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.
Even the weak Dodd-Frank was too much for financial corporations. The FIRE (Finance, Insurance & Real Estate) industry is near the top of those that spend/contribute/invest $ in lobbying and political campaigns. Another fine example of their investment royally paying off…and why we need the We the People Amendment.
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)
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.
A simple amendment to a bill in the U.S. Senate was introduced Wednesday night urging the government to permit U.S. residents to purchase pharmaceutical drugs from Canada. The practice is currently illegal.
Canadian drugs are much cheaper than those purchased in the US, not because of their inferior quality, but simply due to government price controls. The United States is the only industrialized country that does not use price controls for pharmaceuticals.
The amendment introduced by Senator Bernie Sanders failed 52-46. That’s not surprising in one sense given the political views of Sanders compared to the majority of the Senate. However, what was surprising was who voted for and against the amendment. Thirteen Republicans and a majority of Democrats supported the Sanders amendment, while 13 Democrats and a majority of Republicans opposed it.
A 2015 poll found that 72 percent of Americans support Canadian drug importation. President-elect Donald Trump also campaigned on a promise to allow for importation.
Those opposing the amendment claimed safety issues. This is a smokescreen. Do we really believe Canadian drug standards are fundamentally different that here? Besides most Canadian drugs are originally manufactured in the United States.
No. A big reason for the vote was money – not the high drug prices, but the Senators drugged and addicted to political campaign donations…or investments from big Pharma – that is pharmaceutical corporations.
Leading the way among the 13 Democrats who opposed the Sanders amendment was New Jersey Senator Cory Booker, perceived as an early front-runner for the 2020 Democratic Presidential nomination. Over the last 6 years, he received $267,338 from Big Pharma. Many pharmaceutical and biotech firms reside in New Jersey. Other Democrats who opposed this reasonable measure were Sen. Patty Murray (D-WA) who received $254,649; Robert Casey (D-PA) who received $250,730; and Michael Bennet (D-CO) who received $222,000.
By the way, Booker is also a Wall Street favorite. Securities and investment firms donated/invested $1.88 million to Booker during the 2014 midterm elections – ahead of all other 99 senators. Second was Mitch McConnell.
This behavior doesn’t do much for the reality, or even the perception, that politicians – Democrats and Republicans — are listening to average people. Another example of the disconnect between what people want and, in this case, the policies we don’t have. Another example of the hijacking of what’s left of our democracy through the addiction of corporate campaign cash. Another example why we need to abolish corporate personhood and money as speech through the Move to Amend We the People Amendment. And another example of why we can’t leave it to those we elect to represent us.
We must take charge – educate others, organize, mobilize and pressure politicians to do what’s just.
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 firstname.lastname@example.org 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 email@example.com.
It’s difficult to keep up with the many seemingly different ills facing us. What helps reduce frustration and increase understanding is when we’re able to group those with a singular root cause. It’s also empowering since the way to solve them many be similar.
Take the following recent problems over the past month that have been in the news – on food, immigration, education, energy, and jobs/wages/unions.
While very different problems, the root cause is pretty much identical – corporate power and rights.
President Obama in late July signed into law S. 764. Dubbed by opponents as the “Denying Americans the Right to Know,” or DARK Act, the bill nullified the laws of Vermont, Connecticut and Maine requiring the labeling of genetically engineered foods. It also preempted the genetically engineered seed labeling laws in Vermont and Virginia which allowed farmers to choose the seeds they wanted to buy and plant. The law also struck down Alaska’s law requiring the labeling of any genetically engineered fish or fish product, passed to protect the state’s fisheries from contamination. To top it off, passage the DARK Act deters other states from following in the health, safety and democratic footsteps of Vermont, etc.
Over 90% of Americans support clear mandatory GMO labeling, yet President Obama defied overwhelming public sentiment despite his promises during his 2008 presidential run that he would support the labeling of genetically engineered food. It’s ironic when this bill was signed – a week after the Democratic National Convention – where the Democratic leadership portrayed themselves as leaders of the party of the people. Not quite.
Trade groups representing the Big Food industry like the Grocery Manufacturers Association and biotech corporations like Monsanto supported the DARK Act. According to OpenSecrets.org, Senators who had voted on a procedural vote in favor of the Senate bill received more than twice as much in political campaign contributions (or investments) from the agriculture lobby than those who voted against it ($867,518 for the supporters vs. $350,877 for opponents).
The President justified the DARK Act’s massive hijacking of local democracy on the grounds that the bill would create national standards for labeling of GMOs. The bill, “directs the Secretary of Agriculture to establish a national mandatory bioengineered food disclosure standard,” The “disclosure standard” includes consumers having to scan a QR code on a food product to find out about genetically modified ingredients, or call a 1-800 number. There’s no certainly even these measures will happen for another 5 years.
So the national standards are at the lowest common denominator possible – providing much less protection to the safety of our food and health of our citizens.
The bill is just another example of how powerful corporations and moneyed interests have usurped what remains of our representative democracy.
The Department of Justice (DOJ) announced last month the end of using corporate prisons to house federal inmates. The DOJ made the decision after determining the facilities were both less safe and effective at providing correctional services than those run by the US government.
This is a step in the right direction. But the decision applies to a mere 13 DOJ-run facilities, which detain a small percentage of all those currently held in US. It doesn’t apply to state prisons – many of which like in Ohio are run by for-profit corporations. And it won’t affect prisons run by other federal agencies – including those that detain immigrants. These facilities will continue to be run by giant for-profit corporations, the two largest of which, Corrections Corporation of America (CCA) and the GEO Group, receive half of all their entire revenue from federal contracts.
The U.S. deports over 300,000 people annually and holds approximately 400,000 people in immigrant detention facilities across the country at an annual cost of over $2 billion. More people have been deported under the Obama administration than under the Bush administration. Part of the explanation for this is what’s known as the “immigrant detention quota” or “bed mandate” – a law passed in 2009 during a decline in the undocumented immigrant population to maintain a level of 33,400 beds on a daily basis (raised to 34,000 in 2013).
The quota system triggered an increasingly aggressive immigration enforcement strategy by the Immigration and Customs Enforcement (ICE) to fill the beds. Pressure increased to place most of the beds in corporate-run detention centers. CCA and GEO Group did their part by lobbying to expand the corporatized system and make sure they profited from imprisoning people. Those two corporations alone have invested more than $11 million in lobbying in recent years. Together, they operate eight of the ten largest immigrant detention centers. GEO and CCA combined operate 72 percent of the privately contracted ICE immigrant detention beds.
So while the DOJ announcement is a step in the right direction to close federal prisons, CCA and GEO have managed to continue locking down the bulk of their profits by ensuring that the “bed quota” system remains in force and that most of those beds of undocumented immigrants are in their detention centers.
In late July, the Electronic Classroom of Tomorrow (ECOT), a charter school in Ohio, finally complied with an order from the state to turn over attendance records. At issue is whether 15,000 students are actually engaged in 920 hours of “learning opportunities” required each year to justify the more than $100 million it receives from Ohio taxpayers.
A preliminary look by the Department of Education last spring found that ECOT students spent, on average, only one hour participating in online work each day. Five hours per school day are required to reach the state’s minimum 920 hours of “learning opportunities” annually. ECOT maintains that the bulk of student “learning opportunities” take place offline, but there are no records to prove it. ECOT claims state law doesn’t mandate keeping such records, and has filed suit for “purposefully discriminating against them.”
ECOT has been a major beneficiary of laws and regulations regarding charter schools and, of course, a major beneficially of huge contracts. These are directly related to their political influence.
William Lager, ECOT CEO, made political contributions/investments of $2.36 million between 2000-2015. The bulk of these gifts have gone to House and Senate Republicans who’ve been defenders and cheerleaders for ECOT.
It’s been a darn good investment as these same cheerleaders and defenders are paying dividends to block any serious audit of the school’s books and present any claw back of millions of taxpayer dollars that seem to have been wasted.
As reported today on Cleveland.com, a Virginia wind-power development company, Apex Clean Energy, hopes to erect four wind farms in the northern Ohio. Two state laws, however, are preventing the company from committing to the investment. One of them is the 2014 legislation freezing for three years a mandate for investor-owned utilities to tap renewable energy sources. Two bills currently in the state legislature would extend the freeze on renewable energy standards or make them permanent.
Other states are rapidly moving ahead in wind energy. In Iowa alone, more than 3400 wind turbines generate 5700 megawatts of electricity – 28% of the state’s total electricity generation, the equivalent of 1.5 million homes. If you drive across Iowa or southern Minnesota, as I did recently, you’ll witness the future – hundreds of wind turbines. Wind energy developed roots in Iowa because there wasn’t much political influence from oil, gas and coal corporations.
Not so in Ohio.
Those industries have locked down the Ohio legislature with campaign investments, lobbying and funding for bogus science touting the wonders of “clean coal” and questioning the long-term sustainability of wind and solar energy generation.
This hurts our pocketbooks, environment and what’s left of our democracy.
The decline of organized labor has contributed to the loss of jobs and decline of wages – for organized workers to be sure, but also for nonunion private sector workers.
A just issued report from the Economic Policy Institute, timed for release near Labor Day, researched the amount of money nonunion workers would have earned in 2013 if union membership in the private sector stood at 1979 levels.
The report concluded that wages for men would have been 5% higher, or $2700 higher per year. For nonunion men with lower education, it would have been 9% greater, or nearly $3200 annually.
Why? Because unions provide workers collective power when approaching management. Without that collective power, or in the case on nonunion workers the threat of forming a union, workers have little leverage over job protection, wages, benefits and workplace conditions and input.
Of course the rules in our nation apply very differently to individuals wanting to join together to form a corporation compared to forming a union. To form a corporation, a group of individuals merely come fill out a form, pay a filing fee and voila, they are recognized by the state as a corporation. Being recognized as a union is much more difficult that merely filling out a few pieces of paper and writing out a check. The union certification process involves more hoops than circus animals must jump through.
It didn’t use to be this way. A separate piece of legislation at the state level had to be passed to form a corporation during the first several decades of Ohio’s history – which was similar to the process in every other state. The rise of corporate power before, during and following the Civil War changed all that. Now, it’s just about as easy to form a corporation as it is to get a dog license.
If it were as easy to form a union as it is to form a corporation, the power imbalance in our nation would tip much more toward the rights of working people and their families and communities. It’s a good lesson to remember on this Labor Day weekend.
These are just a few of the many issues and problems facing us, our families, communities, nation and world from the growing power and never intended constitutional rights of corporations. If won’t change one iota if all we do is prepare more in-depth reports of problems or simply try to manage the abuses by accepting that corporations have the same constitutional rights as human persons.
That has to change…fundamentally. The way forward is amending the constitution to end never-intended inalienable constitutional rights and the doctrine that political money is equivalent to “free speech,” as defined in the We the People Amendment.
Join AFSC, Move to Amend, and people from all over the country in this growing movement.