Corporations, Law, & Democracy

V irginia 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.