Corporations Are Not People

by Jeffrey D. Clements

  47. Matthew L. Wald, “Stimulus Money Puts Clean Coal Projects on a Faster Track,” New York Times, March 16, 2009, http://www.nytimes.com/2009/03/17/business/energy-environment/17coal.html (accessed August 30, 2011). Also see Taxpayers for Common Sense, “Clean Coal Gets Boost in House and Senate Stimulus Bills,” January 30, 2009, http://www.taxpayer.net/search_by_tag.php?action=view&proj_id=1842&tag=coal%20subsidies&type=Project (accessed August 18, 2011).

  48. Epstein and others, “Full Cost Accounting.”

  49. Pew Center on Global Climate Change, “Climate Change 101: Understanding and Responding to Global Climate Change,” January 2011, http://www.pewclimate.org/docUploads/climate101-fullbook_0.pdf (accessed April 4, 2011).

  50. Center for Public Integrity, “No Robust, Sustained Alternative Energy Policy,” n.d., http://www.publicintegrity.org/investigations/broken_government/articles/entry/

  no_robust_sustained_alternative_energy_policy/ (accessed April 2, 2011).

  51. Center for Responsive Politics, “Lobbying: Top Industries, 1998-2011.”

  52. Jim Snyder, “Oil Group Starts Political Giving as Congress Weighs Repeal of Tax Breaks,” Bloomberg, February 24, 2011, http://www.bloomberg.com/news/2011-02-24/oil-group-starts-political-giving-as-congress-eyes-subsidies.html (accessed April 20, 2011).

  53. “If you tried to fill 25 feet of the Hudson River, we would put you in jail.” Quoted in Paul de Barros, “Robert Kennedy Jr. Says West Virginia Coal Industry out of Control in Documentary,” Seattle Times, July 21, 2011, http://www.dfw.com/2011/07/21/484290/robert-kennedy-jr-says-west-virginia.html (accessed July 27, 2011).

  54. Epstein and others, “Full Cost Accounting”:

  More than 500 mountains have been obliterated, the adjacent valleys filled, in Kentucky, Virginia, West Virginia, and Tennessee, completely altering some 1.4 million acres, burying 2,000 miles of streams. In Kentucky alone, there are 293 MTR [mountain top removal] sites, over 1,400 miles of streams damaged or destroyed, and 2, 500 miles of streams polluted. Valley fill and other surface mining practices associated with MTR bury headwater streams and contaminate surface and groundwater with carcinogens and heavy metals and are associated with reports of cancer clusters, a finding that requires further study.

  55. I Love Mountains, http://www.ilovemountains.org; Appalachian Voices, http://www.appvoices.org; Kentucky Riverkeeper, http://www.appalachianstudies.eku.edu/kyriverkeeper/; Waterkeeper Alliance, http://www.waterkeeper.org.

  56. Robert Kennedy Jr., “RFK Jr. on Citizens United” (video), June 11, 2011, http://www.freespeechforpeople.org; also available at http://www.youtube.com/watch?v=1k-DxVzq (accessed June 22, 2011).

  57. “Harlan County, Kentucky: What Happened to Elmer’s Fish Pond?” September 8, 2009, http://www.youtube.com/watch?v=VuPyevfufCE (accessed June 22, 2011).

  58. Quoted in Mark Baller and Leor Joseph Pantilat, “Defenders of Appalachia: The Campaign to Eliminate Mountaintop Removal Coal Mining and the Role of Public Justice,” 37 Envtl. L. 629, 640 (2007), http://legacy.lclark.edu/org/envtl/objects/37-3_Pantilat.pdf (accessed July 27, 2011).

  59. Bragg v. Robertson et al., Civil Action No. 2:98-0636 (U.S. D. Ct. S.D. W.Va.), Memorandum Opinion and Order Granting Preliminary Injunction, March 3, 1999.

  60. Bragg v. West Virginia Coal Association, 248 F.3d 275, 285 (4th Cir. 2001).

  61. Francis X. Clines, “Judge Takes on Bush on Mountaintop Mining,” New York Times, May 19, 2002, http://www.nytimes.com/2002/05/19/national/19STRI.html (accessed April 21, 2011); Kentuckians for the Commonwealth v. Rivenburgh (KFTC I), 204 F. Supp. 2d 927, 946 (S.D. W.Va. 2002).

  When the longstanding practice was challenged, the agencies undertook to change the rule so streams could be filled as immense waste dumps if the disposal had the “effect” of filling the waters of the United States…. Regulators were pushing ahead rapidly to change the rules, without regard for the purposes, policy, history, or language of Act itself. [vacated, 317 F.3d 425 (4th Cir. 2003)]

  62. Kennedy, “RFK Jr. on Citizens United.”

  63. John Cheves, “Coal Execs Hope to Spend Big Under New Rules to Defeat Conway and Chandler,” Bluegrass Politics, July 28, 2010, http://bluegrasspolitics.bloginky.com/2010/07/27/coal-execs-hope-to-spend-big-under-new-rules-to-defeat-conway-and-chandler/ (accessed April 21, 2011).

  Chapter Five: Did Corporate Power Destroy the Working American Economy?

  1. Stephen Haber, “Introduction: The Political Economy of Crony Capitalism,” in Crony Capitalism and Economic Growth in Latin America: Theory and Evidence, ed. Stephen Haber (Stanford, Calif.: Hoover Institution Press, 2002), pp. xii-xv.

  2. American Sustainable Business Council, “Business for Democracy: Who’s Already on Board,” http://asbcouncil.org/Business_For_Democracy.html (accessed July 28, 2011). Business for Democracy was launched by the American Sustainable Business Council, which is working in partnership with Free Speech for People on the People’s Rights Amendment campaign.

  3. James Roberts, “Cronyism: Undermining Economic Freedom and Prosperity Around the World,” Heritage Foundation, August 9, 2010, http://origin.heritage.org/Research/Reports/2010/08/Cronyism-Undermining-Economic-Freedom-and-Prosperity-Around-the-World (accessed July 28, 2011).

  4. Robert Monks, quoted in Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (New York: Free Press, 2004), p. 70.

  5. Roosevelt, Roosevelt, p. 425.

  6. There have been many convincing descriptions of this phenomenon in recent years. See, for example, Hacker and Pierson, Winner-Take-All Politics; Robert Kuttner, The Squandering of America (New York: Knopf, 2007); Paul Krugman, Conscience of a Liberal (New York, Norton, 2007); and Joseph E. Stiglitz, Freefall (New York: Norton, 2010).

  7. U.S. Census Bureau, “State & County QuickFacts,” June 3, 2011, http://quickfacts.census.gov/qfd/states/00000.html (accessed June 15, 2011).

  8. Hacker and Pierson, Winner-Take-All Politics, p. 3.

  9. Inequality.org, “By the Numbers,” n.d., http://www.demos.org/inequality/numbers.cfm (accessed June 19, 2011).

  10. “From 1973 to today, the top 5 percent of income earners have seen their wages rise by over 31 percent while the workers in the tenth percentile of income-earners (earning the lowest wage) have seen their wages increase by only 1 percent.” Kurt Greenfield, The Failure of Corporate Law (Chicago: University of Chicago Press, 2006), p. 155.

  11. Jared Bernstein and Karen Kornbluh, Running Faster to Stay in Place: The Growth of Family Work Hours and Income (Washington, D.C.: New America Foundation, June 2005, http://www.newamerica.net/files/nafmigration/archive/Doc_File_2437_1.pdf (accessed July 29, 2011): “Between 1970 and 2000, the percentage of mothers in the workforce rose from 38% to 67%.”

  12. Economic Policy Institute, “Wealth Flows to the Wealthiest as the Percentage of Americans Who Own Stock Falls,” August 2006, http://www.epi.org/page/-/old/newsroom/releases/2006/08/SWApr-wealth-200608-final.pdf (accessed April 21, 2011).

  13. Greenfield, Failure of Corporate Law, p. 156.

  14. Gregory Leo Nagel, “The Effect of Labor Market Demand on U.S. CEO Pay Since 1980,” Financial Review, August 19, 2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1095690 (accessed August 17, 2011).

  15. Richard McCormack, “The Plight of American Manufacturing,” American Prospect, December 21, 2009, http://prospect.org/cs/articles?article=the_plight_of_american_manufacturing (accessed April 3, 2011).

  16. Ibid.

  17. Bernstein and Kornbluh, Running Faster.

  18. Ron Rittenmeyer, chair of Electronic Data Systems, quoted in Brian Jackson, “EDS Says Offshoring Great for Profitability, Promises to Continue,” ITBusiness.ca (Canada), April 23, 2008, http://www.itbusiness.ca/it/client/en/home/News.asp?id=48091 (accessed July 29, 2011).

  19. Bernstein and Kornbluh, Running Faster.

  20. Robert Frank, an economics professor at Cornell University, has explored the relationship between income disparities and financial distress; links to his wo
rk are available at http://www.robert-h-frank.com/ (accessed April 12, 2011).

  21. Massachusetts today remains one of only eight states with a flat income tax rate. Urban Institute and Brookings Center, Tax Policy Center Report, March 2007, http://www.taxpolicycenter.org/publications/url.cfm?ID=1001064 (accessed April 2, 2011).

  22. John Chesto, “Procter & Gamble Unveils Plans to Cut 215 Jobs from Its Gillette Factory in South Boston over Five Years,” Patriot Ledger, August 7, 2008, http://www.patriotledger.com/business/x1280301726/Procter-Gamble-unveils-plans-to-cut-215-jobs-from-its-Gillette-factory-in-South-Boston-over-five-years (accessed June 15, 2011).

  23. “Fat Merger Payouts for CEOs,” Business Week, December 12, 2005, http://www.businessweek.com/magazine/content/05_50/b3963106.htm (accessed June 15, 2001).

  24. United for a Fair Economy, “Shareholders Press BankBoston on CEO Pay, Golden Parachutes, Layoffs After Fleet Merger,” April 20, 1999, http://www.faireconomy.org/press_room/1999/shareholders_press_bankboston_on_

  ceo_pay_after_fleet_merger (accessed June 15, 2011); “13,000 Job Cuts Loom in Merger; FleetBoston, BofA Shareholders OK Giant Bank Deal,” San Francisco Chronicle, March 18, 2004, http://articles.sfgate.com/2004-03-18/business/17417500_1_banking-resources-america-spokeswoman-eloise-hale-job-cuts (accessed June 15, 2011); Report of Trillium Asset Management available at http://trilliuminvest.com/resolutions/lending-4/ (accessed June 15, 2011).

  25. “Digital May Fire 15,000; Major Restructuring If Buyout by Compaq Okd,” San Francisco Chronicle, May 7, 1998, http://articles.sfgate.com/1998-05-07/business/17722530_1_chief-executive-robert-palmer-digital-compaq (accessed June 15, 2011).

  26. Kerr, Corporate Free Speech Movement.

  27. AFL-CIO, “Trends in CEO Pay,” 2011, http://www.aflcio.org/corporatewatch/paywatch/pay/ (accessed March 30, 2011).

  28. The rare exceptions are those affiliated with national lobbying groups such as Emily’s List or the National Association of Broadcasters.

  29. Thomas Edsall, “Obama Seeks to Kill Hedge Fund Tax Break,” Huffington Post, February 26, 2009, http://www.huffingtonpost.com/2009/02/26/will-the-taxman-cometh_n_170082.html (accessed March 30, 2011).

  30. Ibid.

  31. Charles Ferguson’s film Inside Job is a devastatingly accurate telling of the Citigroup story and Wall Street’s takeover of the government that should have been regulating the financial markets.

  32. Del Jones and Edward Iwata, “CEO Pay Takes a Hit in Bailout Plan,” USA Today, September 9, 2008, http://www.usatoday.com/money/companies/management/2008-09-28-executive-pay-ceo_N.htm (accessed June 15, 2011).

  33. Strategic Management, “As Citigroup Increases Its High-Skilled Headcount in India, Will Others Follow?” http://knowledge.wharton.upenn.edu/india/article.cfm?articleid=4187 (accessed April 11, 2011).

  34. Mitchell Martin, “Citicorp and Travelers Plan to Merge in Record $70 Billion Deal: A New No. 1: Financial Giants Unite,” April 7, 1998, http://www.nytimes.com/1998/04/07/news/07iht-citi.t.html (accessed April 11, 2011).

  35. “The Long Demise of Glass-Steagall,” Wall Street Fix, PBS, May 8, 2003, http://www.pbs.org/wgbh/pages/frontline/shows/wallstreet/weill/demise.html (accessed April 11, 2011).

  36. Martin, “Citicorp and Travelers.”

  37. Eric Dash and Louise Story, “Rubin Leaving Citigroup; Smith Barney for Sale,” January 9, 2009, http://www.nytimes.com/2009/01/10/business/10rubin.html?_r=1&hp=&adxnnl=1&adxnnlx=1302539819-6L7mz3lTxoRdG8bYITETvQ (accessed April 11, 2011).

  38. Ibid.

  39. Hacker and Pierson, Winner-Take-All Politics, p. 69.

  40. Stiglitz, Freefall, p. 162.

  41. Ibid.

  42. Robert B. Ekelund and Mark Thornton, “More Awful Truths About Republicans,” Ludwig von Mises Institute, September 4, 2008, http://mises.org/daily/3098 (accessed June 15, 2011).

  43. David Corn, “Foreclosure Phil,” Mother Jones, Spring 2008, http://motherjones.com/politics/2008/05/foreclosure-phil (accessed April 11, 2011).

  44. To resolve a federal criminal investigation of its conduct in 2009, UBS admitted that “beginning in 2000 and continuing until 2007, UBS… participated in a scheme to defraud the United States and its agency, the IRS, by actively assisting” rich customers to conceal assets at UBS in order to avoid taxes that otherwise were due to the United States. See United States v. UBS, U.S. S.D. Fla., 09-60033-CR, Deferred Prosecution Agreement.

  45. Corn, “Foreclosure Phil.”

  46. Patrice Hill, “McCain Adviser Talks of ‘Mental Recession,’” Washington Times, July 9, 2008, http://www.washingtontimes.com/news/2008/jul/09/mccain-adviser-addresses-mental-recession/ (accessed April 11, 2011).

  Chapter Six: Corporations Can’t Love

  1. James Madison, Virginia Ratifying Convention, June 20, 1788, http://press-pubs.uchicago.edu/founders/documents/v1ch13s36.html (accessed April 28, 2011).

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

  3. Bank of America (admitted to illegal bid rigging in municipal bond market); United States v. General Motors, 186 F.2d 562 (1951) (convicted of conspiracy to destroy public transportation); United States v. General Motors Corp., 121 F.2d 376 (1941), cert. denied 314 U.S. 618 (1941), rehearing denied, 314 U.S. 710 (1941) (criminal antitrust conviction upheld); United States v. Credit Suisse (2009) (“admits that it committed crimes and systematically violated both U.S. and New York State laws by moving hundreds of millions of dollars illegally through the U.S. financial system on behalf of entities subject to U.S. economic sanctions”); United States v. UBS (2009) (admitted that it conspired to “defraud the United States by impeding the Internal Revenue Service”); United States v. Deutsche Bank (2010) (admitted that it “unlawfully, willingly and knowingly participated in financial transactions execution in connection with a number of tax shelter transactions” resulting in $29 billion in bogus tax benefits); United States v. WellCare Health Plans (2009) (admitted that it “knowingly and willingly conspired, confederated and agreed with others to execute and attempted to execute a scheme and artifice to defraud two health care benefit programs: the Florida Medicaid program and the Florida Healthy Kids Corporation program”); United States v. Volvo (2008) (admitted that “employees agents and distributors paid kickbacks to the Iraqi government in order to obtain contracts for the sale of trucks and heavy commercial equipment”). BP’s crimes are too numerous to include here and are identified in the text.

  4. Greenfield, Failure of Corporate Law, p. 76.

  5. Young v. National Association for the Advancement of White People, 35 Del.Ch. 10, 109 A.2d 29 (1954).

  6. More than 5,600 people have joined the “Revoke BP’s Charter” Facebook page, http://www.facebook.com/pages/Revoke-BPs-Corporate-Charter/121706904534835 (accessed July 29, 2011).

  7. The letter from Gary Ruskin at Green Change to Attorney General Beau Biden is available at http://www.greenchange.org/article.php?id=5947 (accessed April 23, 2011).

  8. Amicus brief, Nike v. Kasky, 2003 WL 835523 (2003).

  9. Ibid.

  10. Charles de Secondat Montesquieu, The Spirit of Laws: A Compendium of the First English Edition (Los Angeles: University of California Press, 1977), p. 130.

  11. See Daniel J. H. Greenwood, “Enronitis: Why Good Corporations Go Bad,” Columbia Business Law Review, Vol. 2004, no 3 (2004), pp. 773-848.

  12. Sheldon Whitehouse, speech to the U.S. Senate, “Whitehouse Slams Corporate Influence at MMS, Proposes Legislation to Defend Integrity of Government,” June 17, 2010, http://whitehouse.senate.gov/newsroom/press/release/?id=90941d79-ae11-496c-b541-34dbb0969848 (accessed July 30, 2011).

  Chapter Seven: Restoring Democracy and Republican Government

  1. Jamie Raskin, quoted in “Group Calls for Constitutional Amendment to Overturn High Court’s Campaign Finance Ruling,” The Public Record, January 21, 2010, http://pubrecord.org/multimedia/6674/congresswoman-professor-movement/ (accessed July 30, 2011).

  2. Theodore Roosevelt, First Annual Addr
ess, December 1, 1901.

  3. See Thomas E. Baker, “Exercising the Amendment Power to Disapprove of Supreme Court Decisions: A Proposal for a ‘Republican Veto,’” 22 Hastings Const. L.Q. 325, 331 (1995) (“By invoking the Article V power, ‘we the people’ may exercise a ‘republican veto’ to check the High Court’s hermeneutical tendency toward judicial oligarchy.”)

  4. Several bills have been introduced in Congress, some of which focus more narrowly on campaign finance or corporate speech, rather than the principle that constitutional rights are for people, not corporations. These are available at the Free Speech for People Web site, http://www.freespeechforpeople.org.

  5. Ibid.

  6. Chuck Baldwin, “Corporate America: Freedom’s Greatest Threat,” News with Views, July 7, 2007, http://www.newswithviews.com/baldwin/baldwin385.htm (accessed July 30, 2011).

  7. See Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), and David E. Kyvig, Explicit and Authentic Acts: Amending the Constitution, 1776-1995 (Lawrence: University Press of Kansas, 1996).

  8. Greenfield, Failure of Corporate Law, is very helpful in this regard.

  9. Ibid., p. 127.

  10..Delaware Code, Title 8, Chapter 1, Section 284, http://delcode.delaware.gov/title8/c001/sc10/index.shtml#;284 (accessed July 30, 2011).

  11. Young v. National Association for the Advancement of White People, 35 Del.Ch. 10, 109 A.2d 29 (1954); Craven v. Fifth Ward Republican Club, 37 Del.Ch. 524, 528, 146 A.2d 400, 402 (1958).

  12. Craven v. Fifth Ward Republican Club, ibid.

  13. Kent Greenfield, “A Campaign Funding Mess,” Boston Globe, January 23, 2010, http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2010/01/23/

  a_campaign_funding_mess/ (accessed April 24, 2011).

  14. See B Corp, http://www.bcorporation.net/.

  15. Hofstra Professor Daniel Greenwood has probed the undemocratic aspect of corporate law as we have come to accept it, the complexities of the states’ race to the bottom (or top, as some would have it), and the possibilities of progress by the “repoliticizing” of corporate law. See Daniel J. H. Greenwood, “Democracy and Delaware: The Mysterious Race to the Bottom/Top,” Yale Law and Policy Review, Spring 2005, pp. 381-454, http://people.hofstra.edu/daniel_j_greenwood/html/Mysterious04.htm (accessed June 18, 2011). See also Daniel J. H. Greenwood, “Democracy and Delaware: The Strange Puzzle of Corporate Law,” 2002, http://people.hofstra.edu/Daniel_J_Greenwood/pdf/DemocAndDelGWU.pdf (accessed June 16, 2011).