Look to Congress for Supreme Court Fix (2010)

by Jane Anne Morris

AllowedInLandOval copyHow is it unconstitutional for a state to require place-of-origin labels on meat? Regulate sale of its water? Establish worker protections stricter than federal standards? Where does the US Constitution say that states cannot require that toxic waste be sorted and labeled? Cannot include labor standards in state purchasing policy? Cannot make companies disclose what chemicals they use in products and facilities?1
The Constitution is silent on these matters, but the Supreme Court has interpreted the Constitution all the way to next Tuesday in order to declare these measures unconstitutional. Supreme Court interpretation devised concepts like free speech rights for corporations, and that workhorse, money equals speech, to hobble election reform. Judicial interpretation enables corporations to use the Civil Rights Act to claim damages for being “discriminated” against. Supreme Court interpretation dished out rights, powers, and protections for corporations while repeatedly denying same to minorities, women, and workers.
Constitutional scholars routinely describe the Court as the most powerful court in the history of the world.2 In addition to its untrammeled interpretive latitude, that singular institution wields a bundle of powers. It decides cases, rules on the constitutionality of acts of the executive branch, determines the distribution of powers between state and federal government, and judges the constitutionality of any law passed at any level of government. It can “call up” any court’s ruling if it disagrees. Justices scan the nation’s laws, and using easily rigged “test” cases, void any law not to their liking.
This power does not come from the Constitution, which, apart from a few matters (like ambassadors and Indian tribes), specifies very little about the Supreme Court.3 The vast powers and maxed-out discretion exercised by the Court come from the US Congress. A series of Judiciary Acts (1790, 1875, 1925, and 1988) sketch (and stretch) the dimensions of its power.
So if you are concerned that corporations have most of the constitutional rights of human persons, or that numerous “green” state and local laws are thrown out as unconstitutional, then the true object of your discontent is neither the Constitution, nor the Supreme Court, but Congress.
Congress could borrow from other countries’ systems that not only tolerate less poetic license in judicial interpretation, but spread around what the current Supreme Court concentrates into one big-box power center. Special constitutional courts rule on the constitutionality of laws. A separate court decides cases between parties. Yet another court handles human rights violations, and by “human,” they mean, uh, human, and not corporate persons. Sometimes, legislative bodies can overrule court decisions.
Within the US, state legislatures and members of Congress have offered correctives to the existing “Godzilla” Supreme Court. Such as, requiring a supermajority or unanimity of Supreme Court Justices to declare a law unconstitutional; allowing Congress (or another legislative body) to overrule a decision on constitutionality; and removing the Congress-granted power of the Court to second-guess state courts on constitutional questions. A national referendum has also been suggested.
Congress need not retain two centuries of Congressional Acts uploading legislative powers into the judicial bailiwick. Perhaps Congress likes it this way, confident that any serious and effective reforms will be declared unconstitutional by the “branch” next door.
The ball is in our court, the people’s court: the US Congress.

Corporate anthropologist Jane Anne Morris’s Gaveling Down the Rabble is cited in an amicus brief filed in Citizens United v. FEC (the “Hillary film” corporate speech case). Morris is currently writing a book about the Supreme Court.

This article first appeared in Justice Rising (Alliance for Democracy), ed. Jim Tarbell. Spring 2010, Vol. 4, #4.

Help, I’ve Been Colonized and I Can’t Get Up (1998) (Take a lawyer and an expert to a hearing and call me in a decade…)

by Jane Anne Morris

CentrifForColonizedA third of your friends are locked down in an old growth grove or at a corporate headquarters, with law enforcement officers rubbing pepper spray in their eyes. Another third are preparing testimony so you can be persuasive at a generic regulatory agency while you’re begging them to enforce a tiny portion of our laws. The third third are trying to raise money to pay lawyers to get your friends out of jail (after they’ve been released from the hospital) or take the regulatory agency to court (after it declines to enforce the law).

Continue reading “Help, I’ve Been Colonized and I Can’t Get Up (1998) (Take a lawyer and an expert to a hearing and call me in a decade…)”

Corporate “Social Responsibility”: Kick the Habit (2000)

by Jane Anne Morris

What to expect next from corporate sponsors of the WTO? There’s a well-thumbed page in the corporate playbook, ready to go. Whether or not it works depends on us.

The last time there was a scuffle as worrisome as the Seattle demonstrations,” Richard Milhous “Tricky Dick” Nixon was in the White House. Nearly everybody else was in the streets.

We were millions, and we demanded freedom, justice, equality, peace, clean air and water, and the right to choose our own hairstyles. We knew the joy of thinking it was all possible.

We also knew the raw fear wrought by the pop of tear gas canisters, the glint of sun on gunmetal, and the meltdown of a peaceable crowd being attacked by the forces of law and order.

But it is only at a distance of a quarter century that I begin to recognize the depths of another fear, just as visceral. As I pore over the writings by and about the corporate elite of that day, a simple fact stares out at me: they were scared witless.

While we wove our hopes into songs, and scrawled our demands onto placards, they spelled out their fears in journal articles and speeches at chambers of commerce.

The corporation was “under attack as never before,”1 subject to a “tidal wave” of “dissident groups, structured into onslaught vehicles of unrelenting social action,”2 according to corporate literature. The future looked “grim.”3 Corporations were about to “lose their autonomy, power and influence.”4 Some managers doubted that large corporations would even be “permitted”5 in the future. The significance of profit margins shrank as the CEO of one of the U.S.’s largest corporations wondered whether “the corporation as we know it…will survive into the next century.”6

For those whose greed commanded the rudder of the ship of state, the sight of people in the streets — and not for shopping, mind you — was terrifying.

What a difference a generation makes. Corporate managers have more than survived the tumult of the Nixon era. Today, a tiny fraction of the human population, in its role as corporate managers, has been exceedingly successful in using the legal fiction of the corporation to expand its autonomy, power and influence. How did they accomplish this?

While we huddled in coffeehouses and church basements debating strategy, corporate managers plotted in board rooms. Their diagnosis unfolded into a plan. From their perspective, a Great Danger threatened: Government action spurred by public demands. A tried-and-true strategy beckoned: Make a show of voluntarily Doing Something and publicize it shamelessly.

Presented to the public, this was a plan with a thousand faces: corporate social responsibility, the corporation as a good citizen, voluntary codes of conduct, corporate executives as “trustees” for the public interest, corporations as “good neighbors,” the civic duty of the corporation, and so on.

There were three pillars to the corporate plan. First placate, then co-opt, then re-frame issues so that in the future, people would “demand” something that corporate managers want to “give.”

Corporate donations and other forms of mostly lip-service “corporate social responsibility” pacified portions of the community by softening the edges of some of the most egregious or the most visible corporate harms. In a quasi-behaviorist twist, they rewarded “good” behavior and disadvantaged “bad” behavior on the part of showcased community and charitable organizations. But most of all they enabled corporate managers to reshape public “questions” so that the “answers” were to come not from a self-governing people but from “corporate good citizens.”

Corporate executives were advised that they “should…be able to gauge with some accuracy the degree of social responsiveness that will satisfy the community….”7 “If corporations fail to exert considerably more social initiative, they will be compelled to do so…”8 “The less voluntary social action U.S.companies take, the more it will be imposed by big government.”9 There were fears that public pressure would “compel legislative response.”10 (Heaven forbid that this should ever occur in a democracy.)

Targets of “corporate social responsibility” were selected for maximum effect. Corporate managers who lent financial support were well aware that they were “ingratiating themselves with recipients, or pacifying a pressuring public. A corporate gift can be a bribe, paid in return for a gadfly group’s promise to keep still and refrain from criticism of corporate policies.”11 On the other hand, “…some business givers have…withheld grants from groups identified with causes they consider to be too militant, or unfriendly to corporate interests.”12

For some, the success of another round of “corporate social responsibility” was a foregone conclusion. “The social responsibility payoff has been attested to time and again. The most patent cost justification is a simple matter of good stickmanship — sidestepping the penalties of social irresponsibility.”13 The judicious distribution of corporate money “has allowed the managers to become brokers of social power, deciding which programs are supported and which are not.”14

The language is vivid. “Bribe.” “Ingratiate.” “Satisfy the community.” “Payoff.” “Brokers of Social Power.” How much plainer can it get? In all cases, control was the goal; control not just of groups or movements, but of ideas and debates.

Coupled with brutal suppression, this three-step strategy — placate, co-opt, re-frame debate — was used early and often. It worked after the sixties-seventies wave of public uproar; before that it worked in the 1950s ; it worked during the Depression; it worked during the wave of “unrest” immediately after World War I. In the late 19th century, an early version of it worked after corporate strategists got a glimpse of the Knights of Labor and the Populists.

The notions of corporate trusteeship, the civic duty of a corporation, corporate citizenship, corporate social responsibility and the corporate social audit — all originated in the desire of corporate managers to thwart unionization, forestall revolt, avoid government action, and above all retain control by shaping public debate.

Each time corporate managers hiding behind the increasingly powerful shield of the legal fiction of The Corporation took another step toward becoming a more powerful “semi-autonomous managerial elite,” they cranked up the public relations machinery to boast of The Corporation’s deep concern and caring for the community. Increasingly, they doled out goodies — always on their terms, and in their terms.

So successfully have these terms become part of our political language that they often go unnoticed. Why is it, for instance, that when a government (using money collected for the public good) aids needy citizens, they’re on the dole, a supposed disgrace, but when corporate managers give away other people’s money to a soup kitchen, it’s philanthropy ? (La-dee-dah.)

If you doubt that corporate managers and not regular folks define the terms of public debate today, you might ask yourself these questions. Who defines free trade? What about welfare reform? Or those dubious twins, tree harvest and deer harvest ? Remember jobs-versus-environment , a golden oldie that never seems to fade away? These terms, and the terms of the debate, were all brought to us by corporate managers.

Corporate managers are willing and eager to participate in the democratic process, but only on the control end. When it comes to being subject to it, they balk, and are in fact willing to do anything, anything — even give away a little precious corporate money — in order to avoid losing control over the way issues are framed and thus becoming subject to the democratic process.

Corporate managers of the seventies warned their comrades that failure to act would have horrific consequences.

“The alternatives are not attractive. The likeliest possibility is the wholesale substitution of public for private goals, strategies, and actions…”15

The options were clear: Either institute the three-point plan, or the country will succumb to… (I hope you’re sitting down)… a people’s democracy.

As night follows day, corporate managers experienced great surges of “corporate social responsibility” following each historic episode of social unrest. Such bouts of “corporate good citizenship” are voluntary, calculated, expedient, cheap and temporary. Far from reflecting democratic control, they frustrate it. Meaningless, unenforceable “side agreements” are not concessions to democracy on the part of corporate managers, but concessions to lack of democracy on the part of a not-sovereign people.

So it must be an especially sweet moment for corporate managers looking up from their Courvoisier-glazed snifters — to hear people clamoring for “corporate social responsibility,” that strategy-with-a-thousand-faces that has served to solidify the grip of the corporate elite through a century of citizen protests.

With the echoes of “WTO Week in Seattle” still rumbling in our ears, we have another opportunity to firmly reject the “corporate social responsibility” ruse. A small but growing core of people is demanding not goodies or favors or good deeds but real self-governance. They know that receiving goodies from worried corporate managers is the real “dole,” while a self-governing people controlling their community’s resources in the interest of society as a whole — is democracy. La-dee-dah.


Originally published in By What Authority, Vol. 2, No. 2 (Spring 2000); reprinted in Defying Corporations, Defining Democracy


The Case for Un-Building America: Watch Where You Put Your Stimulus Package (2009)

by Jane Anne Morris

The Run-Up to Collapse

b19objects158 copyToday as many hundreds of billions of dollars are flying out of federal coffers to bail out and bulk up The Economy, it is instructive to review a few of the places we have not put enough money in the last decades. Universal single-payer health care; living wages for all; effective and affordable public transit systems; facilities and programs for all disabled persons; worker safety measures in all industries; community gardens; bike paths; and renewable energy-powered off-grid public buildings, to name but a few.

In addition to those community-oriented needs that we just could not fund, we also lacked resources, it seems, to protect and restore our environment. Cleanups of Superfund sites, and many other terribly fouled areas, are incomplete, stalled, or not even begun. We lacked funds for state-of-the-art pollution controls on all power plants, factories, and refineries; for cleaning up our lakes, rivers, and aquifers; and for healing the habitat destruction, degradation, and erosion wrought by corporate agriculture, mining, clearcutting, and the like.

Yet now, after repeatedly finding that it was always too expensive—for government, for corporations, for taxpayers—to take care of Community and Environment, suddenly the care and feeding of The Economy trumps all. What is this creature Economy that is more important by far than Community and Environment, and so must be “saved” at all costs?

The State of the Economy

A vast calamity has befallen our Economy: People are buying only what they need. They are wearing out old stuff before throwing it away and buying new stuff. They are driving only when necessary. They are spending more time with nearby family and friends. They are borrowing as little money as possible, and only when it is important. They are reusing things. I hear on the radio that such “cutting back” is devastating The Economy.

In what kind of world are such moderately prudent practices calamitous?

Advice comes at us from all sides: Don’t slow your spending, borrowing, or consuming, or things will get even worse. Instead, borrow money, take a trip to the democracy theme park, and buy some plastic flags shipped in from Asian factories. Shop early and often. Our Economy’s slogan might as well be: Don’t fix that flat–buy a new car!

Evidently, matching consumption to needs will wreck The Economy. This state of affairs is at once absurd, and true: it would wreck our Economy.

What Humans Made Can Be Re-Made

If an economy were a shoe, the little tag inside would say, “All man-made materials.” Our current Economy did not spring fully formed from the primeval slime: human beings concocted every last detail of it. In the US, we set up and maintain an economy that rewards sleazy con artists playing with sleight-of-hand “investments,” while dealing organic farmers near-starvation wages and nonexistent health care. Since we made our Economy, we could make it differently.

If Earth were a shoe, the tag would say something like “Follows Laws of Nature, see Deep Ecology.” While human beings can make drastic changes to Nature (such as mountaintop removal, or species eradication), we cannot change the fundamental principles that govern it. After we turn off the pumps and the fans, water will still run downhill. All the six-legged (and immune) survivors of a pesticide-spraying session will reproduce enthusiastically and in abundance. The laws of Nature, not economic beliefs or theories, determine what happens when we pump prodigious amounts of CO2 into the atmosphere.

“Economy” is how one very powerful species refers to the way it makes a living on its home planet. That “home planet” is singular. Since there is no separate Weekend Getaway Planet or Toxic Waste Dump Planet, the idea of Economy ought to be inextricably bound with the idea of Ecology (as they are in origin from the Greek oikos, house).

I do not know which notion is more dangerous: that we cannot change the economic principles we live by, or that we can change the laws of Nature. Those twinned assumptions form the backdrop for the whacked-out social arrangements that brought us to the present circumstance. People handing out money under the “Yes We Can” banner would do well to keep in mind that only by assuming the reverse—that we can (and must) change The Economy, but we cannot change the laws of Nature–might we be able to turn this aircraft carrier of an economy around.

The first step is to recognize it for the Ponzi scheme that it is.

Ponzi Stories

Since our present Economy subsidizes consumption well beyond need, and encourages (if not demands) waste, any stimulus package dumped into this situation will encourage the exact practices that brought us to where we are now.

Our Economy is a Ponzi scheme, paying off a few current participants by racking up huge IOUs to be paid in the future. This principle underlies not only the recent Madoff scheme, but also mortgage-backed securities, interest on lent money, stock appreciation, and much other speculative economic “growth.” (This in contrast to real value added through labor, as when a craftsperson turns raw materials into an accordion).

Many IOUs are written in the currency of nonrenewable resources, and thus transcend the strictly economic. In a sense, our Ponzi scheme Economy is entangled with a Ponzi scheme Ecology. As with Economy, we are pushing off nonredeemable IOUs onto the future. We are using up resources, from oil to trees to topsoil. In the extraction, processing, and use of them, we pollute, leaving future generations a much-degraded “base.”

Victims of a classic (purely economic) Ponzi scheme need a “story” to explain how they can seemingly get something for nothing, so they are handed some financial mumbo-jumbo that purports to “explain” the promised profits. The catalyst that lubricates our parallel ecological Ponzi scheme society is cheap oil, or more accurately, the cheap fossil fuels that have so transformed our world over the last two centuries. The “story” that makes it plausible to some is an assurance of future “discoveries”: as we rip through resources, we will “discover” more of the same, or new sources, or some magic technological solution that will fix the consequences that we cause today.

Our societal Ponzi scheme is political as much as economic and ecological: “leaders” must offer convincing promises, rationalizations, and myths to keep people believing, especially during times of crisis. Recall the joke about a head of state and his successor, just as the former is stepping down. The outgoing leader hands over two envelopes, each to be opened only when things go seriously wrong. At his first crisis, the new leader opens envelope #1 and reads: “Blame the previous administration.” He does so, and things clear up for a while. But problems come again, and he opens the second envelope: “Prepare two envelopes.”1 Our political Ponzi scheme harmonizes with the economic and ecological versions, and gives us the moral fiber to continue to do the wrong thing. But, like any Ponzi scheme, it must end.

Transition to Sustainability

Since the US economy is obviously in transition, let’s consciously make it a transition to a sustainable economy.

The goal of any “stimulus” should be taking care of people’s needs, their communities, and the environment in a sustainable manner. The goal should not be using energy, using resources, producing things, selling things, bailing out speculators, or creating jobs. Frankly, if we take care of Community and Environment (something we have not done for some time), Economy and “jobs” will take care of themselves. No stimulus or bailout money should fund anything that is not sustainable.

Because the “sustainability” mantra has become part of innumerable “green marketing” schemes, it is essential to define it, and set up a practical measure for use in evaluating possible courses of action. We can think of this as a way to establish a “fair share” standard: a per-person sustainable level of energy and resource use.

Since we live on a finite planet, the main concern here is not efficiency, but AMOUNT. If we are cutting too many trees, it matters little that we are using efficient factories to turn them into toilet paper. At the base of any real notion of sustainability is the carrying capacity2 of our planet.

Far from being a new idea, much of this work has already been done,3 in fact, been done over and over again. Drawing on that work, and initiating a focused public debate on the matter, should be among the first things that “stimulus” money is used for.

The carrying capacity/sustainability literature suggests that at a modest living standard (well below the US average), Earth’s carrying capacity is about two billion persons. Current world population is about seven billion. Extrapolate. As a tentative target for the US, we should reduce our use of nearly everything by 90-95%. This is not about “other people.”>

In ecology, everything counts. The pound of coal burned for each Internet click. The humongous bank buildings downtown. The strip mall. Your Labrador retriever’s dinner, and chew toy. The take-out foam carton. Every electronic gadget you own. Any hopes of achieving a sustainable society rest on undertaking a vast program of un-building America.

There is much work to be done: taking out highway lanes and putting in public transit, taking out parking lots and putting in community gardens. McMansions that can be salvaged can become libraries, recreation centers, or apartments; those that cannot will provide building blocks for community garden tool sheds or greenhouses. Gymnasium equipment can be hooked up to generators to make fitness clubs net energy providers instead of energy sinks. There are people all over the world building houses that use almost no energy—isn’t that a much better task for our valuable workers than building SUV’s?

Here Comes the Dollar

Unfortunately, sustainability has no place in our current Economy, which has recently been placed in the hands of a “new” team whose mottos seem to be “Representation without Taxation” and “Full Speed Ahead.”

Though we figure carrying capacity in ecological terms (resources and energy), we pay for food and shelter with dollars, denominated in units pegged to The Economy. Far from reflecting the sustainability of this or that purchase or habit, the dollar scale does the opposite. Highly processed, energy-intensive food from afar is cheaper than locally produced stuff. Chintzy, short-term housing is cheaper to build and buy than lasting structures with low energy requirements. Repair of such things as shoes, CD players, and watches is expensive or near impossible, while buying new ones is cheap. The more you use of something, the less you pay for it.

Like ships passing in the night, Community and Environment’s sustainability criterion sends one signal, while Economy’s dollars broadcast the opposite. Now is the time to choose Community and Environment, and sustainability—not as an advertising slogan but as a way of life.

After the Second Envelope

Perching on the sloping shoulder of empire in decline has proved to be an excellent vantage point for eloquent musings on previous societies in the same position. If you change the names of the factions, Edward Gibbon’s descriptions of the decline of the Roman Empire could be about the USA today.4 Barbara Tuchman wasn’t holding up her distant mirror out of idle curiosity, either; her words could have described the recent coronation in our nation’s capital:

…in decadence chivalry threw its brightest light; never were its ceremonies more brilliant, its jousts and tournaments so brave, its apparel so splendid, its manners so gay and amorous, its entertainments so festive, its self-glorification more eloquent.5

Most empires fall for one or both of two reasons: they overreach and go bankrupt funding wars to control people and protect resources, or they go into ecological collapse after long denial of accumulating consequences. We are on track for both.

Our current (new) leaders opened up the first envelope even before taking office. In an attempt to avoid opening the second, they urge us to have “confidence” in an Economy based on waste, theft, pollution, denial, and hubris, while frantically printing and borrowing money to keep a Ponzi Economy going a little longer.

We have a peephole of opportunity that we can use to soften the slope of what John Michael Greer calls the long descent in his recent book of the same name. After the second envelope, it’s ecology all the way down.

(First published in Synthesis/Regeneration 49, spring 2009.)


Meat, ‘Free Trade’ and Democracy: As Goes South Korea, So Went Missouri (2008)

By Jane Anne Morris

In the Spring of 2008, tens of thousands of South Koreans held candlelight vigils every day for over a month to protest being forced to accept beef from the United States. The US government claims that barring our beef is an illegal “trade barrier.”

This isn’t the first time the US has resorted to international bullying to force people to take our meat. In 1996, the European Union (EU) banned imports of US artificial hormone-fed beef for public health reasons. A challenge from the US convinced the World Trade Organization (WTO) to brand the EU policy a “free trade” violation.

You’ve got to wonder what those South Koreans think might be wrong with US beef. (I’ll give it away—it is a justified fear that the US does not take sufficient precautions against “mad cow disease”—think “downers.”) But my concern here is not the meat but the mechanism.

You might also ruminate on why forcing a country (or community) to import things it clearly doesn’t want to import is called “free trade.” The shortest definition of “free trade” is “forced trade”: communities (or countries) are forced to import stuff they think is dangerous or otherwise objectionable, and export stuff (such as water and other resources) that they want to keep at home. Such matters far transcend the notion of mere “trade.” What’s at stake is no less than self-governance and democracy.

The scraps of self-governance that South Koreans are struggling to retain have already been stripped from, say, Missouri. Those protesters in Seoul (and others around the world under draconian “free trade” regimens) are going through something that has been happening in the US for well over a century.

Passing laws to protect citizens from the possible dangers of incoming meat has long been a concern of governments. And for decades, states in the US did just that. But starting in the 1870s, the Supreme Court, acting in the interests and at the behest of corporate meat purveyors, used the Constitution’s “commerce clause” to rationalize a domestic “free trade” zone in the US.

That meant that protective state laws like these had to go.

Missouri. Fearing the spread of “Spanish fever” in cattle, in 1872 the Missouri legislature passed a law severely restricting import of Texas cattle into the state. The Supreme Court declared the law a “trade barrier”—unconstitutional on commerce clause grounds.

Minnesota. In 1889 Minnesota passed a law that required that meat sold as human food come from animals inspected in Minnesota before slaughter. It was declared unconstitutional under the commerce clause.

Virginia. In 1890 Virginia passed a law requiring inspection of meat that came from animals slaughtered more than 100 miles from where the meat was sold. It was found unconstitutional on commerce clause grounds.

State laws—and not just ones about meat—adapted for local conditions, concerns, and preferences, were routinely rejected as “trade barriers.” Eventually Congress established federal regulatory authorities (often sloppier on standards and enforcement) that helped a few large corporations dominate the national market. As the power of federal regulatory agencies waxed, the influence of both states and small businesses waned.

Much state and local power has been stripped, but states still attempt to do better than the lax and selectively enforced federal standards. But if they step out of line, the US’s own trade tribunal (our “free trade” enforcer)—the Supreme Court—steps in. In 1967, for instance, an Oregon law requiring country-of-origin labels on meat was declared unconstitutional by the Supreme Court because it purportedly interfered with interstate commerce.

Current global corporatization efforts use the Supreme Court’s tried-and-true techniques ratcheted up one level of generality. The issues and reasoning are so similar, that you could take old Supreme Court cases, scratch out phrases like “Spanish fever” and substitute “mad cow disease,” and use them for WTO decisions.

But since we know the arguments well, and understand that the issue is democracy and no mere matter of trade or commerce, we might as well simultaneously challenge both the domestic and the international versions of Forced Trade.


This article was first published in The Progressive Populist in 2008.

“Free Trade’s” Footprint a Decade after Seattle (2010)

By Jane Anne Morris


A stout, anthropomorphic crane thingie on a ship seems to be loading or unloading giant stuff.On this Tenth Anniversary of the “Battle for Seattle,” we could celebrate, we should commemorate, but we must evaluate. Right, then. What seemed so important at the time? It is difficult to even see back to 1999 without becoming lost among other landmark events soon to bask in their own tenth anniversaries. The last decade’s memory palace hosts the Y2K kerfuffle, a muffed Bush election, the burst of the Dot-Com bubble, Nine-Eleven, war, another muffed Bush election, war, the Obama election, war, a worldwide economic meltdown, war, and a “jobless recovery” fueled by a “New Deal”-style rescue plan for banks, investors, hedge fund managers, and insurance and automobile corporation executives. Oh, and more war. Even for those who were embattled in Seattle, who trotted with the Teamsters or tacked with the Turtles, or watched it on television, or read the book, saw the movie, or got the T-shirt, that’s a lot of water over the dam. Yet, the Battle for Seattle was iconic.

What happened in Seattle?

At the World Trade Organization’s 1999 Ministerial meeting in Seattle, the incumbent A and B Team elites-from the US and the European Union-though not themselves seeing eye-to-eye, assumed that as usual they would be calling the shots on world trade. Ministers from the rest of the world (expected to play the supporting cast of lesser elites) begged to differ, and declined the privilege of carrying water yet again for the usual overlords.

Meanwhile, outside on the streets, and representing the 99.99% of humanity who do not make the world’s trade rules, thousands of protesters besieged trade envoys already embarrassed by their own disarray. The opening ceremony for the WTO Ministerial was canceled. The mayor of Seattle declared a state of emergency and imposed a curfew. The National Guard and Washington State Patrol were called in to “maintain order” (i.e., protect property and intimidate demonstrators). The meetings collapsed, trade ministers slunk away. Cleanup, recriminations, firings, finger-pointing, bragging, spinmeistering, and trials went on for years. For all the crowing, one might have thought that “free trade” had bit the dust.

“Thousands of people teaching the masters of the universe that they could no longer conduct business as usual.”1 That’s how a flagship of the left described the outcome of the days-long fracas around the WTO meetings. What grade would we give those “masters” after a decade has passed? Did they “get” it? Did we “get” it? Just what did we get?

The view from 2009

Seattle’s events helped elevate “free trade” to marquee status among activists, giving it a reputation transcending individual manifestations in disputes about tires, shrimp, Mexican trucks, wheat flour, automobile parts, hormones, garlic, batteries, or olive oil.

In 1999, around the Seattle Ministerial events, a broad swath of activists began to realize what trade envoys have long understood: the point of all “free trade” is to flat-out prevent communities of any size (villages, cities, provinces, states, countries) from protecting themselves.

Against unlabeled meat or other foodstuffs.

Against corporations coming in and selling off their natural resources or water.

Against imports of cheap, subsidized goods from abroad that will devastate local industry.

Under “free trade,” a government cannot ban imports manufactured under unfair labor practices (child or prison labor, union-busting, and so on), or medical tubing made from “mystery” ingredients. It cannot prohibit the taking and export of plants, animals, or even the very water and soil.

“Free trade” turns a government into a powerless citizen advisory board in a democracy theme park. Unelected trade envoys and tribunals then freely void any laws that cut into their profits. Without the “Battle for Seattle,” many people still might not realize that “free trade” is about much more than a steel tariff or tortilla tax.

Forced trade’s footprint

“Free trade” means forced trade. A community concerned about its present and future well-being may not put its values into policy, but is forced to do business on terms set by outsiders. From the town hall perspective, a “free trade” regime shrinks the realm of governance and expands coercion from without.

A “free trade” zone is a democracy-free zone. Democracy and “free trade” cannot co-exist, because “free trade” denies the most basic democratic principles.

That said, where does that leave us today? Is forced trade’s footprint in the US any different from what it was a decade ago?

  • Can a local government prevent a corporation from coming in and buying up and selling off local water? How about other resources, such as natural gas?
  • Can a government facility refuse to accept hazardous waste unless it meets certain treatment standards?
  • Can locals refuse to accept garbage imports from faraway non-recyclers?
  • Can locals at least require that imported goods be labeled with such earth-shaking information as county of origin and ingredients?
  • What about other consumer protection laws (food product inspection, liability, etc.), labor laws (from wages and hours to occupational safety) and public safety laws (transportation, vehicle standards, other hazards?)2

Effective laws of this nature are not allowed in the US, and it’s not because of WTO or NAFTA rules. International trade organizations do not spend much effort ruling on most US laws, because the work has already been done. The US Supreme Court and its lower federal court helpers have been throwing protective laws out as “trade barriers” since Ulysses S. Grant was president. The Constitution’s commerce clause was re-envisioned at about that time as the “peg” on which to hang these pronouncements.

So where today international tribunals use the term “trade barrier” to justify voiding laws, US federal courts need say only “commerce clause” to accomplish the same thing. In both cases, unelected tribunals take the place of legislatures, and procedures that are blatantly anti-democratic are glossed as being mere matters of trade/commerce.

The invisible tarp

And so, the story in 2009 is not the great strides democracy has made against forced trade in the decade since Seattle. Nor is it the great strides forced trade has made against democracy in that time.

The story, even in this day of corporate bailouts and military escalation, is still what it was in 1999. Both internationally and domestically, forced trade is firmly ensconced, not only in law but in lore.

In the US, most efforts by local communities or states to protect themselves have been unconstitutional for a century. Until 1870, the Supreme Court had not voided a single local, state, or national law as a trade barrier, an interference with interstate commerce. But then, even as hopes for Reconstruction were crushed, the federal judiciary and newly emerging corporate counsel locked hands to invalidate almost any effort by government to reign in corporate expansion.3

Over the next 60 years alone, 237 state laws were thrown out. Each toss sent a chilling message to other states considering similar laws. Between 1910 and 1930, the rate was greater than one law per week. Valiant state efforts to protect resources, economies, public health, and worker safety, were swept aside as the Supreme Court propped open the great corporate window of opportunity with commerce clause verbiage.

Starting about 1937, the rate of state and local laws voided as “trade barriers” by the Supreme Court slowed precipitously. States had finally gotten the message that preserving the general welfare against gross corporate expansionism was no longer constitutionally allowable. In recent decades, the Supreme Court has thrown out state laws only once or twice a year, on average, if that.

State and local governments, having been popped by the Supreme Court’s gavel hundreds of times already, usually don’t even try any more. The “free trade” tarp has been so expertly and consistently tacked down over state and local efforts that rarely is it questioned. In fact, rarely is it even noticed. The “invisible hand” of the market has given way to the “invisible tarp” of a forced trade zone. Forced trade’s footprint? Near-complete coverage in 1999. Ditto, 2009.

Today, as in 1999, we live under a “free trade” regime presided over by a president who campaigned passionately against the ravages of international “free trade” agreements like NAFTA and the WTO’s GATT.4 A decade ago, the masters of the universe were squabbling even before the Teamsters and Turtles took to the streets. They’re still squabbling today. More importantly, they’re still masters of the universe. They learned that they could conduct “business as usual” with impunity.

Efforts to address climate change, protect our bioregions from the depredations of foreign corporations, respond to peak oil (peak “resource,” really), bend our economies toward local food and local energy, and craft the sustainable and locally self-reliant communities the future requires will not be successful unless we learn to focus on and remove the “free trade” tarp that sits undisturbed over local and state governments. Perhaps at the twentieth anniversary of the Battle for Seattle, we will see some signs of that happening.

This article was first published in Synthesis/Regeneration, Vol. 52 (Spring 2010). You can also read the article here.


A Green Look at the Wisconsin Spring (2011)

By Jane Anne Morris

September 2011, Madison, Wisconsin. The legislative recall elections generated by the Wisconsin Spring demonstrations are over.1 Democrats failed to retake the state Senate, gaining only two seats over the fall 2010 total. Republicans now hold the Senate by a 17–16 margin, and retain control of the Assembly and governor’s mansion. In June, both the anti-collective bargaining bill and the Republican budget, little altered, became law. In other words, no revolution. It is a still point in Wisconsin history: time to take stock.

Media coverage of the “Wisconsin Revolution” has been shot through with an array of superlatives, many of them deserved. Wisconsin’s great “Outpouring” that began in February 2011 was a watershed event. The largest crowds at a political demonstration in state history (up to 150,000 in a city of about 200,000). Weeks of continuous occupation of the Capitol building, with 24/7 marchers outside: also unprecedented.

Even more than size or duration, it was the character of this Outpouring—which took place two blocks from my apartment—that most astonishes. I have never seen anything like it in the US in four decades of demonstrating. After weeks of attending demonstrations and talking to people, I realized that much of the unspoken ideological underpinning of the Wisconsin “revolution” was antithetical to most of what a green agenda would be. But disturbing as that was, I see promise as well.

Thanks, officer

The Outpouring featured a massive presence of law enforcement—both on duty “protecting” the Capitol, and as demonstrators. I’d never been to a month-long demonstration before. I’d certainly never been to a demonstration where law enforcement was so overwhelmingly on the protesters’ side. **I’d never been to a month-long demonstration before.

Case in point: By March 6, just before the nightly “sleepover” occupation of the Capitol ended, officers had been instructed to admit demonstrators only in a trickle (3 out, 3 in). As hundreds waited outside in the late-winter cold, I stood in line with five others, including two kids.

We had already marched around the Capitol Square among tens of thousands of others. The 8-year-old, maracas in hand, had just led the crowd for 20 minutes of a popular chant. “What’s disgusting?” she would yell. “Union busting!” the crowd shouted back. Law enforcement officers, from across the state and spanning local and state departments, walked among us with their signs. Others were out of uniform but wore “Cops for Labor” shirts over their jackets. (Law enforcement officers of all stripes were brought in to defend against union “thugs.” Sometimes, DNR wardens guarded the governor’s office. When their shifts ended, they joined the demonstrators.)

The line to get into the Capitol was so long, we could hardly see the doors. Eyeing the kids, an officer walking toward us asked, “How many in your group?” Generally speaking, when questioned by law enforcement at a demonstration, I exercise extreme caution, go limp, or look for the nearest lawyer or legal observer. This time, I didn’t hesitate. “Five—no, six.” Without another word, he summoned us. Smiling, he escorted us past the front of the line and into the Rotunda.

Nobody in line complained; they smiled, too. If this is the new “normal,” it’s a grand thing.

A few days earlier, the local county sheriff had offered remarks that attest to the attitude of law enforcement. After weeks of no violence in a place crawling with uniformed law officers bumping into each other with no enforcing to do, the sheriff called his deputies off Capitol duty guarding the doors to a then-closed Capitol. He noted that he saw no threat to public order, that cops were there to protect people, not marble, and that his deputies were not a “palace guard” for the governor.2

The courtesy and consideration shown by law enforcement toward demonstrators was reciprocated. During the Outpouring, there were daily rallies where tens of thousands of demonstrators saluted firefighters and law enforcement, hugged and high-fived them, and very nearly rocked the Capitol Rotunda off its foundations with chants of “Thank you! Thank you!” that didn’t flag until the marchers had worked their way through three floors of demonstrators.

At one time or another, I saw almost everybody I know in Madison at the demonstrations, across the spectrum of green or greenish persuasions. But these constituted only a tiny percentage of the people who were there.

Who are all these people? (And where have they been?)

The many tens of thousands who came to demonstrate again and again and again were the ones that made the Outpouring historic. Without them, it would have been just the usual 75 or perhaps 1200 suspects who show up at almost any demo. It was not the starving masses against the corporate masters, or the great unwashed demanding bread from the rich. This was the Great Washed.

Nothing scruffy or shabby about this lot: they were well-dressed and well-coifed. Nor were their vehicles beaters; substantial late-model cars and hulking SUVs suddenly packed the downtown parking garages. This was the middle class, still somewhat amazed that they were doing this. Several told me unasked that they had never been to a demonstration before. Not a few admitted that they either hadn’t voted, or had voted for (Republican Governor) Walker. A lone demonstrator’s sign remonstrated, “This would not be necessary if you voted.”

When another sign asserted, “This is Class Warfare,” it meant the Middle Class. In a comment on the budget Walker finally signed, the (Democratic) Assembly Minority Leader said, “The middle class pays more and gets less with this budget,”3 and the Republican agenda was “at the expense of working, middle-class families.”4 Many of the signs reflected this: “End the War on the Middle Class,” “Stop the Attack on Wisconsin Families,” and “Save Middle Class Working Families” were common. News media references to the middle class uprising were routine. The talk show host who popularized “Governor Tool”5 repeatedly railed against the war on the middle class. In the latter days of the Outpouring, a few signs like “Heal Wisconsin, Tax Corporations,” and “Blame Wall Street—No Concessions,” became more common. But “General Strike” or “Tax the Rich” signs remained outliers.

In the Wisconsin Outpouring, the middle class came out in force. For hundreds of demonstrations and issues before Spring 2011, it did not turn out. What made the Outpouring historic was the enraged middle class, among the only ones not already under the bus.

“When they came for Wisconsin, we said no”

The last generation or so of Wisconsin history resembles that of much of the US.

When they came for low-income Wisconsin, we let them “pioneer” the W-2 (“Wisconsin Works”) welfare “reform” that became a model for the national version. Low-income sorts: under the bus.

When they came for family farmers, we watched the daily hemorrhaging of small farms: Under the bus. When they harassed organic raw milk producers, we looked the other way.

When they came to quash efforts at single payer health care, there was no Outpouring, because, hey, many of us (or a spouse) have “Cadillac” health insurance.

When they came for low-income students, raised tuition and fees, and continued corporatizing the state university system, we didn’t show up.

When they came to build more coal plants, extend the lives of creaky nukes, and store radioactive waste in makeshift quonset huts, we shrugged. Safe and sustainable energy policy: under the bus.

When they came for the LGBT community, no Outpouring, and the civil union constitutional amendment went under the bus.

When they came for undocumented workers (some of whom weren’t even getting paid), and denied immigrants’ rights: no Outpouring.

Business as usual before the Outpouring saw rural and urban public transit wither, while the statewide system of countertop-smooth highways expanded. Big box everything stores proliferated (and are wildly popular in this state) as those familiar Mom-and-Pop businesses went out of business one by one.

The state granted corporate cranberry farmers special dispensation, and looked the other way when water quality suffered. We watched as corporate farms and CAFOs6 not only came, and expanded, but continued to reap subsidies, tax breaks and “regulation lite” from environmental agencies. Both permitted pesticide and fertilizer use and manure-spreading “accidents” continue to pollute state waters. In less than a generation, amber waves of GMO crops (including most of the corn and soybeans) spread over the state.

We watched factory after factory leave Wisconsin seeking cheaper labor and greater subsidies, as laid off workers took jobs at single-digit wages and without job security or benefits. We have turned construction sites, factories, hospitals and schools into similarly tiered systems: A few at the top get decent income and benefits, a few in the middle cling to hope of same, and the rest at the bottom are non-union and non-permanent. We cut social services for food pantries, the homeless, halfway houses, drug treatment programs and affordable housing.

And for all this, steady as she goes over decades, no Outpouring.

We let big water-bottling corporations into the state, putting their profits over the soundness of our aquifers. The legislature privatized the power line grid system so that utilities could dirty our air while profiting from out-of-state electricity sales. We saw the continued weakening of tort laws and similar protections for Jane and John Does. Oops, under the bus. And, right here in Madison, we watched a blatant, brutal, protracted and very public union-busting campaign at a popular store in a known liberal bastion. But no Outpouring. During the union-crushing operation and afterwards, people kept going to the Whole Foods Store in droves.

During the Outpouring, someone carried the placard, “When They Came For Wisconsin, We Said NO.” History records what Wisconsin did when they came. Generally, we said no neither as a state, nor as the middle class. Results were not notably different under Republican or Democratic governors.

But this time, when they came for the middle class, whittled down to the small proportion of public employees whose jobs were not yet privatized, farmed out to subcontractors, turned into temp jobs or downsized, all hell broke loose.

Getting lucid about the American dream

For most participants, the point of the Outpouring was to preserve and expand the current middle class iteration of a lifestyle known as the American Dream.7

The American Dream may have had roots in notions of self-fulfillment, achievement and self-development, but its 20th and 21st century flowering took on the rot of planned obsolescence and invented needs. The pathologically obsessive consumption of stuff—from rare earth elements to plastic bling—undergirds a system where the same propaganda machine manufactures both needs and consent. For the relative few who enjoy it, the American Dream has always been “sustained” only at the cost of casting its consequences over national borders and state boundaries, across class, ethnic and species lines, and onto future generations.

While I support without reservation the rights of everyone to collectively bargain—and further, to live comfortable lives, get health care, enjoy good food and community, and not worry about job security—the American Dream, the happy daze of two-car families in the ‘burbs: the American Dream is the planet’s nightmare. It is the fossil-fueled engine of the most prodigal resource consumption machine in history. It is difficult to imagine anything more un-green than the American Dream.

At one point, the pro-union talk show host I’ve mentioned suggested that cops drive their patrol cars to the Capitol, turn on the sirens, lock the doors and then toss the keys. But this radio personality who so vociferously urged on the demonstrators, who mercilessly berated “Governor Tool,” has another side. He collects gunboat-styled American-made cars, never met a road or highway he didn’t like, and on his darker days ridicules gardeners and bicycle commuters. When he spoke for a general strike, it was to protect the middle class, the right to cruise around for the sheer hell of it in an American-made gas-guzzler.

It was the right to have a good union job stapling together a mcmansion in a new urbanism faux village, or pouring concrete for another nuclear power plant. It was the chance to be a well-paid nurse with benefits and job security at a corporate hospital dispensing overpriced, and perhaps unnecessary and dangerous but profitable, drugs.

In Wisconsin, we think nothing of driving dozens or even scores of miles to commute to work, go to a sports bar, shop at a transnational discount store, or, my favorite, gas up at a favorite station to save a few cents. We eat high on the food chain, with cheese, brats8 and ice cream comprising the most important food groups (after beer, that is). And we are seeing to the next generation: the whole state is a fertile New North American Consumer incubator, raising multiple broods of new humans to take for granted the profligate consumption rates that many view as their birthright.

In this context of perceived plenty, it is ironic that at the Outpouring there was no large-scale questioning of the Republicans’ underlying scarcity claim: that our society lacks the resources to meet everyone’s basic needs, and so must cut jobs and reduce public services.9 Our immense war expenditures were hardly mentioned.

Enormous (and growing) subsidies to corporations engaged in the most egregious industries and practices were seized on as something to complain about, but not as a reason to reject the scarcity ruse (and the Democrats’ failure to effectively question it). The “Tax the rich” theme was as a mosquito buzzing around the “Stop the War on the Middle Class” juggernaut. People live as though there is a scarcity of money, but an abundance of fossil fuels, electricity, and clean water—when the reverse is closer to the truth.

The middle class American dream has become exponentially more resource-intensive even since “Leave it to Beaver” days. But at the Outpouring, the goal of protecting the remaining middle class drowned out any concern for those already thrown under the bus, or for a broader program aimed at establishing a truly just and sustainable society. Suffice it to say that the Outpouring was not a context where there was much talk about the ludicrous idea of basing an economic system on the prospect of constant growth.10

Nor was it a place to suggest moving beyond individual efforts and toward downsizing our entire economy in a big way, much less de-industrializing.11 Or that Zero Waste, rather than feeding the corporate waste-recycling-industrial complex, should be our goal.12 Or how we can’t shop our way to paradise with green shopping, greenwashing and the like, living in happyland.13

Any green future must include a re-imagining of the American Dream so that it is not the planet’s nightmare. This was not the concern that unleashed the Outpouring, but those who came may be closer to understanding it than before.

Can the middle class transcend itself?

Prior to the Outpouring, the Wisconsin middle class overwhelmingly stood by while conservative-corporate forces hacked away at rights, social services, and our natural infrastructure. They also unabashedly lived a lifestyle scripted by a cultural infrastructure that is oblivious to the ecological and social costs of resource use.

But Wisconsin’s Republican-led new anti-collective bargaining and budget laws have already led unions to rethink their roles, membership, certifications, staffing, focus, priorities and strategies. Perhaps middle class union members will bring a similar re-envisioning to the nature of their needs. They are getting less money, they are less secure, and health care and other basic needs are becoming more problematic.

They got a glimpse of why minorities, peaceniks, women, immigrants, Native Americans, environmentalists and others have been demonstrating all these years. Maybe they noticed the strong support of UTI (Union de Trabajadores Immigrantes) protesters. Maybe they saw the LGBT contingent marching.

Seeing themselves, and their children, slipping toward the world of the have-nots, the middle class may be ready to take up common cause with others who have already been thrown under the bus. Maybe they are ready to consider a shift from sharing more stuff with fewer people to sharing less stuff with more people. They might consider joining with those who drive less, walk more; eat less fast food, and keep more gardens; poke at fewer gadgets, and dance more polka.

If serious Greens engage this newly roused middle class, they may be able to make some headway. If they don’t, the jobs-at-any-price bait will be taken and we’ll be even further from solutions, despite the Outpouring.


Corporations for the Seventh Generation, Part 2 (1996)

Part II: Corporations for the Seventh Generation

In view of the historic provisions noted in Part I that used to govern corporations, their representatives must be pleased that at least in this country, boycotts and divestment strategies are considered radical, and “dialoging” is the preferred mode of interaction. The rest of this paper is an exploration of ways to restructure today’s corporation so that citizen activist efforts to eliminate corporate wrongs can amount to more than just a few hard-won needles in a corporate haystack.

As we saw last week, corporations are a special form of business entity given a state charter and certain privileges in exchange for being subject to the will of the sovereign people as expressed through state legislatures.

Over the last half a dozen generations, corporation representatives have managed to set up barriers to insulate the corporation from citizen influence. Several trends have made it more difficult to direct the corporation towards serving the public interest it was created to serve. Among them:

  • Under cover of the U.S. Constitution’s “commerce” clause1 as interpreted by the U.S. Supreme Court, federal regulatory agencies have usurped many of the powers once exercised regularly by state legislatures. Today’s corporations are ideally suited to wage battles on the regulatory front, because it is so difficult for citizens’ groups to match their resources.2 (In many ways, the late 19th century ascendance of the “commerce” argument is an eerie foreshadowing of today’s NAFTA and GATT controversies.)
  • Through a series of leveraged expansions of the “diversity clause” of the U.S. Constitution3 (allowing “citizens” from two different states to be heard in federal court instead of the presumably more biased courts of either’s home state), the U.S. Supreme Court “deemed” corporations “citizens” and thus gave them nearly unrestricted access to federal courts.4 This saved corporations the trouble of defending themselves in the courts of the state where they actually cause the harms.
  • In 1886 the U.S. Supreme Court decreed that corporations are “persons” under the 14th amendment, thus granting them protection under the Bill of Rights.5 Such guarantees of free speech, due process, and equal protection under the law were long considered to apply to human persons. This ruling gave corporations unprecedented “rights” to question almost any law applied to them, and frustrated the ability of the people to direct corporate action in service of the public good.
  • Stockholders, who used to really run corporations, have seen their power dramatically reduced. Today the powerful corporate manager class is insulated from stockholder influence by a variety of stock voting tricks and governance structures that they themselves set up. They are protected from most liability by state corporation codes and lax laws and enforcement. And they write their own paychecks.6

In order to have a world that we would not be ashamed to bequeath to the Seventh Generation, we must make two major changes in the governance of the corporation. First, we must remove obstacles to citizen control of the corporation. Second, we must reinstate provisions such as those enumerated above (in Part I) once governing corporations, and add others that are particularly suited to our times.

“Model” provisions can become part of 1) state constitutions, 2) state corporation codes and/or 3) the actual corporate “charters,” which are the documents states give to corporations to formally bring them into existence. A program to institute such changes would include areas such as the following.

  • People’s power over corporations.
    1. We the people can demand that state legislatures, the most direct expression of the people’s will, use their “reserved power” to revoke the charters of errant domestic corporations. (A domestic corporation is one chartered in that state.) The people of Delaware and a few other states with “easy” chartering policies would have a more exciting time than the rest of us here, since the overwhelming majority of offending (U.S) multinational corporations are chartered there.
    2. In other states, citizens can demand that their attorneys general (or whatever agent is specified in their state laws and constitutions) revoke the permission of errant foreign corporations to do business in their state. (A foreign corporation is one chartered in another state in the U.S. Those chartered in other countries are called alien corporations.) Such actions have already been initiated against Weyerhaeuser, WMX (formerly Waste Management, Inc.), and CSX corporations.7 (See REHW #455.)
  • Annul “rights” given corporations by judge-made law. We can work for state constitutional amendments that underline corporations’ status as subservient to the people and the legislatures, and assert that corporations are not legal constitutional “persons” and thus are not protected by the Bill of Rights of the U.S. Constitution.
  • Re-open corporate affairs to legislative scrutiny. At one time, all corporate records and affairs were open to legislatures or other designated state officials so that state governments, on behalf of the people, could monitor and evaluate corporate actions. We can reinstate such provisions in state corporation codes.
  • Reinstate stockholder/owner control over corporate management and policy. For decades, concerned stockholders have attempted to curb some of the worst excesses of corporate policies, only to find their efforts thwarted by corporate management. We can modify states’ corporation codes to return a modicum of control of corporations to their putative owners, the stockholders. Some basic provisions might include a) a one stockholder, one vote policy, b) prohibitions against issuing non-voting stock, c) removal of obstacles to stockholders’ access to information, initiation of policies, and removal of unsatisfactory corporate management.
  • Give state courts clear authority to hear all corporation cases. State courts, more sensitive to local needs and conditions and more accessible to citizens, once heard most corporation cases. During the last years of the nineteenth century, numerous unsuccessful attempts were made at the federal level to reinstate this practice. Both federal legislation and federal constitutional amendments were proposed. Either one would do the trick.
    Reinstate historic limits on corporations. State corporation codes and/or corporate charters can be amended to include provisions such as the following:
    1. Require corporations to have a specific purpose, with a penalty of charter revocation if said purpose is either not fulfilled or is exceeded. This would include a prohibition on the kind of “look how ethical we are!” advertising that currently dissipates stockholders’ dollars and discombobulates public perceptions.
    2. Require a percentage of stockholders to live within the chartering state.
    3. Prohibit corporations from owning stock in other corporations.
    4. Issue corporate charters for only a specific term of existence, perhaps ten or twenty years.
    5. Limit real estate holdings to that necessary for corporate purposes.
    6. Prohibit any and all political donations by corporations.
    7. Prohibit all civic, charitable, or educational donations not specifically provided for in the corporate purpose.
    8. Impose strict liability for all corporate officers and/or stockholders.
  • Initiate new limits on corporate activities. We can add provisions (to state codes, charters, and/or constitutions) that:
    1. Forbid corporations from doing business under pseudonyms or alternative names.
      Require corporations to use earth-friendly materials in all stages of operations, and to list all ingredients.
    2. Prohibit corporations from buying up patents for the purpose of preventing others from exploiting them.
    3. Require every corporate document to be signed by a human being who thereby takes responsibility for the veracity of statements and the soundness of judgments therein.
    4. Require a corporation to pay for periodic health, safety, and environmental audits by independent experts selected by workers and affected communities.
    5. Require that in the event of bankruptcy, corporate management pay and perks be withheld until all other debts and creditors are paid, starting with workers and small businesses.
    6. Require 95% recycling.
    7. Prohibit corporations from seeking or accepting “incentive” packages from any government entity.
    8. Establish a maximum ratio (like 1:5) between compensation of the lowest-paid worker and the highest-paid executive.
    9. Establish a process similar to “recall” procedures for elected officials, so that citizens can initiate revocation referendums for corporate charters (in the case of domestic corporations) and for certificates of authority (that allow foreign corporations to do business in one’s state).
    10. Require uniformity of health benefits within each corporation for all corporation employees (from CEOs to wage-laborers).

This is just a sampling of some of the options open to us. Priorities might include working to revoke corporate charters, to end the privileges granted corporations under the judicial “corporate personhood” doctrine, and to prohibit political contributions. Most of the obstacles we face are in the arena of judge-made law, but historic legislation and constitutional provisions offer us a solid body of favorable precedents. Much debate lies ahead. But it is high time we shifted the controversy from whether we control corporations to how we do so.
The sky’s the limit. What are we waiting for?








Corporations for the Seventh Generation, Part 1 (1996)

By Jane Anne Morris


Part 1: Legacy Of The Founding Parents

The people who founded this nation didn’t fight a war so that they could have a couple of “citizen representatives” sitting in on meetings of the British East India Company. They carried out a revolution in order to be free of oppression: corporate, governmental, or otherwise; and to replace it with democratic self-government.

It seems that things have slipped a little. Today, as soon as any group or movement puts together a coherent critique of the role of corporations, tongues start clucking. Politicians, mainstream reformers, degreed experts, and media commentators fall all over each other in an effort to dismiss such clear, practical, focused thinking as mere “conspiracy theories” cooked up by unbalanced “crackpots.”

They forget that 17th century political philosopher Thomas Hobbes called corporations “worms in the body politic.”1 Adam Smith condemned them for their effect in curtailing “natural liberty.”2 And most of the so-called “founding fathers” of this nation shared an opinion of corporations that today would earn them the label “lunatic fringe” from the same mainstream tongue-cluckers.3

Those who won independence from England hated corporations as much as they hated the King. For it was through state-chartered corporations that the British government carried out some of its most pernicious oppression. Governments extending their power by means of corporations, and corporations themselves taking on the powers of government, are not new problems.

Because they were well aware of the track record of government- chartered corporations, and because they guarded their freedom so jealously, citizens of the newly independent United States of America chartered only a handful of corporations in the several decades after independence.4

On those few occasions when states did charter a corporation, “the powers which the corporation might exercise in carrying out its purposes were sparingly conferred and strictly construed.”5

But inevitably, the generation that had fought against injustices perpetrated by corporations like the British East India Company and the Hudson Bay Company was followed by others whose memories of corporate oppression were less vivid. Still, the warnings against corporations continued.

On the eve of his becoming Chief Justice of Wisconsin’s Supreme Court, Edward G. Ryan said ominously in 1873,

“[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 of corporate capital….”6

The feudal serfs of corporate capital made a lot of headway during the next fifteen years. But in 1888 President Grover Cleveland echoed Justice Ryan’s sentiments:

“Corporations, which should be the carefully restrained creatures of the law and the servants of the people, are fast becoming the people’s masters.”7

Well into the twentieth century corporate excesses were acknowledged and condemned by some pretty prominent persons. Louis D. Brandeis, a multimillionaire (from his own law practice and astute investments) by the time he became a Supreme Court Justice in 1916, referred to corporations as “the Frankenstein monster which States have created by their corporation laws.”8

Far from being “radical,” harsh criticism of corporations has a long, respectable, and mainstream political lineage. Now that you know you’re in good company, let’s dream a little. Imagine what grassroots environmental activism would be like if corporations were restructured to be responsive to the people and to serve the public interest. What if…

  • corporations were required to have a clear purpose, to be fulfilled but not exceeded.9
  • corporations’ licenses to do business were revocable by the state legislature if they exceeded or did not fulfill their chartered purpose (s).10
  • the state legislature could revoke a corporation’s charter for a particular reason, or for no reason at all.11
  • the act of incorporation did not relieve corporate management or stockholders/owners of responsibility or liability for corporate acts.12
  • as a matter of course, corporation officers, directors, or agents could be held criminally liable for violating the law.13
  • state (not federal) courts heard cases where corporations or their agents were accused of breaking the law or harming the public.14
  • directors of the corporation were required to come from among stockholders.15
  • corporations had to have their headquarters and meetings in the state where their principal place of business was located.16
  • corporation charters were granted for a specific period of time, like 20 or 30 years (instead of being granted “in perpetuity,” as is now the practice.)17
  • corporations were prohibited from owning stock in other corporations in order to prevent them from extending their power inappropriately.18
  • corporations’ real estate holdings were limited to what was necessary to carry out their specific purpose(s).19
  • corporations were prohibited from making any political contributions, direct or indirect.20
  • corporations were prohibited from making charitable or civic donations outside of their specific purposes.21
  • state legislatures set the rates that corporations could charge for their products or services.22
  • all corporation records and documents were open to the legislature or the state attorney general.23

ALL OF THESE PROVISIONS WERE ONCE LAW IN THE STATE OF WISCONSIN. And similar ones were in effect in most other states.

There is no reason why grassroots activists can not insist that we once again impose similar laws to direct corporate actions. But because education and media corporations are silent about the power of the sovereign people literally to dictate terms to corporations, we instead spend our time fighting in regulatory agencies and courts where the odds are against us from the get-go.

Much activism today concerns itself with struggling to induce government agencies to enforce their own laws, or exerting superhuman efforts to close gaping loopholes in existing laws. When we’re not doing that, we’re perhaps trying to add an obviously toxic chemical to a list of prohibited substances. Or maybe we’re trying to coax a corporation that profited greatly from poisoning our air and water to pay for even a small portion of the cleanup costs.

One reason that we the sovereign people don’t know our own strength is that too often we think of corporations and business as more or less synonymous. But corporations are not simply big businesses. You don’t need a corporate charter to sell apples on the corner, or to operate a widget factory. Individuals, sole proprietorships, partnerships and other business forms can do business without obtaining a corporate charter from a state. Corporations are a special case.

A corporate charter granted by a state gives special privileges not possessed by other businesses. And in return, the state retains the power to alter, amend, or repeal said charter. The legislature of a state thus possesses not only the power to grant charters but to revoke them. This power is laid out in what is called the “reserved power clause,” and is explicitly spelled out in the laws or constitution of almost every state. Corporations are all set up by states to serve a “public need” and act “in the public interest.” This is a long- established doctrine.

The corporation, insofar as it is a legal entity, is a creation of the state… It is presumed to be incorporated for the benefit of the public.24

Corporations are instrumentalities of the state, not independent entities. How have we strayed so far from this notion?

Next week, we will outline some of the legal doctrines that were built up as obstacles to the sovereign people’s ability to direct corporate actions. Then we will explore the potential of specific provisions — similar to the ones enumerated above –that we can add to state constitutions, corporation laws, or corporate charters themselves, to reclaim our historic right to make corporations serve the public interest.