Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (3 page)

Against such odds, discouragement comes easily. But if the generations before us had given up, slaves would be waiting on our tables and picking our crops, women would be turned back at the voting booths, and it would be a crime for workers to organize.
Like our forebears, we will not fix the broken promise of America—the promise of “life, liberty, and the pursuit of happiness” for all our citizens, not just the powerful and privileged—if we throw in the proverbial towel. Surrendering to plutocracy is not an option. Confronting a moment in our history that is much like the one Lincoln faced—when “we can nobly save or meanly lose the last best hope on earth”—we must fight back against the forces that are pouring dirty money into the political system, turning it into a sewer.

How to fight back is the message of this book. Jeffrey Clements saw corporate behavior up close during two stints as assistant attorney general in Massachusetts, litigating against the tobacco industry, enforcing fair trade practices, and leading more than one hundred attorneys and staff responsible for consumer and environmental protection, antitrust practices, and the oversight of health care, insurance, and financial services. He came away from the experience repeating to himself this indelible truth: “Corporations are not people.” Try it yourself: “Corporations are not people.” Again: “Corporations are not people.” You are now ready to join what Clements believes is the most promising way to counter
Citizens United:
a campaign for a constitutional amendment affirming that free speech and democracy are for people and that corporations are not people. Impossible? Not at all, says Clements. We have already amended the Constitution twenty-seven times. Amendment campaigns are how we have always made the promise of equality and liberty more real. Difficult? Of course; as Frederick Douglass taught us, power concedes nothing without a struggle. To contend with power, Clements and his colleague John Bonifaz founded Free Speech for People, a nationwide nonpartisan effort to overturn
Citizens United
and corporate rights doctrines that unduly leverage corporate economic power into political power. What Clements calls the People’s Rights
Amendment could be our best hope to save the “great American experiment.”

To find out why, read on, and as you read, keep in mind the words of Theodore Roosevelt, a Republican, who a century ago stood up to the mighty combines of wealth and power that were buying up our government and called on Americans of all persuasions to join him in opposing the “naked robbery” of the public’s trust:

It is not a partisan issue; it is more than a political issue; it is a great moral issue. If we condone political theft, if we do not resent the kinds of wrong and injustice that injuriously affect the whole nation, not merely our democratic form of government but our civilization itself cannot endure.

America’s story is one of defiant struggle against the odds for an improbable vision: that all people, created and born free and equal, can live and govern together “in the pursuit of happiness.” This dream of a society of free people with equal rights, where people govern themselves, was unlikely indeed in the eighteenth century. In a world of empires, governed by royalty and divided by class, and in our own country, with millions enslaved, where women were considered the property of their husbands, and where land ownership was considered a prerequisite to participation in government, the pursuit—let alone the fulfillment—of this vision was far-fetched indeed.

Yet we Americans never let that vision go, despite dark days. In generation after generation, for more than two centuries, the power of this dream drove us and inspired the world. Despite all of the contradictions, shortcomings, missteps, and failures along the way, this basic American story remains true, and it is an undeniable triumph of the human spirit. Cynics and critics will have their say, but Americans really did come together to defeat the British Empire; to overthrow the evil of slavery and work for justice; to secure
equal voting rights for women; to insist that everyone, not only the wealthy, has an equal vote and voice; to suffer, work, and fight year after year to defeat fascist, communist, fundamentalist, and totalitarian challenges to our vision of democracy, equality, and freedom.

People are free. People are equal. People govern. We have lived by that and died for that, and whenever we fell short, we worked and sacrificed for that, to ensure, as Abraham Lincoln said in one of our darkest moments, “that government of the people, by the people, for the people shall not perish from the Earth.”

To triumph again over powerful enemies of human equality, dignity, and freedom in our generation, we must properly identify the challenge and bring clarity of thinking and action to making our republic work again. As so often before, success and struggle begin with the simplest of propositions: Corporations are not people.

On January 20, 2010, the Supreme Court of the United States concluded, in effect, that corporations are people and have the people’s First Amendment free speech rights. According to the Supreme Court in
Citizens United
v.
Federal Election Commission,
we Americans cannot prevent corporations from using billions of dollars to control who wins and who loses elections or to control what our representatives in Congress and in state and local government do or do not do. In one stroke, the Court erased a century or more of bipartisan law and two previous Supreme Court rulings that affirmed the right, if not the duty, of the people to regulate corporate political spending to preserve the integrity of American democracy. Eight months after
Citizens United,
we had the most expensive election in American history, with nearly $4 billion, much of it secret corporate money channeled and laundered through front groups, spent to define who was good, who was bad, and what issues mattered. Nearly six out of ten eligible American voters did not even bother to vote.

Citizens United
is not merely a mistake easily corrected, nor is the case simply about campaign finance or money in politics.
Citizens
United
is a corporate power case masquerading as a free speech case. In many ways, the decision was less a break from the recent past than a proclamation about the sad reality of corporate power in America. The Court’s declaration in
Citizens United
that corporations have the same rights as people must strike most Americans as bizarre. To the five justices in the majority and to the corporate legal movement out of which they have come, however, it was more like a victory lap or an end zone dance for the three-decade-long campaign for corporate power and corporate rights.

This campaign, begun in the 1970s, had already succeeded in creating a corporate trump card to strike down federal, state, and local laws enacted for the public’s benefit. Even before
Citizens United,
the fabrication of corporate rights and the reality of corporate power controlled economic, energy, environmental, health, budget, debt, food, agriculture, and foreign policy in America.

The results? Massive job outsourcing abroad; destruction of our manufacturing capacity; wage stagnation for the vast majority of Americans and unprecedented enrichment of the very few; uncontrolled military spending and endless wars to secure energy supplies from a region from which we should have cut our dependence long ago; out-of-control health care spending at the same time that millions of people cannot get health care at all; bloated and unsustainable budgets and debt at every level of government; national and global environmental crisis; loss of wilderness and open land, and the takeover of public hunting and fishing grounds; chain store sprawl and gutting of local economies and communities; obesity, asthma, and public health epidemics; and a growing sense that the connection between Americans and our government has been lost.

Bill Moyers, the acclaimed journalist, has been an optimist for much of his legendary career as he explored faith and reason, war and peace, and the progress of American democracy. Here is
what he said in Washington in late 2010:

Democracy in America has been a series of narrow escapes, and we may be running out of luck. The most widely shared assumption of our journey as Americans has been the idea of progress, the belief that the present is “better” than the past and things will keep getting better in the future. No matter what befalls us—we keep telling ourselves—“the system works.”

All bets are now off. The great American experiment in creating a different future together has come down to the worship of individual cunning in the pursuit of wealth and power, with both political parties cravenly subservient to Big Money. The result is an economy that no longer serves ordinary men and women and their families. This, I believe, accounts for so much of the profound sense of betrayal in the country, for the despair about the future….

America as a shared project is shattered, leaving us increasingly isolated in our separate realities
.
¹

We do not have to live with this. We can put the American project back together again.

First, though, we need to see where
Citizens United
came from and how much we have lost to the triumph of corporate power. Most of the first six chapters of this book examine these themes from different perspectives. In
Chapter Three
, I digress to examine what a corporation actually is as a matter of law and fact. This may be a digression, but it lies at the heart of why corporations can have no constitutional rights superior to the rights of the American people to make laws governing corporations. Corporations are not merely private entities, owing no duties to the public. Corporations are legal creations of government.

I close with three essential steps to roll back corporate dominance of government: (1) a twenty-eighth amendment to the Constitution
that will overturn
Citizens United
and corporate rights and restore people’s rights; (2) corporate accountability and charter reform to ensure that corporations better reflect the public policy reasons for which we allow the legal benefits of incorporation, such as limited liability, in the first place; and (3) election law reform, including increased public funding, greater transparency, and an end to legal political bribery.

Citizens United
confronts us again with the basic question of American democracy—what do we mean when we say, as we do in the opening words of the Constitution, “We, the People”? That question drives the central narrative of the American story, and it is why a constitutional amendment campaign to reverse
Citizens United
is so important now.

Amendment campaigns are how we make the American vision of equality and liberty a reality. Amendment campaigns are how we accomplished much that we now take for granted:

All people are equal.

Every citizen of every gender, race, and creed gets to vote and participate in our society.