout: What Else We Found in the Chamber’s 990s,” November 17, 2010, http://www.fixtheuschamber.org/tracking-the-chamber/beyond-86-million-buyout-what-else-we-found-chambers-990s (accessed April 14, 2011).

  6. Ibid.

  7. Trevor Potter, quoted in Drew Armstrong, “Insurers
Gave U.S. Chamber $86 Million Used to Oppose Obama’s Health Law,” Bloomberg News, November 17, 2010, http://www.bloomberg.com/news/2010-11-17/insurers-gave-u-s-chamber-86-million-used-to-oppose-obama-s-health-law.html (accessed April 4, 2011).

  8. Health Care for America Now, “Breaking the Bank: CEOs from 10 Health Insurers Took Nearly $1 Billion in Compensation, Stock from 2000 to 2009,” August 2010, http://hcfan.3cdn.net/684f3fa81c1e757518_01m6bxg6s.pdf (accessed March 28, 2011).

  9. Wendell Potter, Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR Is Killing Health Care and Deceiving Americans (New York: Bloomsbury Press, 2010), pp. 136-141.

  10. Keith Johnson, “Exodus: Apple Leaves Chamber of Commerce over Climate Spat,” Wall Street Journal, October 5, 2009, http://blogs.wsj.com/environmentalcapital/2009/10/05/exodus-apple-leaves-chamber-of-commerce-over-climate-spat/ (accessed April 14, 2011).

  11. Glenn Spencer, “Citizens United, Election Spending, and the DISCLOSE Act,” Chamberpost, July 8, 2010, http://www.chamberpost.com/2010/07/citizens-united-election-spending-and-the-disclose-act/ (accessed April 14, 2011).

  12. Quoted in Ryan J. Reilly, “Citizens United President Enjoys ‘Bitching and Moaning’ over Supreme Court Case,” TPMMuckraker, December 1, 2010, http://tpmmuckraker.talkingpointsmemo.com/2010/12/citizens_united_president_enjoys_bitching_and_moan.php (accessed April 14, 2011).

  13. Gerald Mayer, “Union Membership Trends in the United States,” Federal Publications, paper no. 174, August 31, 2004, http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1176&context=key_workplace (accessed April 15, 2011).

  14. Jon Youngdahl, “No Secrets Surrounding SEIU’s Political Contributions” (letter), Washington Post, October 21, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/10/20/AR2010102004912.html (accessed April 15, 2011).

  15. Michael J. Carden, “National Debt Poses Security Threat, Mullen Says,” U.S. Department of Defense, News, August 27, 2010, http://www.defense.gov/news/newsarticle.aspx?id=60621 (accessed April 28, 2011).

  16. Congressional Budget Office, “Options for Reducing the Deficit,” March 2011, http://www.cbo.gov/ftpdocs/120xx/doc12085/03-10-ReducingTheDeficit.pdf (accessed March 29, 2011).

  17. Pew Charitable Trusts, “The Great Debt Shift: Drivers of Federal Debt Since 2001,” April 2011, http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Fact_Sheets/Economic_Policy/drivers_federal_debt_since_2001.pdf (accessed June 13, 2011).

  18. Bipartisan Policy Center Debt Reduction Task Force, “Restoring America’s Future: Executive Summary,” November 2010, http://bipartisanpolicy.org/sites/default/files/FINAL%20DRTF%20EXECUTIVE%20SUMMARY_0.pdf (accessed March 29, 2011).

  19. Chris Hellman, National Priorities Project, “$1.2 Trillion for National Security,” March 1, 2011, http://nationalpriorities.org/en/pressroom/articles/2011/03/01/tomgram-chris-hellman-12-trillion-for-national-sec/ (accessed August 28, 2011).

  20. Tax revenues came to 15 percent of GDP in 2009. National Commission on Fiscal Responsibility and Reform, “The Moment of Truth,” December 2010, http://www.fiscalcommission.gov/sites/fiscalcommission.gov/files/documents/

  TheMomentofTruth12_1_2010.pdf (accessed July 25, 2011).

  21. Congressional Budget Office, “Preliminary Analysis of the President’s Budget for 2012,” March 2011, http://www.cbo.gov/doc.cfm?index=12103 (accessed March 29, 2011).

  22. Cato Institute, Cato Handbook for Policymakers, 7th ed. (Washington, D.C.: Cato Institute, 2010), p. 279, http://www.cato.org/pubs/handbook/hb111/hb111-26.pdf (accessed April 15, 2011); Public Citizen, “Corporate Welfare,” http://www.citizen.org/congress/welfare/index.cfm (accessed April 15, 2011).

  23. Chris Edwards, “Agriculture Subsidies,” Cato Institute, June 2009, http://www.downsizinggovernment.org/agriculture/subsidies (accessed March 31, 2011).

  24. ProPublica, “Bailout Score Card,” http://projects.propublica.org/bailout/main/summary (accessed March 30, 2011).

  25. SourceWatch, “Portal:Real Economy Project,” February 14, 2011, http://www.sourcewatch.org/index.php?title=Portal:Real_Economy_Project (accessed September 6, 2011).

  26. Theo Emery, “GE Jet Engine Program Survives House Bill,” Boston Globe, May 27, 2011, http://www.boston.com/news/politics/articles/2011/05/27/ge_jet_engine_program_

  survives_house_bill/?p1=News_links (accessed May 27, 2011).

  27. Organisation for Economic Cooperation and Development, “OECD Health Data, 2011: Frequently Requested Data,” http://www.oecd.org/document/16/0, 3343, en_2649_33929_2085200_1_1_1_1,00.html (accessed August 1, 2011).

  28. CBS News and New York Times, “American Public Opinion: Today vs. 30 Years Ago,” February 1, 2009, http://www.cbsnews.com/htdocs/pdf/SunMo_poll_0209.pdf (59% favor government health insurance); Henry J. Kaiser Family Foundation, “Public Opinion on Health Care Issues,” July 2009, http://www.kii.org/kaiserpolls/upload/7945.pdf (single-payer government plan favored by 50%); Ricardo Alonso-Zaldivar and Janet Hook, “Times/Bloomberg Poll: Obama Healthcare Ideas Favored,” October 25, 2007, http://articles.latimes.com/2007/oct/25/nation/na-poll25/2 (53% want “government-run, government-financed health insurance program that would cover all Americans”); Physicians for a National Health Program, “Where Are We on Reform?” December 31, 2007, http://www.pnhp.org/news/2007/december/where_are_we_on_refo.php (54% support a “single-payer health care system that is a national health plan financed by taxpayers in which all Americans would get their insurance from a single government plan”). All sites accessed July 25, 2011.

  29. Jacob S. Hacker 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), p. 31: Among rich nations, “the U.S. has the highest rate of preventable death before age seventy-five” and has fewer doctors, hospital beds, and nurses per person.

  30. See Olga Pierce, “Medicare Drug Planners Now Lobbyists, with Billions at Stake,” ProPublica, October 20, 2009, http://www.propublica.org/article/medicare-drug-planners-now-lobbyists-with-billions-at-stake-1020 (accessed March 29, 2011).

  31. Robert G. Kaiser, So Damn Much Money (New York: Vintage Books, 2009), p. 309.

  32. Robert Pear, “House’s Author of Drug Benefit Joins Lobbyists,” New York Times, December 14, 2011, http://query.nytimes.com/gst/fullpage.html?res=9C00E2DF1430 F935A25751C1A9629C8B63&pagewanted=all (accessed April 28, 2010).

  33. Pierce, “Medicare Drug Planners Now Lobbyists.”

  34. Kaiser, So Damn Much Money, p. 366.

  35. Robert Reich, “The White House Deal with Big Pharma Undermines Democracy, Healthcare Reform,” Salon, August 10, 2009, http://www.salon.com/news/opinion/feature/2009/08/10/pharma (accessed March 23, 2010).

  36. Potter, Deadly Spin, pp. 68-72.

  37. Ibid., front cover.

  38. Environmental Law Institute, “Estimating U.S. Government Subsidies to Energy Sources, 2002-2008,” September 2009, http://www.elistore.org/Data/products/d19_07.pdf (accessed April 20, 2011).

  39. George W. Bush, “President Addresses the American Society of Newspaper Editors Convention,” April 14, 2005, http://georgewbush-whitehouse.archives.gov/news/releases/2005/04/20050414-4.html (accessed April 1, 2011).

  40. Richard Milhouse Nixon, “State of the Union Address (January 30, 1974),” http://millercenter.org/scripps/archive/speeches/detail/3887; Gerald Rudolph Ford, “Address on Energy Policy (May 27, 1975),” http://millercenter.org/scripps/archive/speeches/detail/3985; Jimmy Carter, “Address to the Nation on Energy (April 18, 1977),” http://millercenter.org/scripps/archive/speeches/detail/3398 (all accessed April 1, 2011).

  41. “Energy Security: President Reagan’s Message to the Congress, May 6, 1987,” http:// findarticles.com/p/articles/mi_m1079/is_v87/ai_5171542/?tag=content;col1; George H. W. Bush, “State of the Union Address (January 29, 1991),” http://millercenter.org/scripps/archive/speeches/detail/3429; Bill Clinton, “State of the Union Address (January 27, 1998),” http://millercenter.or
g/scripps/archive/speeches/detail/3444; George W. Bush, “State of the Union Address (January 31, 2006)” http://millercenter.org/scripps/archive/speeches/detail/4461 and “State of the Union Address (January 8, 2008), “http://georgewbush-whitehouse.archives.gov/news/releases/2008/01/20080128-13.html; Barack Obama, “Address Before a Joint Session of Congress (February 24, 2009),” http://millercenter.org/scripps/archive/speeches/detail/4612 (all accessed April 1, 2011).

  42. Testimony of R. James Woolsey, U.S. House of Representatives Select Committee on Energy Independence and Global Warming, Hearings on Geopolitical Implications of Rising Oil Dependence and Global Warming, April 18, 2007, http://www.globalwarming.house.gov/tools/assets/files/0117.pdf (accessed April 20, 2011); Center for Public Integrity, “Foreign Oil Dependence Has Grown,” n.d., http://www.publicintegrity.org/investigations/broken_government/articles/entry/1002/ (accessed April 2, 2011).

  43. See the American Coalition for Clean Coal Electricity, “Facts & Figures: Almost Half of America’s Electricity Generation,” http://www.cleancoalusa.org/about-us-almost-half-america’s-electricity-generation (accessed April 1, 2011).

  44. Paul R. Epstein and others, “Full Cost Accounting for the Life Cycle of Coal,” Annals of the New York Academy of Sciences 1291 (February 17, 2011): 73-98, http://onlinelibrary.wiley.com/doi/10.1111/j.1749-6632.2010.05890.x/full (accessed March 27, 2011).

  45. Ibid.

  46. Environmental Protection Agency, “Mercury Maps: Linking Air Deposition and Fish Contamination on a National Scale,” January 2005, http://water.epa.gov/type/watersheds/datait/maps/fs.cfm (accessed April 21, 2011):

  As of December 2003, 45 states had issued fish advisories for mercury covering more than 13,000, 000 lake acres and over 750,000 river miles. Atmospheric deposition of mercury is a primary route of transport of mercury to water. Mercury air emissions from coal-fired power plants, waste incinerators, mercury cell chlorine manufacturing facilities, and other sources can be transported long distances before ultimately depositing on watersheds and water bodies.