The Corporate Achilles Heel

The Corporate Achilles Heel
by Rick Casey

Protest rally on the first anniversay of Citizen’s United,
Boulder, CO
January 21, 2011

Introductory Remarks

I’d like to thank the Boulder County Democrats, the Coffee Party, and especially Move To Amend, its founders and its many volunteers, and all the other people who are here today working on these fundamental and vitally important issues: corporate personhood and the disastrous Supreme Court ruling on Citizens United. Both must be reversed; but today I want to emphasize what I consider the Achilles Heel of the power of corporations: namely, the legal fiction that we call corporate personhood.

The Setting

Corporations are some of most powerful organizations in the history of the world. It’s said that of the 100 largest economies on the planet, 51 of them are corporations — and that statistic is several years old. Maybe it’s even more now. They have grown so powerful that it is difficult indeed for even the US government to control them — but I don’t need to tell you that. You know this! So how can we, the common people, ever hope to bring them under control? How can we even have the audacity to think that we, the common people, can even confront them, these mighty corporate behemoths which stop at nothing in their quests for riches and power, which are trashing our planet, eroding our communities and which have turned our hard-earned democratic form of government into a joke that is governed by a financial plutocracy?

Why? Because we have the truth on our side.

How? Because the very concept of a corporation is a legal fiction.

The Early History

A corporation does not exist in Nature. It was not made by God. It is never mentioned in the Constitution. Corporations exist in their current form in our country only because the Supreme Court of the United States says that they can exist in that form. But is the Supreme Court always right? Are they so perfect that, in their infinite wisdom, we should allow them to perpetuate this blatant falsehood — that a corporation is equal to a human being before the law? No, my fellow citizens, we should not! And this is why:

Because corporate personhood is a legal fiction with the flimsiest of foundations. It was never actually decided by a court decision. It was never legislated into existence by any legislature. No, it was established by hook and by crook, I would say — and I think if you read the history of how it happened I think that is exactly how you would describe it too.

You should know it for certain that corporations were kept on damn short leashes by all the state governments, where they were incorporated, during the first 75 years of our country’s existence. Every American patriot who fought in the Revolution knew they weren’t just fighting the King’s army — they were also fighting against the Crown Charted corporations that operated the American colonies on the King’s behalf. So when the newly formed American states allowed a corporation to come into existence, it could only do so for a specific stated purpose that served a specific local need and for a specific period of time. Corporations could not own other corporations. When their charter expired, the assets were divided among the shareholders, and it was dissolved. And if they did not operate within the stated purpose of their charter, they were either fined or their charter was revoked — pronto! Dozens of corporations had their charters revoked in first half of the 19th century. The young Nation, and its founding Fathers, were rightfully wary to keep the power of corporations under strict control, because they had known firsthand what it meant to be dominated by giant, transnational corporations, such as the East Asia Company.

The Change

So how did this change? It changed when the railroad companies, in the aftermath of the Civil War, began craftily using the 14th Amendment to their own legal advantage. That Constitutional amendment, which helped to end the Civil War and was passed in 1868, was supposed to grant citizenship to anyone born in America, and to overturn the Dred Scott decision (another astoundingly bad Supreme Court decision in 1857). Do you think when the US Congress passed the 14th Amendment, they thought they were establishing corporate personhood? I don’t think so!

No, to my mind, the 14th Amendment was perverted — yes, perverted I would say is about the right word to describe this disastrous turn of events — by Corporations to apply the Amendment to themselves, as legal persons in the eyes of the law. Don’t believe me? It’s true! The first such Supreme Court case was Santa Clara Country vs Southern Pacific Railroad in 1886, where the term “corporate person” was first used — but not in the case itself. No, it was interjected into the court summary by a clerk! A clerk! It was never even mentioned by one of the Supreme Court justices in their decision. But once established, a precedent was set, and that is how this legal fiction got established: by corporations, mostly railroads, which were the largest corporations back then, who agressively pushed a concious legal strategy to achieve it. And so it spead: between 1886 and 1910 there were 307 more cases brought before the Supreme Court regaring the Fourteenth Amendment. Nineteen of them involved the rights of African Americans; two hundred and eight-eight of them were about Corporations seeking human rights. And that, my friends, is how this legal fiction started. (1)

The Aftermath

But is this such a bad thing, you might ask? Should we be so concerned that something so remote, so artificial, this complicated legal abstraction really be of such concern to us? And besides, it has been around since 1886, one hundred and twenty five years. How can we ever expect to reverse 125 years of corporate law?

My friends and fellow Americans, it’s because we have to do this. We simply have no choice. Corporations have used this legal fiction over the last 125 years to bend and shape and force and warp our entire economy — really! the entire legal and financial system that supports the economy, and without which it could not operate — into an economy that exists for the health and well being of who? [pause….then softly] Not human beings. Not for the nurturing of our children. Not for sake of families and communites, where human beings are meant to grow and develop, be educated…and play….and love.

NO!! We have an economy that exists for the health and well being of General Motors, of Exxon, of Goldman Sachs, and for the military industrial complex that eats up over half of each your tax dollars, year in and year out!!! Just look at who is most rewarded in our economy — and you will see why the economy exists.

The Right Thing To Do

So, I ask you again, how can we, the common people, the little people, dare to stand up against these colossal economic empires? It is a dark time in our country, a dark time….but does that mean we give up? There have been dark times in our country before….and some people did not give up…such as Howard Zinn, the late great historian, who knew full well the dangers of excessive corporate power; and here what he might say today:

“To be hopeful in bad times is not just foolishly romantic. It is based on the fact that human history is a history not only of cruelty, but also of compassion, sacrifice, courage, kindness. What we choose to emphasize in this complex history will determine our lives. If we see only the worst, it destroys our capacity to do something. If we remember those times and places–and there are so many — where people have behaved magnificently, this gives us the energy to act, and at least the possibility of sending this spinning top of a world in a different direction. And if we do act, in however small a way, we don’t have to wait for some grand Utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory.” 2

Yes, my friends — reversing corporate personhood is the right thing to do!!
Let’s get started today!!
Thank you!!

1 Hartmann, p. 105

2 Zinn, p. 208

References


Constitutional Accountability Center (2010). A tale of two courts: Comparing corporate rulings by the Roberts and Burger courts. 1200 18th Street, N.W., Suite 1002, Washington, D.C. 20036. www.theusconstitution.org.
 


Barry Friedman (2009). The story of ex parte Young: Once controversial, now canon. New York University School of Law, New York University Public Law and Legal Theory Working Papers, NELLCO Year 2009. barry.friedman@nyu.edu. (Friedman is Fuchsberg Professor of Law and Vice Dean, New York University School of Law. B.A., University of Chicago, 1978; J.D., Georgetown University Law Center, 1982. His faculty biography calls him a leading authority on constitutional law.)

David H. Gans & Douglas T. Kendall (2010). A capitalist joker: The strange origins, disturbing past and uncertain future of corporate personhood in American law. Constitutional Accountability Center. www.theusconstitution.org.
Howard Jay Graham (1968). Every man’s constitution. Madison, Wisconsin: State Historical Society of Wisconsin.

Thom Hartmann (2002). Unequal protection: The rise of corporate dominance and the theft of human rights. Rodale.

Ted Nace (2003). Gangs of America: The rise of corporate power and the disabling of democracy. San Francisco: Berrrett-Koehler, 2003.

Howard Zinn (1980). You Can’t Be Neutral on a Moving Train: A personal history of our times.

For more information, see:
movetoamend.org

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The Economy and Mental Health

With the nation grieving over the recent shooting in Tuscon, there has barely been any acknowledgement in the mainstream media of the fact that Jared Loughner is afflicted with a mental illness (i.e. a brain disorder), but did not get help. On Democracy Now’s show this morning (Jan 11, 2011) however, there was a balanced and compassionate interview of one Loughner’s past classmates in a poetry class. It demonstrated that this young man clearly stood out from his classmates due to poor socialization skills, but was highly functioning, enough to be attending classes at a community college. Even though symptoms of his mental illness had been apparent since high school, he nor his parents apparently ever sought, or been offered, treatment for it. Instead, the community college he was attending last fall withdrew him from class, and forbade him from coming on campus until he had obtained treatment, and been given a clear bill of health from a mental health professional that he was not a danger to himself or others.

Because of the drastic cuts in support for the public mental health system in Arizona, the only way Loughner could have done this, apparently, would have been to personally contact a psychiatrist and pay for this himself, which was highly unlikely. There were no other public services available, as described by another interview in the episode with a representative from NAMI, the National Alliance for Mental Illness. NAMI is the foremost organization in the country that is seeking to achieve greater awareness of the widespread distribution of mental illness across all strata of society, and the need to develop more investment in its treatment, particularly the sources of the illness, and reducing the stigma associated with it. This is quite apparent in how the mainstream media is typically hesitant to address the issue directly. Recognizing this, NAMI’s current executive director has provided a clear procedure for how the media should be reacting to the issue.

But in terms of public safety, the first such preventive measure is detection. In that Democracy Now interview, the NAMI representative related a story about his own son, who was excelling in school as a teenager where their family was living in Belgium at the time. The school counselor called him, saying that his son needed to be withdrawn from school for a while. Surprised, he asked why? The answer was that the son had been diagnosed with schizophrenia. This was a painful realization, but at least the family was made aware this illness, which they have had to deal with since then. In hindsight, it is worth contemplating if this tragedy in Tuscon might have been prevented had there been an alert counselor in Loughner’s high school, well trained to identify mental illness traits.

However, there is a deeper theme to this tragedy which deserves greater discussion, namely that our society is destined to produce more such tragic incidents until we acknowledge the role of good mental health in our country — and that good mental health starts with healthy, intact families, especially during childhood. The data about healthy, intact families in this country is a sheaf of bad news. This issue has been recognized and extensively diagnosed by some of the more insightful among us, such as David Korten and Riane Eisler. Consider this passage from Korten’s The Great Turning (p 336) which illustrates the direct connection between deterioration of intact families and the economic policies advocated by the conservative right:

The New Right’s propagandists would have us believe that family stress and breakdown are the fault of gay marriage, abortion, feminists, immigrants and the liberals who support them. They are prepared to blame most anyone or anthing except their own economic and social policies. In pursuit of their own personal power and profits, New Right leaders [Author’s note: think the newly elected Republicans in the House led by John Boehner] work tirelessly to
  • roll back health and safety standards for the environment, consumers and workers, including workplace standards, a meaningful minimum wage, and the right to form unions to bargain collectively for improved wages and working conditions;
  • drive down wages and benefits for working people through international job outsourcing;
  • shift the tax burden from the investor class to the working class;
  • eliminate public services and safety nets, including public education and Social Security [Author’s note: and public mental health services in Arizona?];
  • generate military contracts for crony corporations;
  • secure intellectual property to facilitate monopoly control and pricing of access to information and technology, including essential seeds and medicine;
  • increase tax breaks and subsidies for large corporations to give them a competitive advantage over local businesses.
Each of these policies transfers wealth and power from ordinary people to the ruling elite and leaves families and communities without the means to provide their children with the essentials for healthful physical and mental development.
The following are but a few of the consequences. The details of this list are specific to the United States, but similar consequences are being experienced nearly everywhere as a direct consequence of neoliberal policies [of the New Right (Author’s note)].
  • High unemployment undermines family formation, and punitive welfare policies force single mothers into jobs paying less than a living wage without affordable, high-quality child care options. Even two-parent households are forced to piece together mulitiple jobs, allowing no time or energy for child care or for a normal family and community life. Parents are thus forced to abandon their children to television and an unregulated entertainment and gaming industry that finds it profitable to fill their minds with images of sex and violence and to actively undermine parental authority and values.
  • Corporations spend billions on direct marketing to children to create lifetime additions to junk food, alcohol and cigarettes, and a childhood obesity epidemic is poised to become the leading cause of premature death.
  • Declining health care coverage and skyrocketing health care costs place essential health care beyond the reach of most families.
  • A deteriorating public education system is unable to deal with the special needs of children physically and mentally [Author’s emphasis] handicapped by the consequences of growing up in physically and socially toxic environments, let alone deal with normal individual differences in learning styles and talents.
  • Lax environmental regulations allow corporations to discharge into the air, soil, and water massive quantities of tens of thousands of toxins destructive of children’s physical, neurological, and endocrinological development.

Intended or not, these conditions are all a direct result of the neoliberal economic policies that are the real priority of the corporate plutocracy. They leave families with few or no good options, and the lead to mental stress, family breakdown, divorce, the destruction of community life and a coarsening of moral values. The New Right argues that it is the responsibility of parents, not the state, to provide proper care for their children. Ideally, that would be the case; but the policies the New Right advances virtually guarantee that the substantial majority of parents are unable to fulfill this responsibility.

These words, published in 2006, ring prophetically over the tragic event in Tuscon on January 8, 2011. I hope some of new elected representatives in the House will hear them and take them to heart.

Creative economic fix-its? Please, spare us…

[This was a letter to David Segal, a prominent New York Times reporter who writes on various economic topics, usually in the business section. Normally I enjoy his stories, but this one was a real bomb….and on the front page of the Sunday business section, no less…sent Dec 5, 2010]

Dear Mr. Segal,

While I usually enjoy your economic articles, I was rather disappointed with your piece last Sunday (Nov 28, 2010) “Economic Fix-Its.” Where do you find such inept economists who provide such inane and superficial recommendations? For a more balanced, informed and penetrating treatment of our economic malaise, please consider Robert Reich’s recently published Aftershock. In it you will a rigorous and trenchant treatment of our problems, which deserves greater public discussion. It’s not hard to see why there’s a lack of good jobs in this country: they’ve been outsourced for decades by American corporations who care for little beyond their own bottom line. Witness Intel’s massive investment this year in Vietnam — not only for their own factories, but in that country’s schools, to provide a more educated labor force! Would that they could be investing in the human capital in this country instead. Please try to contribute to a clearer understanding of our economic problems, instead of obsfucating it.

Sincerely,
Rick Casey

Free-market environmentalism is an oxymoron!

[The following is a response to an editorial that appeared in the July 12, 2010 issue of the Colorado Daily, by a J. Craig Green, P.E., from the Independence Institute, a conservative think tank based in Golden, CO. You can rest assured that the financial backers of the Independence Institute and the Environment Research Center in Bozeman, MT, mentioned in the editorial, are backed by conservative corporations with an interest in privatizing natural resources. I tried to uncover this by accessing their Form 990’s online, but was unsuccessful (The Form 990 is a public document that all non-profits that are 501(c)3 corporations must provide, which is supposed to show their source and use of financial funds.)]

Dear Colorado Daily,

I would like to respond to the editorial “Free-market environmentalism” by J. Craig Green on July 12, 2010.

My desire to address this is based on my teaching of environmental economics at Front Range Community College, and holding a masters degree in economics from the University of Pennsylvania. I do not know what Mr. Green’s training is in economics, but as a professional engineer, I am sure he should be able to grasp some fundamental concepts from environmental economics which he seems to be lacking — beginning with a public good.

A public good is one that cannot be easily packaged, whose consumption by one person does not reduce its availability to someone else, and is difficult to exclude others’ access to it. The classic example is a lighthouse: no one’s “consumption” of the light from a lighthouse diminishes another’s consumption. I like to tell my students that environmental quality is the ultimate public good.

The other basic lesson about public goods is that private markets will consistently underproduce them, and do a terrible job of providing them if they try. This is due to the fact that public goods are inherently difficult to package and price, which rather destroys the incentive of firms to enter such markets. Coming up with ways of valuing the environment, such as clean air, clean water, aesthetic enjoyment, and ecological services, in order to develop market-like mechanisms that can be used to protect them, are major and difficult fields of study in environmental economics. Mr. Green’s rather glib assurance that “private property owners have more incentive and control to take care of property they own” completely misses the point. No one can “own” environmental quality, Mr. Green’s assertions notwithstanding.

No, the hidden agenda of “free-market environmentalists” and their minions is what really needs to be discussed here: the insane and dangerous greed of major corporations to privatize public resources for their own benefit. This is nothing new; it has been going on throughout history. The “free market” system was producing colossal environmental pollution before the environmental movement began to reverse this damage in the Sixties, a struggle which continues today. Mr. Green’s other cheap swipes at the Obama administration, and incomprehensible mischaracterisation of excessive public debt as the cause of the 2008 financial meltdown, only further discredits his biased, incomplete and incorrect analysis.

Sincerely,
Rick Casey

“Americans For Prosperity” – What A Joke!

[This is a letter I wrote to the editor of the Colorado Daily, a small Boulder newspaper that caters to the University of Colorado community, in reaction to an editorial they ran on June 7, 2010.]

Dear Colorado Daily,

I wish to respond to the editorial in today’s paper, “FCC shouldn’t regulate Web” by Phil Kerpen of Americans for Prosperity.

I must strongly disagree with Mr Kerpen’s conclusion that the FCC should be prevented from “regulating” the Internet, as well as his erroneous assertion that “The Internet — in the absence of regulation — has flourished into a remarkable engine of economic growth, innovation, competition and free expression.” The Internet is a wonderful invention, it is true, but Mr Kerpen’s twisting of the issues needs some correcting.

The Internet, as well as the entire telecommunications industry, has always been regulated since shortly after it got started — as it must be, if society is to derive the full benefits of this wonderful technology. This was painfully learned early in the 20th century, when unbridled competition between private telephone companies was creating a maddeningly inefficient and wasteful industry due to duplication of phone lines. The result was granting a licensed monopoly to the Bell Company, which created the best telecommunications network in the world for decades. I speak from some experience: I earned an MS in Telecommunications at CU-Boulder in 2002, where I studied the issue of competition in telecommunications in some detail, and in fact won a national prize in 1999 from the International Communication Association for my essay on industry competition in the aftermath of the 1996 Telecommunications Act.

The case brought by the FCC against Comcast for the slowing of Bitorrent traffic was dismissed on the legal technicality that the FCC “lacked authority” to regulate the broadband industry. This flies in the face of common sense, and deserves to be overturned; it is certainly reason enough for the FCC to be explicitly granted that authority by Congress — but which has been hog-tied by lobbying interests from the telecommunications industry, as was evident in the 1996 Act. Actually, in this case the FCC was striving to preserve net neutrality — the true cornerstone which makes the Internet work so well. This was an entirely serendipitous development stemming the Internet’s evolution. It developed almost entirely within the US academic research community in the latter 20th century, after the seminal technology was invented as a result of DARPA reseach in the early 1960’s. This is something the “free market” could never have delivered, and it is preposterous for Mr Kerpen to even suggest it. Apparently he also doesn’t have a clue as to how the software on which most of the Internet runs was developed and is still maintained by the global open source software community. If this court decision is allowed to stand, it will be the first crack in the wall of net neutrality, leading to a slippery slope with the other big carriers beginning to discriminate in their handling of Internet traffic, who will start to nickel and dime everyone they can for how their Internet services are delivered. This is a marketplace nightmare which we should strenuously seek to avoid.

Furthermore, Mr Kerpen’s shrill mischaracterization of the issues on so many other points, e.g. “..Washington takeover…FCC extremism…free-market Internet…mobilizing the public”… are all indicators that point to his underlying “Trojan horse” mission: to establish corporate power over a public resource, disguised as an effort to do good for all. No, make no mistake: Mr Kergen, and his band of scheming colleagues over at the misnamed “Americans For Prosperity” camp, need to be shown for what they are: a front for naked corporate power, who deliberately twist the truth for a hidden agenda that seeks to confuse the public with their doublespeak, rather than empower them with a knowledge of history and plain facts.

Rick Casey
1118 Centaur Circle #D
Lafayette, CO 80026
303.345.8893

Push BP out of the way now!

As the Gulf oil disaster continues, the credibility of BP to shut down the oil leak they created decreases day by day. The patience of the American public is wearing thin: how long will it be before BP must be pushed out the way to get the job done?

It is a mistake to assume, as the federal government has done up to now, that only BP has the “expertise” to do this. What has this so-called expertise accomplished? How much longer can this “expertise” be allowed to bungle the job?

I would like to suggest to the blogosphere another option: that the US government force BP out of the way, take over control of the operation, while keeping BP in an advisory role. Call in leading experts for a new plan: to plant explosive charges to seal the blowout through geological means.

The circumstances of this pollutive catastrophe are without precedent – and may therefore require unprecedented solutions. Shutting off of this eruption by implanting subsurface charges in strategic locations, determined by the best seismic and geologic information available (which BP surely must have), is beginning to appear, at least to this author’s mind, the only permanent solution to this horrific ecological catastrophe.

Stronger action must be taken immediately; the longer we delay, the greater the damage will be.