Unequal Protection — Chapter 13: Unequal Regulation

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From THOM HARTMANN
Truthout

There can be no effective control of corporations while their political activity remains. -Theodore Roosevelt, speech, August 31, 1910

There’s a side to regulation that most people don’t think about, and it has far-reaching effects if representatives of corporations are writing the rules. Once a regulation is passed saying, “you can emit no more than 10 ppm [parts per million] of mercury,” you can legally emit up to 10 ppm. Before that rule was passed, any amount you emitted might subject you to potential lawsuits from nearby humans made ill by your emissions, by other states, or even by the federal government. The regulatory rule essentially legalizes what a corporation is doing. In the best of worlds, this wouldn’t be a problem. But in practice it means that business interests are often directly involved in writing the regulations that they themselves will have to obey.

Regulations Can Legalize Activity That Causes Public Harm

During the Reagan administration, Robert Monks and Nell Minow worked with the Presidential Task Force on Regulatory Relief. Monks says, “We found that business representatives continually sought more rather than less regulation, particularly when [the new regulations] would limit their liability or protect them from competition.”

Monks and Minow became disenchanted with the process. In their 1991 book Power and Accountability, they say, “The ultimate commercial accomplishment is to achieve regulation under law that is purported to be comprehensive and preempting and is administered by an agency that is in fact captive to the industry.” In this way corporations find an actual government shield for their actions. For example:

• Tobacco companies point to the government-mandated warnings on their labels, saying that

Unequal Protection — Chapter Twelve: Unequal Uses for the Bill of Rights

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From THOM HARTMANN
Truthout

[Article with references here]

Of the cases in this court in which the Fourteenth Amendment was applied during its first fifty years after its adoption, less than one half of one percent invoked it in protection of the Negro race, and more than fifty percent asked that its benefits be extended to corporations. – Justice Hugo Black, 1938

The statistic in this chapter’s epigraph is sobering indeed. It says corporations sought protection under the Fourteenth Amendment a hundred times more often than did the people it was intended to protect. And this is not a victimless shift—there have been real and substantial consequences. In the years following the Santa Clara decision and the cases that referred to it, companies have used their personhood rights in an amazing variety of ways. What follows in this chapter is a small selection.

First Amendment

Supreme Court Justice Oliver Wendell Holmes Jr. noted in the landmark 1919 Shenck v. United States case that shouting “Fire!” in a crowded theater does not constitute free speech; the Bill of Rights guarantees that a person’s opinion can be expressed, not that there are no limits on what one can do. But consider how this fundamental freedom has been bent by corporations since Santa Clara.

By claiming the same right as humans to express themselves, companies won approval to spend whatever they want on lobbyists in Washington. At one point there was a full-time tobacco lobbyist for every two legislators on Capitol Hill. As of 2005 there were roughly 64 registered lobbyists for every member of Congress, and 138 of them are former members of Congress. Include state lobbyists, and there are more than 60,000 (because of variations in state laws on what is or isn’t a lobbyist, and who and how they should register, this may well be a significant underestimate: nobody really knows the true number).

As Jeffrey H. Birnbaum noted in the Washington Post in June 2005, “The number of registered lobbyists in Washington has more than doubled since 2000 to more than 34,750 while the amount that lobbyists charge their new clients has increased by as much as 100 percent. Only a few other businesses have enjoyed greater prosperity in an otherwise fitful economy.”

He added that “lobbying firms can’t hire people fast enough” and that salaries started at $300,000 a year. “Big bucks lobbying is luring nearly half of all lawmakers who return

Unequal Protection — Chapter Eleven: Corporate Control of Politics

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From THOM HARTMANN
Truthout

[Article with references here]

The government silences a corporate objector, and those corporations may have the most knowledge of this on the subject. Corporations have lots of knowledge about environment, transportation issues, and you are [proposing] silencing them during the election? -U.S. Supreme Court Justice Anthony Kennedy, speaking from the bench during September 9, 2009, oral arguments in the case Citizens United v. Federal Election Commission

During the bruising primary election season of 2008, a right-wing group put together a ninety-minute hit-job on Hillary Clinton and wanted to run it on TV stations in strategic states. The Federal Election Commission (FEC) ruled that advertisements for the “documentary” were actually “campaign ads” and thus fell under the restrictions on campaign spending of the McCain- Feingold Act and thus stopped them from airing. (Corporate contributions to campaigns have been banned repeatedly and in various ways since 1907 when Republican President Teddy Roosevelt pushed through the Tillman Act.)

Citizens United, the right-wing group, sued to the Supreme Court, with right-wing hit man and former Reagan solicitor general Ted Olson—the man who argued Bush’s side of Bush v. Gore—as their lead lawyer.

This new case, Citizens United v. Federal Election Commission, presented the best opportunity for the Roberts Court to use its five-vote majority to totally rewrite the face of politics in America, rolling us back to the pre-1907 Era of the Robber Barons. And if there was a man to do it, it was John Roberts.

Although he was handsome, with a nice smile and photogenic young children, Roberts was no friend to average working Americans. If anything, he was the most radical judicial activist appointed to the Court in more than a century. He had worked most of his life in the interest of the rich and powerful and was chomping at the bit for a chance to turn more of America over to his friends.

As Jeffrey Toobin wrote in the New Yorker

Unequal Protection — Chapter 10: Protecting Corporate Liars

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From THOM HARTMANN
Truthout

With yearly revenues of over $9 billion, NIKE has the resources to spread their corporate message far and wide. Do they also have the Constitutionally protected right to distort or misrepresent the truth for commercial gain?

Corporations are not people, and the First Amendment should account for their unique motivation: sales.  ~Congressman Dennis Kucinich, writing about the Supreme Court case Kasky v. Nike.

The first direct shot across the bow of the doctrine of a corporation’s “right to lie” by using its “personhood” to claim First Amendment “free speech” rights came in April 1998, when Mark Kasky, a California political activist, noticed that Nike was engaged in what he considered to be a deceptive greenwashing campaign. Kasky had long been a runner and wore Nike shoes, so he was particularly distressed when he saw Nike’s communications director, Lee Weinstein, publish a letter in the San Francisco Examiner in December 1997 that said, in part, “Consider that Nike established the sporting goods industry’s first code of conduct to ensure our workers know and can exercise their rights.”2

This letter was just a small part, it turned out, of a national campaign

Unequal Protection — Chapter Nine: The Court Takes the Presidency

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(Transcripts Below)

From THOM HARTMANN
Truthout

“The election is over. We won.”

Reporter’s voice: “How do you know that?”

“It’s all over but the counting. And we’ll take care of the counting.”

-Republican Congressman Peter King on July 4, 2003, speaking of the 2004 presidential election, interviewed by filmmaker Alexandra Pelosi for the HBO documentary Diary of a Political Tourist[1]

On December 12, 2000, the U.S. Supreme Court granted yet another gift to corporate power—and hammered yet another nail into the coffin of democracy in America. They did it in a strikingly dramatic fashion: by stealing the presidency.

In the process five members of the unelected third branch of government made sure that its majority

Unequal Protection — Chapter 8: Corporations Go Global

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From THOM HARTMANN
Truthout

Curtin, what do you think of those fellows in Wall Street who are gambling in gold at such a time as this?… For my part, I wish every one of them had his devilish head shot off.

—President Abraham Lincoln, personal letter to Pennsylvania Governor Andrew Curtin, April 25, 1864

People, at the time, generally weren’t all that concerned about the fate of the world’s dolphins. It was the last week of June 1944, and the war wasn’t going well for Adolf Hitler. The killing machines of his death camps were running full out, straining his resources and creating consternation as word leaked out across Europe. His forces were falling back before the Soviets, and his generals openly worried about

an Allied invasion on the French coast. On Thursday, June 29, almost all of the eighteen hundred Jews of Corfu were murdered upon their arrival at Auschwitz, while twenty thousand Jewish women were relocated to the concentration camp at Stutthof. On Friday, June 30, more than a thousand Parisian Jews arrived at Auschwitz.

This same weekend that opened July 1944, a three-week meeting was convened in an isolated hotel in New Hampshire’s White Mountains near the town of Bretton Woods. Bankers, economists, and representatives of the governments of forty-four nations arrived for the meeting, which was convened as the International Monetary and Financial Conference of the United and Associated Nations.

The official history of the meeting suggests it was a group of nations getting together to work out a new international economic world order that would prevent a repeat of the Great Depressions and the European inflations that had occurred in the 1930s and driven Hitler to prominence and power with his promises to “restore Germany to greatness.”

Unequal Protection — Chapter 7: The People’s Masters

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From THOM HARTMANN
Truthout

Private capital tends to become concentrated in few hands, partly because of competition among the capitalists, and partly because technological development and the increasing division of labor encourage the formation of larger units of production at the expense of the smaller ones. The result of these developments is an oligarchy of private capital the enormous power of which cannot be effectively checked even by a democratically organized political society.

This is true since the members of legislative bodies are selected by political parties, largely financed or otherwise influenced by private capitalists who, for all practical purposes, separate the electorate from the legislature. The consequence is that the representatives of the people do not in fact sufficiently protect the interests of the underprivileged sections of the population. Moreover, under existing conditions, private capitalists inevitably control, directly or indirectly, the main sources of information (press, radio, education). It is thus extremely difficult, and indeed in most cases

Unequal Protection — Chapter 6: The Early Role of Corporations in America

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From THOM HARTMANN
Truthout

An effort is being made to build a railroad from Springfield to Alton. A [corporate] charter has been granted by the legislature, and books are now open for subscriptions to the stock. The chief reliance for taking the stock must be on the eastern capitalists; yet, as an inducement to them, we, here must do something. We must stake something of our own in the enterprise, to convince them that we believe it will succeed, and to place ourselves between them and subsequent unfavorable legislation, which, it is supposed, they very much dread. ~ Illinois Congressman Abraham Lincoln, addressing the leaders of Sangamon County, Illinois, June 30, 1847

Jane Anne Morris is a corporate anthropologist and writer in Madison, Wisconsin, and she is affiliated with the Program on Corporations, Law, and Democracy (POCLAD), one of the leading organizations doing research and work in illuminating the story of corporate personhood.

Morris discovered that on the eve of his becoming chief justice of Wisconsin’s Supreme Court, Edward G. Ryan said ominously in his 1873 address to the graduating class of the University of Wisconsin Law School,

[There] is looming up a new and dark power…the enterprises of the country are aggregating vast corporate combinations of unexampled capital, boldly marching, not for economical conquests only, but for political power….The question will arise and arise in your day, though perhaps not fully in mine, which shall rule—wealth or man [sic]; which shall lead—money or intellect; who shall fill public stations—educated and patriotic freemen, or the feudal serfs

Unequal Protection — Chapter 5: Jefferson Versus the Corporate Aristocracy

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From THOM HARTMANN
Truthout

Let monopolies and all kinds and degrees of oppression be carefully guarded against. ~ Samuel Webster, 1777

Although the first shots were fired in 1775 and the Declaration was signed in 1776, the war against a transnational corporation and the nation that used it to extract wealth from its colonies had just begun. These colonists, facing the biggest empire and military force in the world, fought for five more years—the war didn’t end until General Charles Cornwallis surrendered in October 1781. Even then some resistance remained; the last loyalists and the British left New York starting in April 1782, and the treaty that formally ended the war was signed in Paris in September 1783.

The first form of government, the Articles of Confederation, was written in 1777 and endorsed by the states in 1781. It was subsequently replaced by our current Constitution, as has been documented in many books. In this chapter we take a look at the visions that motivated what Alexis de Tocqueville would later call America’s experiment with democracy in a republic. One of its most conspicuous features was the lack of vast wealth or any sort of corporation that resembled the East India Company—until the early 1800s.

The First Glimpses of a Powerful American Company

Very few people are aware that Thomas Jefferson considered freedom from monopolies to be one of the fundamental human rights. But it was very much a part of his thinking during the time when the Bill of Rights was born.

In fact,

Unequal Protection — Chapter 4: The Boston Tea Party Revealed

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Frontispiece and title page of “A Retrospect of the Boston Tea-Party with a Memoir of George R. T. Hewes, a Survivor of the Little Band of Patriots Who Drowned the Tea in Boston Harbour in 1773.” (New York: S. S. Bliss, 1834)

From THOM HARTMANN
Truthout

[This is the full chapter of the article we ran the other day: The Real Boston Tea Party was Against the Wal-Mart of the 1770s -DS]

They [those who wrote and signed the Declaration of Independence] meant to set up a standard maxim for free society, which would be familiar to all, and revered by all; constantly looked to, constantly labored for,

Unequal Protection — Chapter 3: Banding Together for the Common Good

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From THOM HARTMANN
Truthout

A corporation has no rights except those given it by law. It can exercise no power except that conferred upon it by the people through legislation, and the people should be as free to withhold as to give, public interest and not private advantage being the end in view. ~ William Jennings Bryan, address to the Ohio 1912 Constitutional Convention

In the beginning, there were people.

For thousands of years, it was popular among philosophers, theologians, and social commentators to suggest that the first humans lived as disorganized, disheveled, terrified, cold, hungry, and brutal lone-wolf beasts. But both the anthropological and archeological records prove it a lie.

Even our cousins the apes live in organized societies, and evidence of cooperative and social living is as ancient as the oldest hominid remains. For four hundred thousand years or more, even before the origin of Homo sapiens, around the world we primates have made tools, art, and jewelry and organized ourselves into various social forms, ranging from families to clans to tribes. More recently, we’ve also organized ourselves as nations and empires.1

As psychologist Abraham Maslow and others have pointed out, the value system of humans is first based on survival. Humans must breathe air, eat food, drink water, keep warm, and sleep safely. Once the basic survival and safety needs are accounted for, we turn to our social needs—family, companionship, love, and intellectual stimulation. And when those are covered, we work to fulfill our spiritual or personal needs for growth.

Our institutions reflect this hierarchy of needs. Families, whether tribal nomads or suburban yuppies, first attend to food, water, clothing, and shelter. Then they consider transportation, social interaction, and livelihood. And when those basics are covered,

Unequal Protection — Chapter 2: The Corporate Conquest of America

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From THOM HARTMANN
Truthout

The legal rights of the…defendant, Loan Company, although it be a corporation, soulless and speechless, rise as high in the scales of law and justice as those of the most obscure and poverty-stricken subject of the state. ~ Excerpt from the judge’s ruling in Brannan v. Schartzer, 25 Ohio Dec. 491 (1915)

While corporations can live forever, exist in several different places at the same time, change their identities at will, and even chop off parts of themselves or sprout new parts, the chief justice of the U.S. Supreme Court, according to its reporter, had said that they are “persons” under the Constitution, with constitutional rights and protections as accorded to human beings. Once given this key, corporations began to assert the powers that came with their newfound rights.

• First Amendment. Claiming the First Amendment right of all “persons” to free speech, corporate lawsuits against the government successfully struck down laws that prevented corporations from lobbying or giving money to politicians and political candidates.1
• Fourth Amendment. Earlier laws had said that a corporation had to open all its records and facilities to our governments as a condition

Unequal Protection, Chapter I: The Deciding Moment?

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From THOM HARTMANN
Truthout

No laws were passed by Congress granting corporations the same treatment under the Constitution as living, breathing human beings, and none has been passed since then. It was not a concept drawn from older English law. No court decisions, state or federal, held that corporations were or should be considered the same as natural persons instead of artificial persons. The Supreme Court did not rule, in this or any other case, on the issue of corporate personhood.

Chapter 1: The Deciding Moment?

The first thing to understand is the difference between the natural person and the fictitious person called a corporation. They differ in the purpose for which they are created, in the strength which they possess, and in the restraints under which they act.

Man is the handiwork of God and was placed upon earth to carry out a Divine purpose; the corporation is the handiwork of man and created to carry out a money-making policy.

There is comparatively little difference in the strength of men; a corporation may be one hundred, one thousand, or even one million times stronger than the average man. Man acts under the restraints of conscience, and is influenced also by a belief in a future life.

Thom Hartmann: Unequal Protection — The Battle to Save Democracy (Introduction)

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From THOM HARTMANN
Truthout

It’s really a wonder that I haven’t dropped all my ideals, because they seem so absurd and impossible to carry out. Yet I keep them, because in spite of everything I still believe people are really good at heart.
— Anne Frank, from her diary, July 15, 1944

On September 2, 2009, the transnational pharmaceutical giant Pfizer pled guilty to multiple criminal felonies. It had been marketing drugs in a way that may well have led to the deaths of people and that definitely led physicians to prescribe and patients to use pharmaceuticals in ways they were not intended.

Because Pfizer is a corporation—a legal abstraction, really—it couldn’t go to jail like fraudster Bernie Madoff or killer John Dillinger; instead it paid a $1.2 billion “criminal” fine to the U.S. government—the biggest in history—as well as an additional $1 billion in civil penalties. The total settlement was more than $2.3 billion—another record. None of its executives, decision-makers, stockholders/owners, or employees saw even five minutes of the inside of a police station or jail cell.