This has it all: a corporation in Ohio exploiting the opiod crisis by pushing a suspect drug on treatment providers, judges, politicians (including our very own Senator Rob Portman who received $29,000 in cash from the drug corporation) and even those in jail and prison with free samples. A political system and society hooked on corporate constitutional rights and money defined as free speech will never be a real and clean democracy.
by Greg Coleridge
Supreme Court Justice nominee Neil Gorsuch didn’t invent “corporate personhood,” the shorthand term used to describe the ludicrous decisions by U.S. Supreme Courts to sanctify corporate entities with inalienable constitutional rights intended exclusively for human beings.
As a federal judge, however, Gorsuch contributed to its expansion by applying it in creatively delusional ways in Burwell v. Hobby Lobby1. That 2014 case established that a “closely held”2 for-profit corporation, apart from the human beings connected to it, possesses religious rights.
Corporations were originally subordinate to We the People
Supreme Court Justices began more than a century ago twisting existing constitutional doctrines into a pretzel to justify with straight faces that corporate charters issued by federal and state governments possessed constitutional rights.
As followers of the Program on Corporations, Law & Democracy (POCLAD) are well aware, corporate entities were not intended originally at the nation’s founding to possess inalienable constitutional rights. They were granted charters, or licenses, one at a time by We the People via legislatures that precisely defined the limits of their actions. These included, among many others, limited charter durations and purposes, limits on the amount of land ownership, and stipulations of who could be corporate directors
Corporate charters were deemed to be democratic tools wielded to ensure public authority and control over subordinate corporate creations by the public. The corporate charter conferred “privileges,” not “rights.” Corporations were designed to be publicly accountable. If a corporation violated the democratically determined terms of its charter, state legislators or courts often revoked its charter with its assets distributed to those negatively impacted.
In a 1900 ruling to revoke the charter of a dairy corporation, the Ohio Supreme Court stated:
The time has not yet arrived when the created is greater than the creator, and it still remains the duty of the courts to perform their office in the enforcement of the laws, no matter how ingenious the pretexts for their violation may be, nor the power of the violators in the commercial world. In the present case the acts of the defendant have been persistent, defiant and flagrant, and no other course is left to the court than to enter a judgment of ouster and to appoint trustees to wind up the business of the concern.3
The role of a corporation was to provide useful goods or services. It wasn’t to lobby, contribute or invest in political campaigns, or even to engage in charitable activities.
Corporations become legal “persons”
All this changed when corporate agents began effectively influencing state legislatures and in the appointment of corporate attorneys to the Supreme Court. Corporations escaped democratic controls by pressing legislatures to adopt general incorporation laws (vs. one-at-a-time charters); and by shifting legal power from smaller to larger and more inaccessible arenas:
• The state to federal level,
• Legislatures to regulatory agencies, and,
• The legislative and executive branches to the judiciary (i.e. courts, including the Supreme Court).
It didn’t take long for corporate lawyers to appeal decisions limiting corporate actions to their peers on the Supreme Court, which “found” corporations as legal persons in a wide number of unforeseen places in the Constitution. These included within the 1st Amendment (right to speak and right not to speak), 4th Amendment (right against search and seizure), 5th Amendment (right against “takings”) and 14th Amendment (right of due process and equal protection of the laws). Corporate attorneys also hijacked the Contracts and Commerce clauses, which became anti-democratic battering rams.
Scores of federal court decisions over the last century have widened and deepened corporate constitutional rights. These decisions overturned local, state and federal laws that had previously protected workers, consumers, communities and the environment. In this way, the occupants of corporate boardrooms increased the political and economic power of the corporation at the expense of ordinary people.
As evident from this brief historical account and despite what many believe, the 2010 Citizens United vs FEC4 Supreme Court decision didn’t initiate the anointment with inalienable constitutional rights to corporate entities. The controversial 5-4 decision by the Supremes merely widened the already existing 1st Amendment free speech rights of corporate entities to make political donations (or investments) in elections.
Gorsuch further expands “corporate personhood”
While serving on the 10th Circuit Court of Appeals, Neil Gorsuch played a prominent role in further widening and deepening constitutional “rights” bestowed on corporate entities in an entirely new arena: religion. He was among the majority who ruled in the Hobby Lobby case that federal law prohibited the Department of Health and Human Services from requiring closely held, for-profit secular corporations to provide contraceptive coverage as part of their employer-sponsored health insurance plans under the Affordable Care Act if it violated the corporation’s religious beliefs.
You read it right: the corporation’s “religious rights.” The U.S. Supreme Court upon appeal affirmed the decision in a controversial 5-4 decision.
Hobby Lobby Corporation’s owners claimed they shouldn’t have had to be forced to comply with federal laws that violated their personal religious convictions. They referenced the 1993 federal Religious Freedom Restoration Act, which prohibits the government from imposing a “substantial burden” on a person’s exercise of religion, even in a generally enforced law.
Just to be clear about the decision: Gorsuch and others didn’t just rule that Hobby Lobby’s owners had constitutionally-protected religious beliefs, but that the artificial legal creation of the state itself, Hobby Lobby Incorporated, possessed religious convictions.
To extend and pretend that private, personal religious rights apply to public entities such as business corporations is a breach of a constitutional firewall with potential discriminatory implications. Dissenting in the case, Justice Ruth Bader Ginsburg said, “[t]he exercise of religion is characteristic of natural persons, not artificial legal entities,” the ruling was “a decision of startling breadth” and “[t]he court…has ventured into a minefield.”5
The Hobby Lobby case opens the door as never before to requests for exemptions by private business corporations to laws that apply to human beings based on any number of claimed religious beliefs. Some individuals, for example, currently hold strong religious convictions about everything from racial, religious and sexual-orientation discrimination to the role of women in society. Hiring, paying, treating and providing benefits to employees are potentially up for grabs. Providing service (or not) to customers based on any number of factors is potentially at the whim of certain business corporations. Even specific for-profit charter schools could impose religiously motivated racial segregation policies on their students.
What existing or potential civil rights laws would not be impotent to claims that corporate discrimination against employees was motivated by strongly held religious beliefs of its owners? Thanks to Hobby Lobby, the corporation provides cover for business owners to impose racism, sexism, homophobia and classism. Those wishing to discriminate were handed a powerful weapon in the Hobby Lobby decision.
This isn’t just fantasy. It’s already happening. A federal district judge last year ruled that a transgender employee could be fired by a funeral home owner who believed that gender transition violated his biblical teachings6.
Ending corporate personhood
Corporate personhood has been normalized for too long – with disastrous legal, political, economic, social and environmental consequences. It’s not legitimate. It’s not democratic. It’s not human.
Never mind for the moment “fake news.” Corporate personhood is “fake constitutional law.” Corporations are corporations. People are people. Corporations are legal, subordinate creations of We the People. These artificial entities should receive only privileges, not rights, as authorized by the public.
It’s way past time to affirm that only human beings, not corporate entities, possess inalienable constitutional rights. Move to Amend’s We the People Amendment7 does just this. It should be our long-term goal.
In the immediate term, Neil Gorsuch has played a role in the gory expansion of corporate personhood. If we’re serious about protecting what little democracy remains in our nation, his nomination for the Supreme Court must be defeated.
The Citizens United decision was for many people the first time they had ever heard of “corporate personhood.” Thanks to the Gorsuch nomination and his ruling on Hobby Lobby, many more are becoming aware.
Call it the “Corporate Personhood Awareness and Wake Up Call 2.0.” This is a teachable moment to educate. It’s also an actionable moment to resist. Let’s take full advantage of these opportunities.
1 573 U.S. ___ (2014)
2 “Closely held” corporations are defined by the Internal Revenue Service as those which a) have more than 50% of the value of their outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and b) are not personal service corporations. By this definition, approximately 90% of U.S. corporations are “closely held”, and approximately 52% of the U.S. workforce is employed by “closely held” corporations. [Source: Wikipedia]
3 State ex rel. Monnett v. Capital City Dairy Co., 62 OS 350 (1900)
4 558 U.S. 310 (2010)
Great piece posted on cleveland.com…
I offered many reflections in the comments section at the end.
January 25, 2017
Move to Amend’s proposed constitutional We the People Amendment has two components. One is much simpler to understand – ending the constitutional doctrine that money is equal to free speech – because the problems connecting big money to political lobbying and elections are so pervasive.
The other component – ending corporate constitutional rights – is more challenging to grasp. The fundamental problems with corporate constitutional rights transcend the influence of corporate money contributed or invested in political lobbying and elections. Corporate constitutional rights have their own set of components that have in many instances over a century corrupted and perverted authentic democracy.
Beyond corporate free speech rights preventing laws limiting corporate campaign donations, those same 1st Amendment free speech rights have prevented communities from acquiring the right to know what ingredients (i.e, chemicals, GMOs) are in their food. That’s due to the acquired corporate 1st Amendment right not to speak. Corporate religious rights, granted in the Hobby Lobby decision, have limited access to health care to employees. Corporate property rights, (via the 5th Amendment takings clause) have limited laws protecting communities from environmental destruction. Corporate privacy rights (via the 4th Amendment) have limited the health, safety and welfare at workplaces over decades. And corporate commerce rights (via the perversion of the Commerce Clause and 14th Amendment’s equal protection clause) have limited laws and regulations on pipelines, transportation of toxic waste, mining, and landfills.
Corporate anthropologist Jane Anne Morris in her book Gaveling Down the Rabble states that 100’s of democratically enacted laws and regulations protecting workers, consumers and the environment passed by Democratic and Republican state and local legislatures over decades have been overturned by the corporate perversion of the Commerce Clause and 14th Amendment. Before the 1st Amendment became the go-to democratically destructive hammer of corporate agents, it was the Commerce Clause and 14th Amendment.
If all we do is overturn Citizens United or merely end money as speech, corporate agents will reach back into their anti-democratic tool kit and assault us like they did in the past – usurping democratically enacted laws. Amending the Constitution is damn hard. It rarely happens. It’s not like reaching a goal through passing a series of laws one piece at a time. We only have one chance. We better make the most of it. That’s why abolishing the legal doctrine of money defined as free speech and corporations defined as legal persons as reflected in the We the People Amendment is mandatory.
History shows that what seems impossible today becomes inevitable tomorrow based on the degree of internal preparedness and timing of external conditions.
Now’s the time to educate ourselves and others, pass resolutions, collect organizational endorsement, organize ballot initiatives, and encourage Congressional endorsers. The right time and conditions externally will inevitably arrive.
Contacts: Lois Romanoff, 216-231-2170, firstname.lastname@example.org
Chris Stocking, 440-376-8400, Christopher.Stocking@gmail.com
Diane Karpinski, 216-921-2474, email@example.com
Greg Coleridge, 216-255-2184, firstname.lastname@example.org
For immediate release, December 8, 2016
Cleveland City Council passes ordinance calling for U.S. Constitutional Amendment on corporate power and money in elections; creates biennial Democracy Day
[Cleveland, OH] Cleveland City Council Monday night passed an ordinance calling on Congress to enact a Constitutional Amendment ending constitutional rights for corporate entities and to money being defined as free speech. The ordinance also establishes an every-other-year “Democracy Day” public hearing that will address the impact on the City of political contributions by corporations, unions, Political Action Committees, and Super-PACS; the first to be held in May, 2017
The Cleveland Move to Amend (MTA) campaign, part of the national Move to Amend movement that is proposing the Constitutional Amendment, had submitted last summer more than 5000 valid signatures by volunteers required by the City Charter to place the initiative on the ballot.
“We thank Cleveland City Council for taking a position on this important national issue,” said Lois Romanoff, co-chair of Cleveland Move to Amend. “We feel local public officials need to oppose the growing corrupting influence power corporate entities in our society and big money in our elections. It’s clear from the recent election that voters believe government has been captured by interests who don’t represent people without money or power.”
“We urged City Council to place the citizen initiative on the ballot for voter consideration rather than simply enact the initiative, said Chris Stocking, co-chair of Cleveland Move to Amend. “We feel these issues are important enough to have not only Cleveland public officials take a position, but Cleveland citizens. A ballot measure would have given us the opportunity to broadly discuss with the community the many problems connected with corporate power and large campaign contributions from the super wealthy.”
“While we had hoped Cleveland City Council would have permitted our initiative to go to the ballot, we look forward to working with them to hold the first biennial Democracy Day public hearing next May,” said Diane Karpinski, member of Cleveland MTA. The hearing will be an ongoing arena to shed light on the problems of and alternatives to corporate constitutional rights and the rights of unlimited money being spent in elections.”
“Hundreds of communities across the nation have already enacted municipal resolutions and/or ballot measures in support of this Constitutional Amendment,” said Greg Coleridge, Move to Amend Ohio coordinator and Director of the NE Ohio American Friends Service Committee. “Twenty two communities in Ohio have, to date, taken a stand — 12 via municipal resolution and 10 by the ballot, including this past November with 82% of Shaker Heights voters and 77% of South Euclid voters.”
Citizens in Brecksville, Chagrin Falls, Cleveland Heights, Defiance, Kent, Mentor, Newburgh Heights, and Toledo previously passed a similar ballot initiative while the communities of Athens, Barberton, Bedford Heights, Canton, Dayton, Fremont, Lakewood, Lorain, Oakwood Village, Oberlin, Oxford, and South Euclid passed city council resolutions supporting the Move to Amend-backed Constitutional Amendment.
Move to Amend support the We the People Amendment, HJR 48. It’s co-sponsored by 22 U.S. Representatives.
# 30 #
Twenty years ago today, on October 20, 1996, twenty-five Ohioans came together at the Procter House (former summer estate of William Procter of Procter and Gamble Corporation fame) between Columbus and Cincinnati to participate in a workshop titled “Rethinking the Corporation, Rethinking Democracy.” Sponsored by the Program on Corporations, Law & Democracy (POCLAD) and led by POCLAD co-founder Richard Grossman and corporate anthropologist Jane Anne Morris, the workshop was one of scores organized over several years all over the country by the group.
The environmental, labor, peace, and justice activists in Ohio were drawn to the gathering because each was struggling against or concerned about repeated corporate assaults upon their communities in particular, and upon democracy in general. I was fortunate enough to be one of those participants representing the NE Ohio AFSC, thanks to an invitation from former Toledo City Councilperson Mike Ferner.
We learned at the retreat that since revolutionary days people were well aware that property owners could use the corporate form, equipped with special privileges to operate as private governments, causing sustained harms to people, places, liberty and democracy. So people at the state level used their constitution, corporate charters and state corporation codes to define corporations as subordinate, and to restrain legislators from favoring property over people.
But as land, railroad, banking, insurance and other corporations began to acquire wealth, they crafted a different agenda. Investing some of their huge profits from the Civil War, they lobbied for legal doctrines and laws that privileged private over public interests, and favored property rights over human rights. As they increased their influence over local, state, and federal governments, they kept rewriting state constitutions and corporation laws shaping the culture to legitimize corporate dominance.
By the end of the World War II, giant corporations routinely called upon our governments to deny people’s rights — for example, by declaring that workers have no free speech or assembly rights on corporate property, or that regulated industrial corporate poisons are legalized industrial corporate poisons.
At the same time, people’s protests and political activism were increasingly channeled into administrative and regulatory agencies such as the Federal Trade Commission, the Federal Communications Commission, the National Labor Relations Board, the Environmental Protection Agency, and scores more. In fact, corporations helped design many of these agencies, starting with the Interstate Commerce Commission in 1887, so that the most which We the People can accomplish via such agencies is to get corporate property owners to cause a little less harm.
Stirred by these presentations about corporate histories and peoples’ struggles for democracy, we discussed at the Proctor House our own organizing experiences. We began to grapple with the idea that our efforts at opposing corporate violations of laws and harms one at a time, over and over again, had been tiring, erratic, and not particularly effective.
It struck us that we had a lot to learn about and from corporate history. Among other things, while we were educating on single issues, researching areas of science and technology, and organizing mostly around local, state and federal regulatory agencies, corporate officials were focusing in constitutional arenas. There, they lobbied for the property and civil rights of human persons.
While we were writing drafts of health, environmental, consumer and labor laws that would curb corporate behaviors, corporate attorneys were writing state corporation codes and amending state constitutions to define giant business corporations as private — essentially beyond the authority of We the People.
While we were bringing our causes to regulatory agencies (having been taught that state and federal regulators were our allies), corporations were too often using these same regulatory laws and agencies as barriers to justice.
And while we were considering creative ways to boycott corporate sweatshops; stop the next corporate toxic/radioactive factory/dump; persuade corporate executives to sign voluntary codes of conduct and act responsibly; and prevent factory closings or employee layoffs…corporate agents were getting state and federal courts to deny people basic constitutional rights while expanding their own rights.
The weekend was one of those “ah ha” moments for me that we all have at some point(s) in our lives if we’re lucky when understanding of the world takes a large leap rather than a small step forward. The information presented, discussed and analyzed was nothing that we had been exposed to in our schools, media, religious organizations, or even activist groups.
We were challenged just before departing to research our own legal, political and people’s history of corporate power and democracy movements in Ohio – since it was at the state level where most corporations were licensed or chartered with those charters considered democratic tools to define corporate actions.
The energy and commitment from the gathering led to the formation of the Ohio Committee on Corporations, Law & Democracy , which AFSC helped coordinate, and the subsequent publication of the booklet Citizens over Corporations: A Brief History of Democracy in Ohio and Challenges to Freedom in the Future, the documentary CorpOrNation: the Story of Citizens and Corporation in Ohio, articles, debates, talks, workshops, forums, and testimony before the Ohio General Assembly against several proposed bills that would expand corporate power — including watering down the state corporate code to be more corporate-friendly.
All these activities occurred years before the Citizens United vs FEC U.S. Supreme Court decision of 2010. For many, Citizens United was an “ah ha” moment in which corporate constitutional rights (as well as the constitutional doctrine of money being defined as free speech) was first realized. It’s true Citizens United granted inalienable constitutional rights – specifically the right to contribute or invest in elections – to corporations as well as to individuals. Those rights, however, were not brand new rights, only expanded rights anointed to corporations and wealthy individuals. In the case of corporations, those never-intended original rights went back more than 100 years, as we learned at our retreat.
Twenty years later, corporations have even greater constitutional rights and authority than ever due to the Citizens United v FEC, Burwell v Hobby Lobby (granting corporations religious rights), McCutcheon v FEC (permitting even greater sums of money from wealthy individuals to be donated/invested in politics) and other High Court decisions. Money continues to be defined constitutionally as free speech, as it has been since 1976.
Corporate dominance has increased in virtually every sector of our lives, including elections, mass media, education, health care, criminal justice, food, energy, environment and (you fill in the blank here). It profoundly threatens our right as people to decide what takes place in our neighborhoods, communities, nation, world and natural world.
Yet much of activism remains channeled largely, if not solely, into elections, regulatory agencies, or lobbying for laws addressing one single harm/issue/problem/concern. Meanwhile, corporate agents continue to focus on fundamental rule changes that fundamentally address and lock in power and rights.
The “ah ha” moments of corporate constitutional rights and its direct assault on self-governance are growing more numerous. The Move to Amend campaign and its quest to pass a We the People Constitutional Amendment abolishing all never-intended inalienable constitutional rights (and not just reverse Citizens United) and money defined as free speech is making more sense to more people in more communities. The growing “ah-ha” moments are coalescing into a movement involving people in hundreds of communities taking a stand.
It’s part of the arc of education and organizing that over the last 20 years the “Rethink” workshops helped launch and the Move to Amend campaign for a constitutional amendment will, hopefully, one day complete.
On Sept. 14, State Representatives Kent Smith (District 8) and Nickie Antonio (District 13) announced their primary co-sponsorship in the Ohio House of Representatives of a resolution calling on “legislators at the state and federal level and other communities and jurisdictions to support an amendment to the United States Constitution that would abolish corporate personhood and the doctrine of money as speech.”
Also present at the Sept. 14 press announcement, held in South Euclid, were 30 Move to Amend supporters, and State Senator Michael Skindell (District 23) who introduced an identical resolution, SR 187, in the Ohio Senate in 2015. State Rep. Janine Boyd (District 9), who represents Cleveland Heights, University Heights and Shaker Heights, is one of 11 co-sponsors of the House resolution, which has not yet been assigned a number. The text of SR 187 is here: http://bit.ly/2d3ywoj.
Why this resolution, and why now?
Many Americans became aware that corporations claim the constitutional rights of actual persons—and that huge amounts of money, often from secret sources, rules our politics—only when the Supreme Court’s 2010 Citizens United decision made it glaringly obvious. Since then, various constitutional amendments have been proposed to overturn Citizens United, but this is not enough.
Cleveland Heights resident Greg Coleridge of Ohio Move to Amend explained, “Simply reversing Citizens United, or even overturning the 1976 Supreme Court decision that first equated money with free speech rights, leaves in place other tools corporations have corrupted to assert their rights over those of actual people—namely the 4th, 5th and 14th Amendments and the Commerce Clause. Only by denying corporations legal personhood can We the People (re)gain the authentic right to decide what takes place in our communities, nation and world.”
Move to Amend’s “We the People” Amendment is the only proposed amendment that would end both constitutional rights for corporate entities (including unions) and the definition of money as “free speech.” It is gaining traction in local, state and national jurisdictions:
- House Joint Resolution 48, introduced in the 114th U.S. Congress by Richard Nolan (Minn.), has attracted 22 co-sponsors from 15 states, including Congresswoman Marcy Kaptur (Ohio District 9), who signed on after her constituents passed local resolutions and ballot initiatives. (https://www.congress.gov/bill/114th-congress/house-joint-resolution/48.)
- Initiatives fundamentally identical to that passed in Cleveland Heights have been approved by voters in eight Ohio municipalities, including a 64 percent “yes” vote in Toledo in March 2016.
- Registered voters have put initiatives on the November ballot in Shaker Heights (Issue 95), South Euclid (Issue 102) and Newark, Ohio.
- A ballot initiative campaign is starting up in University Heights. (E-mail email@example.com for information.)
- Municipal councils in 12 Ohio communities have passed resolutions supporting the “We the People” Amendment to the U.S. Constitution.
- The Ohio Move to Amend network of grassroots activists is growing, with affiliates and partner groups in Athens, Brecksville, Chagrin Falls, Cleveland, Cleveland Heights, Columbus, Dayton, Fremont, Kent, Mentor, Oxford, Shaker Heights, South Euclid and Toledo.
SR 187 and the House companion resolution have been introduced in the 131st General Assembly due to the efforts of hundreds of Ohioans from around the state who spent thousands of hours promoting local resolutions and collecting the signatures of tens of thousands of registered voters to put the nonpartisan Move to Amend on their local ballots.
Whether the issue is charter schools, food safety, climate change, economics, trade, world peace or health care, corporations are using never-intended constitutional rights to control the outcomes. Passing an amendment to the U.S. Constitution requires a long view and hard work; it took 72 years for women to win the vote. Like women’s suffrage, Move to Amend poses a fundamental question: In a democratic republic, who rules?
Carla Rautenberg and Deborah Van Kleef
Carla Rautenberg is an activist and a lifelong Cleveland Heights resident. Deborah Van Kleef is a musician and writer, who grew up in Cleveland Heights and has lived here as an adult for over 30 years. Contact them at firstname.lastname@example.org.