We the People are Sovereign over Corporations

DCDD

Seems like an appropriate time to share this tidbit in light of GM’s decision this week to close plants and layoff 14,000 workers…

“On January 10, 1997, President William Jefferson Clinton sent a letter to the mayor of Toledo, Ohio. The mayor had asked the president for help in getting the Chrysler Corporation to build a new Jeep factory within Toledo city limits to replace the ancient one which Chrysler Corporation was closing.

“The President of the United States, leader of the most powerful nation the world has ever known, elected head of a government always eager to celebrate the uniqueness of its democracy to the point of forcing it upon other nations, wrote:

‘As I am sure you know, my Administration cannot endorse any potential location for the new production site. My Intergovernmental Affairs staff will be happy to work with you once the Chrysler Board of Directors has made its decision.’

“Our president may not have a clue, but We the People did not grant away our sovereignty when we made Chrysler into a corporation.

“When we gave the Chrysler Corporation authority to manufacture automobiles, we made the people of Toledo not its subjects, nor Chrysler Corporation their supreme authority.

“How long shall We the People, the sovereign people, stand hat in hand outside corporate boardrooms waiting to be told our fate? How long until we instruct our representatives to do their constitutional duty?

“How long until we become responsible, until we become accountable, to our forebears, to ourselves, to our children, to other peoples and species, and to the Earth.”

From “Corporations, Accountability, and Responsibility,” by Richard Grossman in Defying Corporations, Defining Democracy: A Book of History & Strategy, Edited by Dean Ritz, Program on Corporations, Law & Democracy (POCLAD), p. 141-2.

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Don’t Let the Ability to Rein In Corporate Rule Slip Through Our Hands Like Water – Time to Amend the Constitution Now!

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What does this year’s Oscar winner for best film and the topic of a new book on corporate power have in common? Besides the Oscar announcement and book release being just days apart, the title of the best film, “The Shape of Water” describes a property of nature that corresponds to a major theme described in We the Corporations: How American Businesses Won Their Civil Rights by UCLA Law Professor Adam Winkler.

Like water, corporations are increasingly legally malleable and pliable. Water conforms to whatever shape it occupies. It’s natural law. The “shape” or definition of corporations is not due to gravity or any other law of nature. The “shape of corporations” is increasingly due to intentional and deliberate activist Supreme Court decisions over more than the past century, with some decisions seemingly contradicting previous ones, yet virtually always providing corporations greater flexibility and power.

The widening and deepening anger over the ever-expanding abuses and assaults of corporations to people, communities and the planet coupled with the frustration that traditional activist responses are less effective has given rise to greater interest in the subject that Winkler examines: corporate personhood and rights.

Winkler’s historical account of how corporations came to acquire constitutional rights of people is helpful, especially if it reaches new audiences. It’s a history, however, that for the past number of years, if not decades, has been shared in great detail in talks, writings, workshops and videos by the Program on Corporations, Law & Democracy, Women’s International League for Peace & Freedom, Community Environmental Legal Defense Fund and Move to Amend – as well as in earlier books, most notably Unequal Protection: How Corporations Became ‘People’ and How You Can Fight Back by Thom Hartmann. That history spelled out that the shape of corporations was not like water, but more like bedrock – strictly defined by We the People through elected representatives by separate corporate charters and later general incorporation acts. Sovereign people were in charge of their legal creations with corporations only possessing privileges, not inalienable rights.

Not as helpful for people wanting to understand this complex topic and interested in taking meaningful action for fundamental change is Winkler’s lack of clarity in some of the articles about his book over the term “corporate personhood.”  “Corporate personhood” and “corporate constitutional rights” are not the same.

Legal personhood for incorporated entities (i.e. corporate personhood) are legal rights established by governmental laws — known as statutory rights. The legal capacity or legal “personality” of corporation includes the ability to make contracts and other obligations, hold property, sue to enforce their rights and be sued for breach of duty.

Constitutional rights, including the Bill of Rights, were originally intended solely for human beings — albeit, at first, only to white, male, property owners. Constitutional rights were never intended to apply to corporate entities. The word “corporation” is not mentioned anywhere in the Constitution. Corporate constitutional rights have been granted exclusively by the unelected body of the Supreme Court. No public official or voter has ever had the authority to grant corporate entities inalienable constitutional rights.

The growing grassroots movement to end corporate constitutional rights, facilitated by Move to Amend, and proposed by its We the People Amendment – declaring that only human beings possess inalienable constitutional rights and that money in political elections, which is not equivalent to First Amendment free speech, can be legislatively regulated — doesn’t advocate to end corporate personhood, only corporate constitutional rights. Corporate personhood and corporate constitutional rights are not interchangeable, at least not in the law. Mixing the two only produces confusion, which leads to inaction, which we as people under expanding corporate assaults and plunders cannot afford at a time when fundamental democratic change is urgent.

The repeated fears expressed by Winkler and others that ending corporate rights would result in random government seizure of property or censorship of the media doesn’t square with the law or reality and, again, confuses corporate personhood and constitutional rights. A corporation as an entity representing the collective individual constitutional rights of its shareholders to defend their property rights would not change with the abolition of the corporation’s constitutional rights. The landmark New York Times v. Sullivan case upholding freedom of the press made no mention of the newspaper’s corporate form – what shielded the Times was the First Amendment’s “freedom of the press” not corporate constitutional rights. And why do we never, ever hear of such grave injustices toward corporations in other western “democracies” – countries with statutory protections of corporations (i.e. personhood) but apparently none of which have anointed corporations with inalienable constitutional rights? How many “corporate persons” have we seen on life rafts flocking to U.S. shores to escape the carnage of corporate “death penalties” and other miseries to the corporate life and limb?

Winkler makes an important point that the Supreme Court decreasingly considers corporations as their own legal person in constitutional cases. The Citizen United v. FEC ruling, for example, which expanded the ability of corporate entities to donate (or invest) in elections wasn’t based on the “corporations are people” premise, but rather on two arguments. First, limiting corporate political speech was a violation not because the organization Citizens United was a corporate person, but because limiting its corporate speech violated “listeners’ rights.” The person, not the government, had “the right and privilege to determine for itself what speech and speakers are worthy of consideration,” stated Justice Kennedy in his majority opinion. Second, limiting Citizens United’s political speech was actually a limit on collective individual speech since the corporation is merely a type of voluntary association of people, specifically shareholders. It’s not just individuals who have constitutional rights, so the argument goes, but individuals in their associated form who come together for mutual purposes.

While the Court has a long history of concocting fantastic pretzel-like legal contortions to justify widening the power and rights of the few and privileged and denying the rights of those historically oppressed (i.e. justifying women as subordinate to men, slaves as property, holding up Jim Crow segregation for sixty years, etc.), it’s nevertheless critical to understand and strategically counter the latest defenses to corporate concentrated power.

A person has no more the inalienable right to “listen” as (s)he has the rights to speak at will, for as long as (s)he may want for hours on end before, say, a city council meeting – including being prohibited from speaking at all if the message isn’t germane or the person may live outside the community. Reasonable limits are legitimate and the rule (e.g., usually a five minute maximum testimony at council meetings). Curious that nowhere in the Citizens United ruling was referenced rights to be heard from individuals whose voices are drowned out since they aren’t wealthy or don’t own a corporation. These rights are completely absent from the equation when calculating corporate free speech.

When it comes to corporations as nothing more than an association of persons, it’s back to the “shape of water” argument. When it’s convenient for a corporation to be separate from its shareholders to avoid being personally liable for a corporate malfeasance, then there’s zero connection, but when it’s convenient for the corporation to shield itself behind its human employees, shareholders, etc., then it’s nothing more than that — a mask to shirk responsibility. Corporate agents can’t have it both ways.

For those of us dedicated to opening up the democracy space that corporations have forever been trying to close, it’s necessary that any final proposed constitutional amendment addressing corporate rule close these loopholes.

Winkler has stated, “[t]he question is not whether corporations should have rights but which rights corporations should have. Today’s steady expansion of corporate rights is a product of giving corporations the same rights as their members. Instead, we should treat corporations as separate legal persons — with only those rights appropriate for corporations.” He’s correct. The corporate rights or protections that corporations should possess should be statutory. Inalienable rights belong alone to human beings.

Corporations have been playacting as “persons” in too many ways for too long – well deserving its own separate academy award for the category of “Worse Stand in for a Human Being.” Yet the Oscar it deserves is no more a legal person than Oscar Meyer (the corporation). Both are objects created by human beings to presumably serve some useful purpose (though maybe questionable given the ingredients in many hot dogs). It’s time that we clearly affirm that unalienable constitutional rights must be reserved exclusively for human beings, not for a hot dog or any corporation– no matter how much they may dramatically act like one.

The legal profession — too many Supreme Court Justices, almost all corporate attorneys and more than a few constitutional law professors — has been the directors and producers of this frightful show. With straight faces they have expanded or argued for corporate rights over human rights and the right to thrive in a livable world.

We cannot be intimidated or confused. While not lawyers or jurists, the vast majority of people in this country have PhDs on being on the short end of one assault or another by wealthy corporations. Permitting such assaults to people, communities and the planet – be they defended by corporate constitutional rights, listener’s rights or any other concocted bogus legal constructs — is the ultimate theatrical fantasy that has been a real life disaster that only an independent, diverse and fearless democracy movement will end.

 

POCLAD at the Democracy Convention

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by Greg Coleridge and David Cobb

http://poclad.org/BWA/2017/BWA_2017_Aug.html

 

How Judicial Review & Life Time Appointments Make the Supreme Court a Democratic Threat

 

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Workshop at Democracy Convention  |  Saturday, August 5, Minneapolis, MN
David Cobb and Greg Coleridge
Program on Corporations, Law & Democracy Principals

http://kfai.org/northern-sun-news/playlists/20170810

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Scene magazine 2017 People Issue

July 19-25, 2017

Four years ago, we met around a table, smacked our foreheads and decided it was high time we featured Clevelanders doing cool things in the region. We put together a long list of candidates. The only real qualifications were that we thought our subjects were interesting: They were young, old, black, brown, white, straight, gay, trans, cis, artistic, entrepreneurial, social, political and smart. They were weird and wonderful and enthusiastic about things that we sometimes were, and sometimes were not, also enthusiastic about. We had so much fun talking to our subjects that we did the same thing the next year, and the year after that, and the year after that.

This is our fifth annual People Issue, and once again we’ve been bowled over by the energy and diversity of the human beings with whom we share a city. In the following pages, you’ll meet artists, activists and an architect; writers, teachers and chefs. You’ll meet a rapper and a lawyer, a hardwood restoration specialist and a naturalist. You might meet someone you know — but you’ll certainly meet 27 people who you’ll want to know.

This is the Scene People Issue: Don’t be shy.

People 2017 photos by Ken Blaze Photography.

Greg Coleridge

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Hacked off by the Electoral College

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Below is the January newsletter posting from the Program on Corporations, Law & Democracy (POCLAD). It’s posted here because the POCLAD website, poclad.org, was hacked at the end of 2016 with content of the entire website erased. We were hoping to have the site restored before sending out this article. The website will, hopefully, be back online in the next few weeks. We feel POCLAD’s archives and occasional articles examining core democracy/self-governance issues are more relevant now than ever.

HACKED OFF BY THE ELECTORAL COLLEGE
Greg Coleridge

It happened again. For the fifth time in our nation’s history, we have a President of the United States who received fewer popular votes than his opponent.

As if we needed more political developments to question the legitimacy of our political system, we can now add to the growing list a President claiming a mandate to implement his agenda who lost the election by 2.86 million votes.

This issue for many is all about the individual persons who actually won and lost. It shouldn’t be. The larger, more fundamental issue is about democracy.  It’s about the credibility and legitimacy of our political system.

The fundamental question is very simple: should citizens in the United States have the right to have their individual votes count equally when electing their President? Yes or No?

While Congressional Committees are now investigating the threat posed to our elections by the Russians, including possible hacking of private emails, every citizen should be hacked off by the proven threat to democracy on full public display every four years by the built-in system for (s)electing the President: the Electoral College.

Never mind a possible single wall built between Mexico and the U.S. in the next four years, multiple walls were erected in our own original Constitution to keep We the People outside our own government and governance.1  Washington, Hamilton, Madison, Jay and other of our nation’s “founders,” fearing the potential political power of “the rabble,” had little interest in establishing anything approaching a real democracy.

History

The Electoral College is one of those walls. A relic of the immoral and heinous slavery era of our nation, the Electoral College was included in the Constitution to protect the political power of southern slave states when electing the President. Since slaves had zero rights, including the right to vote, an actual democratic national popular voting system would threaten the institution of slavery.

A nifty alternative was proposed by southern slave masters counting the “votes” of states over those of citizens, with each slave counted as 3/5ths of a real person when determining the number of proportional “electors” representing that state. This inflated the political power of slave states, protecting the barbaric institution.  Democracy, like many slaves who resisted their inhumane treatment, was tarred and featured. Little wonder that four of the nation’s first five Presidents were from slave-dense Virginia.

Adding to the dismay was the requirement that each state, regardless of population, would receive an additional two electors — representing the number of Senators of each state. The democratic distortion was in full display (or decay) before the ink dried on the parchment of the original Constitution.

The sordid link between the Electoral College and slavery transcends its birth. Rutherford B. Hayes was the second loser of the popular vote to become President.  Hayes lost the popular vote to Samuel Tilden in 1877. Twenty electoral votes were “unresolved.” The (s)election of Hayes as President was determined by a special commission, controlled by the CEO of the Pennsylvania Railroad Company and made up of Supreme Court justices and members of Congress. A deal was struck, The Compromise of 1877: Hayes would receive the 20 electoral votes if he agreed to pull federal troops from the South. This put an end to Reconstruction and the launch of Jim Crow racist laws. Those same troops were shifted to put down the first national labor strike in 1877, resulting in the death of over 100 strikers. Other troops were sent to fight the “Indian Wars” in the West, which stole land and created a different form of enslavement – Indian Reservations.2  Thank you Electoral College!

Democratic disaster

A few years ago Donald Trump said: “The electoral college is a disaster for a democracy.”
Views can and do obviously change when the shoe is on the other foot – or in his case Tweets are coming from another smartphone.  It’s not surprising that Electoral College outrage is so partisan. It’s the same with gerrymandering. Those doing the line drawing to benefit their political party and marginalize the other party always think it’s fair, even if the drawing paints a democratically damning picture. The Electoral College is, however, a nonpartisan assault on real democracy.

The major pillar of the Electoral College defense is the argument that it provides balance in ensuring political voice and power to rural and unpopulated communities and states. The point was made, for example, that the entire 2.86 million popular vote advantage of Clinton came from just California and New York and, thus, a popular voting system would in effect be determined by wishes, wills and whims of these two coastal states.3

Numbers can be parsed, of course, in ways to make exactly the opposite point. Texas, with its 38 electoral votes, can be claimed to have determined the national election. Given that Trump received 74 more electoral votes than Clinton, it can be asserted that it was the wishes, wills and whims of the Lone Star State alone that determined the final outcome.

There’s a reason that no other nation on the planet self-identifying as a “democracy” or “democratic republic” has anything like an Electoral College. Why? Because it violates the basic democratic principle of “one person, one vote.” Every vote should count and be weighted identically. Under the Electoral College, voters in small states have greater power per person than in more populous states due to every state, regardless of population, automatically receiving two electoral votes. It’s simple math.

Smaller states also have disproportionate power in the U.S. Senate. Gerrymandered congressional districts result in one political party (Republicans at the moment) having far better representation in the House of Representatives than their number of registered party members would warrant in state after state. If you add in the rights of minorities from majorities (be they individuals or institutions) inherently protected by the U.S. Supreme Court, a solid argument can be made that the constitutional scale is tipped well away from the right or power of popular, majority rule.

The fundamental democratic “unit” in our country is the human person (or in the case of elections, voters), not “the state” or “substate” like such as individual states, counties, cities, wards, or precincts. It should be irrelevant, therefore, how many states, counties, cities, wards or precincts presidential candidates won, but only how many eligible human votes they received. That’s how winning candidates are determined for Senate, House of Representatives, state elected office, county elected office, mayor, councilperson, even ward precinct committee person. Governors in all 50 states are elected by popular vote. Should not the same be true for the governor of all states – the President?

It’s only the Electoral College that permits losers to be winners.

If this were as fair as its promoters suggest in choosing a President, it would be a relative breeze to develop an equivalent Electoral College-friendly system at the state level to elect, say, U.S. Senators. Compared to the months it takes for state officials every decade to create gerrymandered congressional and state senate and representative districts, designing such a system would be a relative cakewalk. Winning the greatest number of counties in their a state with rural counties weighted more heavily would elect U.S. Senators regardless of the state’s overall popular vote. Why hasn’t it happened? Because no politician or “Blue Ribbon Commission” could sell it to the public.

Winning when losing broadens and deepens the ever-growing legitimacy crisis of the Presidency in particular and U.S. political system in general.

The hallmark of one person, one vote as the mechanism to determine outcomes transcends politics to include virtually every civil society organization. Even “Dancing with the Stars” honors one person, one vote in their annual faux electronic elections. You can’t get any more culturally legit!

Taking action

There are very few moments when fundamental flaws in governing institutions are so blatantly revealed. This is one of them.

The challenge will be to address fundamental democratic constitutional flaws amidst responding to scores of anticipated horrific public policy proposals from the Trump Administration.4  It’s what the Move to Amend (www.movetoamend.org) campaign to abolish corporate constitutional rights and money defined as constitutionally-protected free speech faces in the coming years.

It’s the same old story for people of conscience: deciding where to strategically place their strategic time, energy and resources. Should we focus on electing or unelecting public officials? Should we advocate for better laws and regulations? Should we organize for long-term structural and institutional change?

The answer is, of course, some of each. They’re all needed. They all, if understood as a package, reinforce one another.

Despite the in-our-faces contradiction between the myth of one person, one vote that we’re raised to believe our nation upholds compared with the reality the Electoral College presents, little activist energy exists for a constitutional amendment campaign to abolish this antidemocratic arrangement, despite an Amendment being introduced in late 2016 by former Senator Barbara Boxer.

Abolishing the Electoral College is more likely to occur as part of a larger package of constitutional “Democracy Amendments” in the future. This will require that citizens continue organizing a larger “democracy movement” which undergirds many current social, economic, political and environmental efforts.  As a reaction to the evaporating myth of democracy in our country, there is growing dedication to a democracy movement capable of successfully pushing a package of “Democracy Amendments.”  It could be a reality much sooner than we think.

In the meantime, there is an alternative strategy that would neutralize the Electoral College and its democratic distortions. Ten states and the District of Columbia have already passed legislation awarding their respective Electoral College votes to the winner of the national popular vote. These states and DC account for 165 electors.  If additional states with a cumulative total of 105 electors take the same action, the Electoral College would, in effect, be trumped with one person, one vote becoming the means for deciding the next President.

Being hacked off about the Electoral College is wholly legitimate.  Our task is to convert that anger into positive vision, engagement and common action on behalf of an electoral system with democratic integrity.

Notes

1 A list of undemocratic Constitutional provisions has been itemized in an earlier POCLAD article, A U.S. Constitution with DEMOCRACY IN MIND, http://poclad.org/BWA/2007/BWA_2007_MAR.html#3
2 Human Rights for Human Beings, Not Corporations,
http://poclad.org/BWA/2001/BWA_2001_MAR.html
3 The word “coast” is constantly used in this and other contexts not as a geographic descriptor but as a form of derision. “The coast” infers being on the edge or fringe, compared to being mainstream, or the center. The Midwest is authentic or real because it lies in the “heartland.” Interesting how those who use the word “coast” with such derision never use it when describing, say, Texas, with considerable coastline on the southern edge or fringe of the nation.
4 There would have been many horrific policies, though in some cases of a different set, deserving of immediate reaction and resistance if Clinton had been elected.