Monday, March 19, 2012

Deconstructing Corporate Personhood

Earlier this year, Portland resident Herb Adams gave one of the most theatrical assessments of corporations I have heard to date.

“History will tell you that one of the strangest sidelines ever wandered down by the Supreme Court was that of ‘corporate personhood’,” Adams spoke at a January City Council Meeting. “…Corporations now have all the rights of a human being, plus immortality. They do not breathe, and yet they live. They do not have children, but they can reproduce. They cannot die in war because we do it for them… Never born, they cannot die.”

Adams was speaking, of course, about the Supreme Court ruling, Citizen United v. FEC, which lifted the barriers on corporate campaign donations in elections. He was speaking in favor of a city resolution (drafted by yours truly) calling on Maine’s congressional delegates to support a Constitutional amendment overturning the controversial Supreme Court decision. (The resolution ultimately passed. Click here for the full story.)

Adams’ sentiments are summed up succinctly by the title of a new book by Jeffrey Clements: Corporations Are Not People. Clements, an attorney and cofounder of the progressive group, Free Speech for People, is on a crusade to restore democracy to “We the People.” His book—more an activist “how-to” manual than academic treatises—is billed as the “Definitive guide to overturning Citizens United.”  Consider it the Common Sense of our era. Yeah, it’s that important.

Clements traces the history, not only of the now infamous Citizens United decision, but also the efforts of uber-conservative Supreme Court Justice Lewis Powell to gradually lift business regulations, and further the concept of corporations as “people.”

Powell, like so many of his “small government” peers, believed corporations were unfairly hindered by onerous government taxes and regulations. In seeking to “level the playing field,” for corporate speech, one could argue Justice Powell engaged in the same sort of “judicial activism” constantly derided by Antonin Scalia, Samuel Alito and Chief Justice John Roberts. As with the myth of the “liberal media,” the Supreme Court is another venue where the right has succeeded in convincing Americans of a prevailing left-wing influence when, in reality, conservative views tend to dominate. In fact, legal scholars have called the Roberts-led Court the most conservative in modern American history.1

Clements charts how corporate “persons” used their newfound First Amendment rights, in one instance, to continue advertising cigarettes to children—even long after the harmful effects of smoking became public knowledge. In 2010, the Supreme Court struck down a 30-year Massachusetts law prohibiting cigarette advertisements within 1,000 feet of schools and playgrounds. The court argued the tobacco company, under the concept of free speech, essentially has the right to tell lies about the negative health impacts of its product.

Elsewhere, Clements examines the case of the bovine growth hormone rBGH manufactured by Monsanto. The drug, which is designed to increase milk production, has been linked with numerous forms of breast cancer, and has been banned in every other industrial nation in the world. Every other nation, that is, except the U.S., where Monsanto has vehemently fought even the most modest efforts for milk producers to place health advisory labels on the milk cartons.

Clements describes the efforts of local dairy farmers in Vermont who attempted to place health warning labels on milk that had been treated with the potentially lethal drug. But Monsanto sued the farmers, claiming their free speech rights also gave them the right not to speak. The judge, ruling in favor of the corporate chemical giant, claimed “the people of Vermont had caused a ‘wrong’ to the industrial dairy manufacturers’ ‘constitutional right not to speak.’” Once again, the Supreme Court cast the corporate speakers as unjustly marginalized by citizens who simply believed customers should know what exactly is in the milk they are purchasing.

Clements also debunks many of the right-wing myths often repeated by free-market ideologues when defending corporations’ unrestricted First Amendment rights. The concept, for instance, that corporations are the primary job-creators in the country, and that any regulations and restrictions placed upon them hinders their ability to hire.

This, according to Clements, is a wonderful fiction. If anything, he argues, the reverse is true: Corporations have done more to weaken the economy and eliminate blue-collar jobs. He writes:

In the past decade, the United States has lost thousands of factories, and thousands more are on the precipice. By 2009, fewer Americans worked in manufacturing jobs than at any time since 1941. Most other measures of the American middle class are just as bad. Hours worked? Since 1979, married couples with children are working an additional five hundred hours (equivalent to more than sixty-two eight-hour days). Vacation time? We have by far the lowest standard for vacation time in the developed world… Affordability of housing? Ability to pay for college? Retiring with a safe pension? Health care? Most people have it much worse on these measures than thirty years ago.2

And giant corporate mergers typically result in massive layoffs rather than the creation of new jobs.

So what can we, as citizens, do to take back our country?

Clements ultimately proposes a Constitutional Amendment. (“The People’s Rights Amendment” would be the 28th amendment to the Constitution.) His book includes a number of practical resources, websites and information on how to join in this effort on the local level. Furthermore, Clements argues we need to redefine the purpose of a corporation. Corporations, he believes, should work to serve the public good—not to enrich their own CEOs and shareholders at the public’s expense.

Here in Portland, we have already begun that process with the City Council’s recent denouncement of so-called “corporate personhood.” Clements’ Corporations Are Not People serves as an instructive and educational guide to mapping out the next steps of this very difficult, yet highly urgent campaign.

"This is what corporate personhood looks like!"

1.      Liptak, Adam. “Court Under Roberts is Most Conservative in Decades.” New York Times 24 July, 2010. Web.

2.      Clements, Jeffrey, D. Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It. San Francisco: Berrett-Koehler Publishers, 2012. Print.


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