End Corporate Personhood to Revive Conservatism

For the most part conservatives lose the cultural wars before a shot is even fired. Or to be more precise they lose the allegiance and support of almost all the young and idealistic folks who should be their natural allies in the noble cause of liberty. Conservatives lose this all important first engagement because they don’t offer a realistic, workable response to the problem of greed and runaway corporate abuse.

Anyone with half a brain can see that corporations are running amok in our society, with monopolies and near monopolistic oligarchies, crony capitalism and cozy corporate relationships with federal regulators that squeeze small entrepreneurs out of the market.

This misuse of the free enterprise system has resulted in the largest disparity in wealth between the rich and the poor in the history of the world. Compared to the wealth and power wielded by Bill Gates and Jeff Bezos, the absolute monarchs of old Europe look like fair minded democrats. 

Then, to top it off, conservative “thinkers” offer up anemic and laughable attempts to dodge the issue, arguments like the extolling the benefits of “the invisible hand of the marketplace” (which is a true phenomenon) from Adam Smith’s “Wealth of Nations”, conveniently neglecting the fact that Smith was writing about a market of small, competitive merchants, not a market dominated by monopolies and near monopolies.

After their dodgy false arguments fail the defenders of our current corporate excess will throw the pretense of reason and logic out the window and boldly proclaim that greed is good. To which the proper response is that yes, greed is good; for the greedy. Just like cancer is good, for the cancer cells, but not so much for the entire body. In like manner, greed, which is the taking of more than is needed or deserved, is very lucrative for the greedy but not healthy for the economic community as a whole.

There is no mystery then about why most of the idealistic young people turn from the incoherence and phony rhetoric of modern conservative ideology and are instead attracted to the dubious charms of socialism. They sincerely want a future free from the obvious oppression of corporatism, even if it means they have to risk falling into another, possibly worse form of oppression in socialism.

This is all very frustrating to an enlightened, peace and justice seeking conservative, like, in all humility, me. One must presume that conservatives generally desire to conserve traditional American culture, if not actually returning to the good parts of our history, like strong communities and families, while leaving the bad parts like racism behind. However, these same conservatives seem to be completely unaware that American political culture originally provided a means by which communities could regulate corporations. We used to do this, through our state and local governments, in a way that gained the benefits of incorporation and preserved free market principles, yet kept the corporations accountable to community control, and therefore much less oppressive.

The way it was originally set up, corporations were chartered by the states (or even locally) and could be de-chartered by them without answering to federal authorities. Since they controlled the chartering process, states had a lot of regulations about how corporations could operate (More on that in a bit). That original structure was torn apart by a doubtful case from the US Supreme court in 1886, Santa Clara County v Southern Pacific Railroad (118 US 394) that simply declared that corporations are persons. This doctrine, which has no basis in the Constitution, amounts to one of the most egregious examples of judicial activism in history, the kind of judicial activism which conservatives usually oppose. Taking that doctrine that corporations are persons, and combining it with the Fourteenth Amendment’s stipulations that all persons must receive equal treatment under and protection by the laws effectively nullified the powers of the states to regulate corporations. Shortly after the 1886 ruling, as a direct consequence of it, we began to see the rise of interstate monopolies and corporate dominance of our society.

To better understand our situation, let’s examine why our society chose to allow incorporation to begin with. The easiest way I know to explain it (since I am not a corporate lawyer) is to focus on what is known as LLC, or Limited Liability Corporations. Say, for instance, someone in 1850 wanted to be involved in financing a railroad. This is a good thing for society, as it enables people and goods to move more rapidly, for greater distances and at less cost than by using horse based transportation. However, the liability that might attach to a railroad, such as if a train would derail in an urban area with great loss of both life and property, caused folks with a lot of money, the kind of folks who could finance a railroad and gain those benefits for society, to shy away from such investments because a single accident could cost them their entire fortunes.

Enter the LLC. With a Limited Liability Corporation, the investors are liable only for the amount they have invested, not for their entire personal fortunes. This makes it to where some of those rich folks will invest in the railroad, and consequently it gets built. Sure, they make a lot of money, but the entire society benefits, so some legitimate profit is not denied or resented. That is why we as a nation chose to allow incorporation.

Further, back before 1886, the states had some very creative ways of regulating corporations. Some states required open books, so the legislature could keep tabs on what they were doing. In some states one person was not allowed to sit on the board of more than one corporation. Corporations could not own shares in other corporations, and in many states, corporations were not allowed to lobby the state legislature or contribute money to political causes. These and other creative regulations, along with the ever looming threat that outraging public opinion might provoke the political response of de-chartering any particular corporation, worked to reduce corporate greed and attenuate corporate abuse.

All that would be needed to go back to that healthier mode of corporate existence would be to revoke the doctrine of corporate personhood. Since it was established by a simple court based proclamation, and not something like a constitutional amendment, we could revoke corporate personhood simply by passing a law through congress and getting a presidential signature. Admittedly, it might be a little more complex than that, since we have entered in to so many international trade agreements, but if we decide to make this change, we can get it done relatively quickly.

Many so called conservatives will object that we can’t have the government intervening in the free market like that. Puhleez! That is the kind of incoherent babble that has brought this republic to the brink of collapse. The simple irrefutable fact is that allowing businesses to incorporate is an example of government intervening in the free market to begin with. With corporate personhood the government intervenes in the free market, enabling the creation of these beings, these artificial beasts, and then just lets them loose on the landscape, to maraud and exploit the people and the planet.

In the book, “The Gangs of America”, (Berrett-Koehler Publishers, San Francisco, 2003) Ted Nace writes,
“”Sociologists call the 1897-1903 period ‘the corporate revolution’. But we have seen the real corporate revolution took place over a longer period, roughly from 1850 -1900. During this revolution, larger corporations did not merely come to dominate the American economy. More significantly, the legal structure defining the corporation as an institution was fundamentally altered. A century earlier, the framers of the American system of government had attempted to devise a ‘containment vessel’ for corporate power: the state issued charter. Now that system was completely disassembled and replaced with another whose goals were the exact opposite- as though the steel bars that had formed a cage were melted down, recycled, and used to create a suit of protective armor instead. Rather than protect democracy from corporate power, the legal system increasingly shielded corporations from legislative power.”

By revoking corporate personhood, we would metaphorically be melting the metal from that shield down, and recycling it again, to once again build an effective containment vessel for that beneficial corporate power. To go back to the previous metaphor, after the government aided in the creation of these beasts, instead of allowing them to run wild over the landscape, ending corporate personhood would ensure they would be put on a strong short leash, and the control of that leash would be put in the hands of our communities.

The political philosophy behind revoking corporate personhood is simple, valid, and hard to argue against. In the first place, incorporation is a privilege granted by the community, through the power of government, to groups or individuals because they run or propose enterprises which will benefit the community. If the people of the community come to see that some enterprise is not benefiting the community, they can rightly demand that the legislature, the representatives of the people of the communities, either enact new regulations to control that enterprise, or revoke its charter.

In a post corporate personhood nation, corporate abuses, such as greed and profiteering, paying too low of wages and charging too high of prices, environmental and social abuse, monopolistic practices, and the like could be met with strong community responses, We could match those creative corporate policies of exploitation with creative regulatory plans of our own, and this time we wouldn’t have to play the game of “Big Brother May I “with the federal courts to get their permission to do so. The creativity of the corporations could be matched and checkmated by the human creativity in our communities. This would put the relationship of corporations to communities back on a more even keel, a healthier basis.

What’s more, the power states would have to de-charter corporations that had outraged public opinion would be of immeasurable benefit. Once such de-chartering had happened once or twice, both the public and the corporate owners would feel and understand that new power. Decision makers in the corporations would know that there was a line that must not be crossed, but no one would know precisely where that line was drawn. The happy result would be to motivate the corporations to be much more self policing when it came to possibly abusive schemes.

Erin Brockovitch, she of movie and lawsuits against corporations fame, was once heard in an interview stating that she knew some corporate executives who agreed with her concern about the environment, but that in the boardrooms they never voice those concerns because in that room their only role is to increase shareholder value.

 In a post corporate personhood world, those same executives would find their voices in the corporate boardrooms, because the corporations would be self policing, not knowing how far they could go before crossing that line of community outrage. Thus in a post personhood corporate boardroom concerns about community well being, which would include worker, community and environmental well being, might always relate to shareholder value and would always, therefore, be on the table. The idealistic executives might not win every debate, but their idealistic concerns would always get a hearing.

That then is the way things would tend to go in a post corporate personhood economy. If we conservatives would embrace this change, we would find that it would yield a prosperous economy that was much more beneficial to our workers, our families, our communities and our planet.  Plus, it would attract a lot of idealistic young people to the conservative cause, empowering us to win a lot more elections

What’s more, and the most important point at this time, by taking on the challenge of ending corporate personhood and returning this nation to the economic system it was founded with, we would be holding up a shining example of the blessings of traditional American liberty for the consideration of a new generation of Americans. Additionally, by freeing conservatism from the chains of big business in this way, the entire agenda of Local Community Moral Self Government would start to make a lot more sense to all of us, greatly increasing the likelihood that we can actually re-found our republic on the basis of LCMSG.