“The Sounds of Silence” is a haunting song by Paul Simon, one of America's premiere songwriters. Sadly, it has proven to be prophetic because in modern America, the sounds of silence have become deafening, with almost no coherent discussions about anything. While the causes of this widespread failure in communication are many, varied and largely unidentified, one cause can be identified, and remedied. Much of the chronic dysfunction around how we discuss corporate policy grew out of the legal doctrine of corporate personhood, which should give us hope because that doctrine can be reversed and corporate personhood ended.
In a recent interview with Tucker Carlson, Sean O'Brien, President of the Teamsters Union opened up about his basic strategy for dealing with hostile business owners. He said that he uses strikes to bring them down to where they will engage in an honest conversation about their business; how it depends on workers, and how the workers must have a decent life, touching on issues like wages, working conditions and benefits, such as health insurance and pensions.
The strike is a way to force the owners to have that healthy conversation, and once they do, the company emerges stronger, with higher productivity and steady profits. That kind of union action is not intended to break the company, but rather to put it on a healthier basis, which starts with a good conversation.
Along the same lines, 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 boardroom they never voice those concerns because in that room their only role is to increase shareholder value. Another example of the sounds of silence.
The way these instances relate to corporate personhood is that, as O'Brien states, businesses will enter into productive conversations only when their profits are threatened. What's more, it would only be when the very existence of a corporation might be threatened, by revoking their charter, that the wider community issues, such as environmental harm and cultural destruction will gain a hearing in corporate boardrooms.
To understand why revoking corporate personhood could be so important, we must step back and examine why our society chose to allow incorporation to begin with. The easiest way explain it is to focus on what is known as LLC, or Limited Liability Corporations. Say, for instance, someone in 1850 wanted to build a railroad. This is a good thing for society, as it enables people and goods to move more rapidly, across 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 to balk. The kind of folks who could finance a railroad and gain those benefits for society tended 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.
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 stray from their chartered purpose. 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 in 1886, and not something like a constitutional amendment, we could revoke corporate personhood 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 in place, the government helps to create these beings, these artificial beasts, and then just lets them loose on the landscape with virtually no state regulation, to maraud and exploit the people and the earth.
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, 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 handle of that leash would be put in the control 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 the enterprise is not benefiting the community, they have every right to revoke the privilege that they granted. They can demand that the legislature either enact new regulations of that enterprise, or revoke its charter.
With the advent of corporate personhood, wrongly declared in an 1886 Supreme Court case, Santa Clara County v Southern Pacific Railroad (118 US 394), virtually all state and local regulation of corporations came to be seen as unconstitutional. This was because when corporations were declared to be persons, they came under the 14th Amendment's provision that all persons must receive equal treatment under the law. For instance, you couldn't ban corporations from lobbying congress unless you banned all persons from lobbying congress. Other similar state regulations suddenly became unconstitutional. In short, the amendment which was ratified to ensure that recently freed slaves would receive equal legal treatment was used instead, (while mostly ignoring the plight of Black people) to ensure that corporations could operate with impunity.
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 (usually denied) 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 also function in a soft power mode. Once such de-chartering had happened once or twice, both the public and the corporate owners would take notice. 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.
To engage another analogy, consider the tables where these issues are negotiated. In our current mode, with corporate personhood protecting corporations against public influence, the table usually has just two sides, and two seats. It is management v workers, or corporation v government, or environmentalist v corporation and/ or government. In all those instances, if the conversation happens at all, it is a very narrow and limited discussion, usually centered almost entirely on money.
In a post corporate personhood nation, the table is much larger, and it is round. We come to this negotiating table not as management, or worker, or environmentalist, or parent, or consumer. Instead we come as equal, and equally concerned, citizens, and the conversation is about how we can charter some new corporation, harness some new technology or regulate an ongoing enterprise in a way that fits in with and enhances the entire community. What's more, in that mode there doesn't have to be a strike, or boycott, or lawsuit to initiate the conversation. Since any corporate charter could be revoked at the will of the community, the conversation would be never ending.
In the Tucker Carlson interview, Mr. O'Brien lamented the lack of affordable housing. Areas of Boston that previously housed union workers are now out of the financial reach of most workers. At that round table of community regulated corporations, the subject of worker housing would always be on the table, especially if it involved any corporate housing developments. In other words, at that round table, every aspect of current and future community well being would be on the table. That is the kind of thinking that we used to have, that we should have, and that we can have again.
By ending corporate personhood we can once again have those holistic, whole community focused conversations. At long last we, in our communities, could once again find our voice and the sounds of silence can be broken.
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