Corporate Citizen?: An Argument for the Separation of Corporation and State Kindle Edition
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Top Customer Reviews
Before reading the book, I vaguely knew one of the first key decisions stemmed from the Fourteenth Amendment to the U.S. Constitution, which says, “[n]o state shall… deprive any person of life, liberty or property without due process of law, not deny to any person… the equal protection of the laws.”
Known as the Equal Protection Clause, the amendment was meant to secure the rights emancipated slaves. However, Torres-Spelliscy informs us that Roscoe Conkling argued, based on his role as a congressman in framing the Fourteenth Amendment, that Congress had vacillated between the words “citizen” and “person,” choosing person specifically to include corporations.
This important distinction didn’t appear in the actual opinion rendered in Santa Clara County v. Southern Pacific Rail Road, as I had always assumed, but instead in a head-note about an argument the Court did not wish to hear.
Conkling’s legal practice went so well, we are told, that he turned down two offers of a seat on the Supreme Court. Santa Clara begat Bellotti in 1978, allowing corporations to spend unlimited corporate funds on ballot initiatives, which begat Citizens United in 2010 granting even more expansive rights to corporations.
On the flip-side, Torres-Spelliscy traces how the Comity Clause has evolved to affirm that corporations are not citizens. That distinction may be the lever for a future Court revisiting and overturning Citizens United and Bellotti.
Torres-Spelliscy does an excellent job of tracing the impact of money on politics. Following huge political scandals there is often a push to drive money out through legal statutes, but between those events is a steady drip of corporate challenges through case law winning more and more rights for corporations until we now face a situation where the political has, for all practical purposes, become subordinate to the economic.
We have now reached the point where 158 families, along with the corporations they own or control, contributed $176 million to the first phase of the 2016 Campaign. Yes, reading the book will help you realize it is worse than you thought. I got my own deep appreciation of corporate power when I found myself writing hundreds of environmental laws in California with the able ‘assistance’ of corporate lobbyists. That’s when I started to get active in corporate governance thinking that since I had so little influence over them as a government regulator, a similar level of effort working as a shareholder might be more effective.
Hobby Lobby turned religious rights on it head and appears as the current pinnacle of placing corporate rights above those of people but Torres-Spelliscy also delves into the evolution of reduced responsibilities, such as paying taxes.
“Taxes are what we pay for a civilized society,” as Justice Holmes wrote. Its no wonder some of us feel our country is slipping into barbarism. The book goes on to discuss how up to $240 billion a year is lost to tax coffers, as money is moved internationally.
Thankfully, Torres-Spelliscy not only takes us down the path of incremental legal interpretations that have led to our current nightmare, she also discusses new forms of resistance. Boycotts, phone applications, consumer groups, benefit corporations, and more – all offer some promise.
Torres-Spelliscy makes a large number of recommendations. Here are just a few:
• Regulations: The IRS, the Federal Elections Commission, the Federal Communications Commission the SEC and others could address aspects of dark-money problem, including barring foreign corporations (which needs defined) from spending in U.S. elections.
• Shareholders: Demand corporate transparency about political spending.
• Consumers: Use phone apps to check on their political activities before patronizing corporations.
• Action by voters: Publicly funded election laws and/or severe restrictions on contributions could broaden who officials are accountable to.
What I found most helpful from Torres-Spelliscy was her insight concerning the need for the Supreme Court to look again at its own jurisprudence on the Comity Clause to “bring back a sense of proportion to corporate rights.”
After reading the book, I’m convinced one liberal appointment to the Supreme Court could make all the difference with respect to Citizens United and Hobby Lobby. That won’t make real citizens the center American democracy but it would certainly be a start.
As far as I’m concerned, Torres-Spelliscy is spot on with the following sentence:
“A key aspect of why empowering corporations in politics is so problematic is that corporations are not as internally democratic as the democratic political systems they inhabit.”
Yes, changes in laws are necessary to incentivize corporations to create less severe negative externalities. However, I would argue internal corporate governance should not be a democratic-free zone.
If there is one weakness in the book, and no book can cover everything, it is too little emphasis on building more democratic governance from the inside of corporations with their own bylaws that cover issues such as majority vote requirements, annual elections for all directors, genuine proxy access, etc. Corporate bylaws should not only make shareholders feel like owners, they should facilitate their ability to act as owners… bringing all their values to that task.
Democracy shouldn’t just be for government. Other institutions form and shape our citizens. Business has become by far the most powerful institution but the family, religious, school, neighborhood, environmental groups and even bowling leagues offer mediating structures between the individual and society. The more we make such structures democratic, the more we empower rule by actual common people. Unfortunately, court decisions like Citizens United do the opposite. Explaining how we got here is a necessary first step to addressing the forces that Torres-Spelliscy enumerates so well.