Corporations, Law, & Democracy




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Rasmussen and Mary Zepernick are members of the Program on Corporations,
Law and Democracy (POCLAD), a group of 12 organizers, researchers,
activists, teachers, and former elected officials working to
expose the hidden history of corporate power in the United States
and world at large. They also work with the Women’s International
League for Peace and Freedom (WILPF) promoting its national
campaign to abolish corporate personhood. 




DANIEL MCLEOD:




Initially the Founding Fathers
were very suspicious of the political power corporations could
wield and kept them on a short leash. How did they ensure the
corporate form was subservient to popular will? 



RASMUSSEN: The charter of the corporation was given by state
legislatures and state legislators were the only figures in
government actually elected by the people. That’s where
they placed the chartering of corporations and those charters
were very specific in their content. The purpose of the corporation
was made clear: a corporation could not suddenly start doing
something outside of that purpose. They were liable for harms
done; their records had to be open to the public at any time;
they were subject to trial by jury; they could not own stock
in other corporations; they were limited to a certain size and
they could be brought before a legislature or state courts and
have their charter revoked when they violated this publicly
granted agreement. Over the years this way of defining corporations
was eroded and eventually the power of the charter disappeared. 


ZEPERNICK: The phrase “common good” was a prevailing
value in relation to the corporate form. In 1834 the Pennsylvania
state legislature defined a corporation as “just what the
incorporating act makes it. It is a creature of the law and
is to be molded to any shape or any purpose the legislature
may deem conducive for the common good.” Not only did the
process of chartering unravel in terms of having any real teeth
or meaning, but that concept of common good as guiding decisions
and definitions also disappeared. 




A major perversion of democratic ideals and practice took
place in 1886 when the Supreme Court granted corporations legal
personhood. What is this doctrine?

 


ZEPERNICK: It is the inclusion of the corporate form under the
14th Amendment to protect persons. It means including the corporate
form in that definition of “person.” From there, in
court case after court case, the corporate entity has accumulated
the actual rights of human beings, including Bill of Rights
protections. 


RASMUSSEN: The Bill of Rights basically grants human beings
protections from the government. So when a corporation is defined
as legally equivalent to a person it has then become eligible
for Bill of Rights protections.  


ZEPERNICK: It has been said, “Slavery is the legal fiction
that a person is property and corporate personhood is the legal
fiction that property is a person.” 




It’s amazing that corporations gained personhood
over night while women, Native Americans, the propertyless,
and African Americans had to struggle for generations to win
that recognition. 



RASMUSSEN: Corporations were not innocent bystanders with regard
to humans being denied rights. They knew as the corporate entity
gained legal rights, its dominance would be measured by the
degree to which natural persons were refused those rights. Those
behind the corporate shield were looking carefully at the powers
being accumulated by real people and making sure that their
own power was not shrinking too rapidly. 




Virginia, you once thought, in the heyday of 1970’s
regulation, that the common good was finally being defended.
How do you feel now? 



RASMUSSEN: The 1970s were seemingly a bright period in the life
of social change. Many laws were passed to protect us from toxic
substances, clean up our water and our air, help us address
waste and conservation issues and set endangered species regulation.
At the time most of us thought this was really going to make
a significant difference. The activism of the people was really
working its way through the system into legislation into law.     


But in the decades that passed we became aware that this kind
of regulatory law does not come from the grassroots. It’s
law designed by the propertied few to protect them from the
people. It concedes power to the corporate decision-makers and
protects those decisions from us rather than the other way around. 


It does occasionally allow you to move through the legal system
into the courts and win a decision against a corporation. But
we have come to see these as false victories because they co-opt
us back into that exhausting and diversionary regulatory system
which ultimately keeps us busy while the dominant power remains
in place. That power shapes the production, investment, work,
and technologies that define our lives and our labor. Those
who are being regulated design regulatory agencies. Labor law,
in the end, regulates workers and environmental law regulates
environmental activists. 




Also during the 1970s the themes of “corporate responsibility,”
of good “corporate neighbors” and “corporate
citizenship” hit their stride. How should we read this
thinking? 



RASMUSSEN: This is another way of diverting our attention to
corporate behavior. This is what the regulatory system is all
about. So we go after the behavior of corporations as opposed
to looking at the nature of the corporation itself. The combination
of corporate legal powers gained over the last 150 years and
the mandate within the capitalist system is a powerfully destructive
combination. It’s rapidly doing us all in and the earth
as well, but as long as we stay focused on this or that specific
harm they do, their capacity to define and destroy will remain
in place. So this notion of “good corporate citizenship”
is one more diversionary tactic. 




Do you see new forms of activism grounded in asserting
people’s sovereignty? 



ZEPERNICK: Yes. For instance, POCLAD has worked very closely
with an attorney, Tom Lindsay, who formed the Community Environmental
and Legal Defense Fund in central Pennsylvania.      


He focused on environmental issues, working with farmers and
developing enough trust and confidence that township supervisors
came to him for help in resisting the encroachment of corporate
hog farms. Through very cooperative, democratic work in that
area, ten townships have passed ordinances banning corporate
farms and there was tremendous learning and democratic discussion
among the citizens. They’re discovering that they can govern
themselves—decide what goes on in the communities, how
the food was grown, by whom, and so on. 


The latest wrinkle is that corporate organizations like the
Farm Bureau have sued one of these townships. They came right
out in the open and listed all the things that have accrued
to the corporate form because of personhood and other decisions:
Due Process, Equal Protection, the Commerce Clause, the Contract
Clause, the state constitution, and so forth. 


So
the struggle is joined and it is creating what we call a “crisis
in jurisdiction” between the local government, the state
government, and the feds. Last spring there was a conference
of local Pennsylvania governments and some 350 municipalities
asserted their right to self-governance. Point Arena, California
organizers gained a city council resolution agreeing that corporations
should not have the rights of personhood. Arcata, CA, has recently
limited the number of national restaurant chains that can come
in. In a variety of ways local communities are waking up and
saying, “It doesn’t have to be this way.” Of
course, we’re going to see a great deal of legal struggle
and beyond, but that’s what needs to happen.      


RASMUSSEN: In the labor movement there is a growing awareness
that the struggles they engage in take place within a very narrow
range of possibility. This range is defined largely by the managerial
and owning class and not defined in any way by the working people.
They’re beginning to say, “When we go into a workplace,
why is it that we lose our rights as citizens: the right to
speak about conditions of our work life, to organize, to associate?”
That’s an unconstitutional arrangement and yet that’s
the place we’ve been relegated all these years. They’re
saying, “We’re going to argue our cases on larger
issues of human rights, not just on matters that address wage
and benefits.” They’re looking in the 13th Amendment
of the Constitution that says involuntary servitude shall not
be allowed in the United States. They are saying, “Look,
if you go into the workplace and are not a citizen anymore isn’t
that rather like being in service—involuntarily—to
that corporation? Isn’t that unconstitutional?” 


ZEPERNICK: We’re talking about the need to change the culture
and that’s frustrating to some activists because it’s
long-term stuff. It doesn’t mean that you don’t work
on immediate issues, but you do it in that larger framework
and take the struggle to the arenas where we have some standing—our
local state governments and so on. That’s what the abolitionists
and women did. They changed the culture enough to drive themselves
into the Constitution. The court does not hand out gifts. It
does on occasion respond to significant changes in the culture.
So we need to de-colonize our minds in tandem with a legal strategy.
A combination of those two hold out great hope. That’s
generally how systemic change has occurred in U.S. history. 




How
can POCLAD’s work help fuel today’s efforts at movement
building? What diverse interests can plug into your analysis? 



ZEPERNICK: I don’t think there are any that cannot plug
in. The challenge is to reframe our issues in order to act as
sovereign citizens, gaining the power to define our own culture,
politics, and economics. 


RASMUSSEN: For a movement to be effective it must be rooted
in the source of our problems and that’s what POCLAD is
working to do with the help of others. We’re digging for
these roots together and trying to find a way to work with them
effectively in the real world. Building a movement is essential
to making anything happen. The courts, the legislatures, and
policies don’t change without being forced to change. We
need to build large numbers of people committed to similar fundamental
understanding and vision. That’s what we’re trying
to do. 


ZEPERNICK: POCLAD is saying, “Continue to work on your
concerns and issues, but lets grapple together with how our
goals and strategies can move toward that larger common goal
of putting human beings in charge of our lives and decisions.”
I don’t think there’s a huge divide between those
who do and don’t identify themselves as activists. There
are a lot of people who, at an intuitive level, understand things
aren’t right. So I think they’re ready for these kinds
of campaigns and public education as long as we don’t marginalize
and divide ourselves. 




If these ideas catch on and translate into effective action,
what are some likely counter strategies we can expect from pro-system
pundits, PR, and politicians? 



RASMUSSEN: They will either trivialize this work or we will
be co-opted or, we’ll be bludgeoned. 


ZEPERNICK: With the growing awareness of corporate power and
abuses, we need to be especially aware of being co-opted by
“reforms,” of damage control efforts. When we look
back we can see periods of history that were massive co-optations
of some real people’s progress. There are those of us that
see the New Deal in the 1930s as co-opting the growing resistance
against the tremendous inequities exposed by the Depression.
It just patched it up and carried on. That doesn’t mean
that some of the specifics weren’t good things, like Social
Security and some other important measures, but we’re ripe
for co-opting today—a measure of our growing success and
threat to the ruling powers. It’s tempting because it looks
like a victory. That’s what the regulatory regime did in
the 1970s—it co-opted the energy of the 1960s. 


RASMUSSEN: We are presently in a better place, more resistant
to being co-opted because the notion of “progress”
is now more suspect than it was 30 years ago when the new environmental
and occupational regimes were put in place. 







Daniel
McLeod is an activist and freelance writer. He lives in western
Massachusetts.