Try This At Home (2004)

by Jane Anne Morris

1: The Ambassador

Frame and outer shell, during construction, of a stringed instrument, perhaps a viola.The ambassador’s entourage — two edgy men with ear wires down their backs, and a few hangers-on — formed an irregular security perimeter. Handlers steered her around to avoid ambassadorial stumbles over uneven footing in the cramped space. It was Colómbian Independence Day, so I suppose I should have expected to bump into the U.S. ambassador in the mummy room of the National Museum in Bógota. What better way for the ambassador to demonstrate her deep concern for the people of Cólombia and bone up on Colómbian history? Like the fact that the National Museum building was originally designed to be the perfect prison — an application of the principles of Utilitarian Jeremy Bentham’s 1787 Panópiton. From a single vantage point, one unseen overseer could monitor all activities of all prisoners, 24/7. Significantly, Bentham noted that the plan would work just as well for factories, schools, poorhouses, and hospitals.

From 1905 until after World War II, “El Panópico” was Colómbia’s most fearsome prison. The central surveillance point was a round guard tower (now an airy rotunda sponsored by Siemens Corporation) with lines of sight radiating out toward eyelid-shaped windows on three floors of tiny prison cells. Those who survived detention there emerged looking little different from the mummies that riveted the ambassador’s attention.

The Panopticon is to space what a mummy is to time: an effort to extend and preserve the power of a few. Mummification — a precursor of cryogenics and cloning — is about memory and control. The Panopticon &mdash like the junior high school intercom left on when the teacher is out, like the invisible “cookie” behind your computer screen — is about hierarchy and control. The system requires fewer overseers with whips, because inmates do the heavy mental lifting. Shrouded in a wrap-around one-way mirror, the prisoner (student, teacher, consumer, citizen) is shaped more by the possibility of sanction than by its actual presence. Physical force stands down and waits on-call for special occasions, while self-censorship takes over daily operations. Because it derives its power from the inmates’ internalization of the work of the watcher, the Panopticon succeeds whether or not there’s anyone in the guard tower. The museum goes one better: it works even without a guard tower.

Conversion of El Panóptico to the National Museum required substantial renovation, but the overall design was eminently appropriate. Outstretched museum wings preserved the Panopticon’s radiant structure, while inner walls were removed to make space for artifacts and photographs. Today the voluntary museum visitor can scan the dominant culture’s shorthand for thousands of years of cultural diversity — stone knives, clay pots, textiles that cry out for human touch — efficiently labeled and laid out in rows of busted-out cell blocks. Leaving behind the grit and dust and reek and blood and guts, a museum coaxes and shapes the past into a runway for the future. For the future that is a perfect backdrop for a corporatized world.

In the U.S., this corporatized world is an open-air Democracy Theme Park where people go to hearings and pull voting levers, while decisions are being made elsewhere. Just as the Panopticon functions without the prison’s guards, and the museum functions without the Panopticon’s guard tower, the democracy theme park functions without the museum’s walls. Ideas that in the museum were safely caged, then tamed, are let out and encouraged to mingle and “pass” as natives.

In Colómbia, almost-daily massacres and assassinations are necessary to maintain corporate power, but in the U.S. it is more often the little man in the head who makes people enthusiastic foot soldiers in the war against themselves. In this darkness at noon, inconvenient facts are taken apart and reassembled in the theme park scaffolding. Popular rides include the Regulatory Agency Roller Coaster and the Voluntary Code of Conduct Mule Train. The Reform Gallery features Welfare Reform and Campaign Finance Reform. In the Constitutional Rights Hall of Fame, people can take part in regular re-enactments of famous battles. The democracy theme park even has its own museum, where other corporate power grabs are reinterpreted as “people’s victories.”

Ambassador Patterson has a role to play in the U.S. democracy theme park. So on Independence Day, the ambassador goes not to inspect helicopters used in the “War on Drugs,” but through downtown Bógota with its “Plan Colómbia = guerra” graffiti to the national museum to check out the props for the “War on Democracy.” When not mummy-gazing, Anne Patterson, the U.S. ambassador, is the on-site point person for stage-managing the Colómbia campaign, a critical testing ground for global corporatization. Her job is to transform a corporate resource-grab of mind-boggling proportions and unsurpassed brutality into a fairy tale with a “War on Drugs” theme song. There will be lots of heroic action against giant mutant coca plants and cartoon-like bad guy “drug lords.”

Patterson has lots to do. She has to deny that U.S. aid supports right-wing paramilitary death squads. She has to deny that U.S.-sponsored “coca fumigations” are killing subsistence crops, domestic animals, and people. She has to deny a U.S. role in the provision of a Colómbian army escort for a U.S. corporation’s illegal drilling on indigenous lands. She has to deny U.S. complicity in the methodical assassination of Colómbian labor leaders by U.S. soft drink corporation thugs. She also has to advertise and promote numerous U.S.-backed social, health and educational programs whose primary existence is on billboards. To their supposed beneficiaries they are convenient scams that fill the feeding troughs for a corrupt elite. And she has to read and sometimes respond to letters, faxes, and emails from pesky activists in the U.S.

2: The Activist

Patterson is no busier than Grendel, from Anytown, U.S.A. Grendel — she’s “one of us” — keeps a diary of her activism. Here is the last week’s worth.

On the first day, on Monday, she stuffs envelopes for Save the Dolphins campaign, and goes to a neighborhood meeting to discuss organic, sustainable food.

On Tuesday, she does research for her regulatory agency testimony to fight a local corporation’s pollution permit; she leaflets at a demonstration to support boycotting a brand of gasoline.

By Wednesday it’s time to work on Voluntary Code of Conduct provisions for corporations, then have a meeting to decide which “socially responsible” investments to recommend. (Here there’s a note that the meeting broke up after an argument between two factions. One favored the corporation that hires people of color and women to build nuclear power plants; the other favored the corporation that’s famous for union-busting but builds fuel-efficient cars).

Come Thursday, she sits down to write letters to state legislators and Congress, urging broader disclosure laws for chemicals. Then there’s that fax to Colómbia urging the U.S. ambassador to begin an investigation of the latest government-assisted civilian massacre. In the evening she “persons” a literature table at a panel discussion of unions and globalization.

On Friday there’s a strategy meeting on helping the Community Health Clinic stay open two days per week. After that her group tries to decide what to do about sweatshops and de-regulation.

Saturday is money day. In the morning there’s a bake sale to pay lawyers to pursue regulatory agency and court appeals. In the afternoon there’s a 5K Run fundraiser to pay fees, fines, and lawyers to bail out banner-hangers from their last demonstration.

It’s Sunday as she looks over her diary, the day that she must set priorities for the next week. She can’t possibly contribute to all the causes that she cares about. Should she skip the dolphins and add social security? Should she forget Colómbia and switch to Nigeria or East Timor? Should she work on radioactive waste storage and worker safety instead of campaign finance reform and groundwater contamination? Should she skip the demos so she can spend more time in the library reading about others going to demos? Should she dress up as a mutant to publicize pesticide use in public schools?

By this time it is late Sunday night. Grendel drifts off to sleep, and has a dream.

The Dream (As told by Grendel)

At the Mega company picnic, two teams were playing in something like a generic soccer game.

One team was us, the neighborhood, citizens, activists — and the other team seemed to be Mega, or something very much like it. We were getting close to scoring, but then Mega tilted the field so that we were heading uphill, them downhill. Then we were about to score again, and they stopped the game and said, You, You, You — are disqualified and can’t play. Then they told us that we couldn’t use certain plays. But we kept playing harder and almost scored again. This time they said that our team would have to play blindfolded. Then Mega narrowed our goal posts, and widened theirs. Then they bought off the referees. We finally scored anyway but they said that our score didn’t count. The referee blew the whistle and it was my alarm clock going off.

The next morning over coffee Grendel tells her dream to a neighbor, who says it’s transparent and proceeds to translate.

(The Neighbor’s Translation of the Dream)

The soccer game is how we’re always fighting against Mega Corporation. When they tilt the field, that means that they have a built-in advantage with more resources to use against us, and tax-deductible expenses. Disqualifying our players is like when they sue us for writing letters to the editor, or tell us that we don’t have standing. Banning certain plays is like when they say we aren’t allowed to bring up certain topics or issues at hearings. Or when our testimony is limited to two minutes. By withholding information — like about what chemicals they’re using — corporations force us to play blindfolded. Widening their goal posts is when all of the possible options are favorable to Mega. Even if we seem to win on something they can appeal it until the sun burns out. Buying off the referees is like when they grant favors to politicians, make campaign contributions, and use their political power to influence regulatory agencies and courts. Or, it could be when they can choose what court a case is heard in. When we score a goal but it doesn’t count, that’s like when suddenly a corporation is granted exemptions and variances from existing law. Or when a federal court throws out as unconstitutional a local law that we’ve worked for years to pass. And the referee blowing his whistle, that’s your alarm clock.

3: Knock, Knock

Contrasting the two dream teams reveals a fundamental asymmetry between activist strategy and corporate strategy. Activists dress up as corporate executives to get into meetings and buildings, and as animals to get media coverage. When is the last time a corporate executive dressed up as an Earth First!er or a turtle or an U’wa to get attention? While we are stuffing envelopes, writing letters to our “representatives,” and talking to twelve people at a time in living rooms, corporate executives are writing laws and buying television stations.

While the community response is to play harder — to try for bigger demonstrations at the Capitol, more letters to elected officials, more experts at the hearings, maybe add a banner — the corporate response is to CHANGE THE GROUND RULES. Under increasingly unfair ground rules, no matter how hard we play, we won’t ever score, or won’t score enough to matter. Corporate ground rules are not intended so much to affect a particular issue — though they do that — as to frustrate and dilute people’s efforts over a broad range of issues.

Corporate strategy is to change the ground rules for ALL games — labor organizers, human rights workers, toxics campaigners, everybody. But people’s efforts usually only work for ONE GAME AT A TIME. Even if we share common values and care about many of the same issues, we are inevitably rivals STRUCTURALLY. Like Grendel who faced this issue on Sundays, we find that If we have spent our efforts trying to save the dolphins or promote sustainable agriculture, we have fewer resources and less time left to work on toxic cleanups or prisoners’ rights.

This same fragmentation is evident at conferences, where after an opening keynote speech, attendees fan off into an almost endless array of particularized workshops and panel discussions. How to stop one corporation from using one chemical. How to get communities to recycle one type of container. How to get one framed political prisoner out of jail. This is not what corporate strategy looks like. A corporation does not have a separate team of lawyers, experts, lobbyists and public relations persons for each of the thousands of chemicals dumped into the environment. Or for each separate labor law violation. Or for each state, or each voluntary code of conduct, or each chamber of commerce, or each article of clothing, widget, or brand. Most of what corporate strategists do works across the board: it helps the particular corporation in many areas, and, it makes corporations in general more powerful. This is what working on ground rules does for you.

As a result of this difference in strategy, where people’s efforts are subtractive and divisive, corporation efforts are cumulative and synergistic. A score or victory for one corporation helps all corporations, but our work on one issue or campaign takes resources from others. In the soccer game analogy, we’re exhausting ourselves struggling uphill trying to score a goal, and they’re tilting the field. What we have termed ground rules amounts to no less than the political process, the assumptions and understandings that in a democracy are supposed to result in self-governance by the people. The democracy theme park has obscured both the current ground rules and “who” is using and writing them.

This “who” is not “The Corporation” because the corporation is not a who at all. People say “Monsanto did this” and “Philip Morris did that” with the casualness and familiarity you’d expect when describing an errant uncle with a hip flask. The more accurate term for the abstract legal fiction is Monsanto Corporation or Philip Morris Corporation. But corporations don’t really DO anything. The things that get done in the name of the corporation are done by people. Corporate executives make corporate policy, award each other golden parachutes, and hire lawyers to manage lawsuits and regulatory agency matters. They extract wealth from the work of others, call this the corporation’s wealth, then use it to externalize costs onto society and the earth while funneling profits to a tiny group.

Business corporations in their current form1 — as vehicles for the concentration of wealth and power in the hands of an elite — are incompatible with democracy. That’s why they are so popular with an elite whose status depends on insuring that democratic processes don’t happen. A corporation is the most recent and most successful effort to do all the things that elites hoped mummification, the Panopticon, and museums would do: preserve elite power. Corporate executives make decisions and manage the money, while workers follow orders (on pain of losing their livelihoods) and add value.

The “corporation” is a legal fiction to hold money and power for a few; it gives them access to “corporate” resources and shields them from responsibility for their actions. But, finally, a corporation is not a sentient being, not a conscious actor, not a target, not a “citizen.” It cannot be “punished” or negotiated with, or elope or go insane. It can’t be “socially responsible,” or have an opinion on global warming. It can’t have “rights.” If people believe it can do any of these things, then the corporation succeeds as a decoy to confuse issues and take the flak for an elite. But the corporation can still be de-constructed, and not a moment too soon.

4: The Stowaways

In a world where “corporations” can break laws, they can also get permits. Most corporate harms to democracy (like other corporate harms &mash; to human rights, the environment, and so on) are perfectly legal, because corporations have “permits” to conceal, oppress, and pollute, all courtesy of our supposedly democratic government. This is because many corporate powers, privileges, and even “rights” rode into town as drivers and stowaways on the “reform” bandwagon. Often, the “reform” is just another chip off the block of people’s sovereignty shoveled into the corporate bag.

For instance, the biggest boost corporate campaign contributions ever got came from the so-called campaign reform bills of the post-Nixon era, which invented and legalized political action committees (PACs). This legalization of corporate interference with democracy replaced laws like this 1905 Wisconsin law:2 “No corporation doing business in this state shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.” State legislators in Wisconsin, under constant pressure from corporate lawyers, weakened this law, and then national legislators preempted it by legalizing PACs. Yet, when in the 1970s legislators tossed this shovelful of sovereignty into the corporate slag heap, the event was commemorated in the democracy theme park’s “Reform” Gallery.

Regulatory agencies have always been part of the corporate elite’s “War on Democracy,” masquerading as reform. State legislatures were never models for direct democracy, but for a long time they remembered that corporations were only their creations, to remain subordinate and follow precise operating instructions. If corporate officers disobeyed, state legislatures simply voted to eject the corporation (if it was from another state) or dismantle it and take over the assets (if it was from the home state). Historically, regulatory agencies were designed by corporate lawyers to protect large corporations against public uproar, upstart competitors, and too-democratic state legislatures. They still do all that, plus provide years of character-building experience for those entrapped in their procedural mazes. After more than a century of failing to “rein in” corporations, they are still among the biggest attractions in the democracy theme park.

Antitrust laws provide another example of the “reforms” that shelved indirect democratic control of corporations and replaced it with feeble regulations. Until the 1880s, all states prohibited “corporations” from owning stock in other corporations. Most discussions of antitrust are superfluous and unnecessary when such prohibitions are in place. Under pressure from powerful corporate executives, state legislators removed these laws from the books, so that by the early twentieth century none remained.

Demanding transparency from government and its agencies is basic to self-governing. If you don’t know what your government is doing, you don’t live in a democracy. Current law requires corporate officers to reveal very little about their operations to the public, despite the fact that corporations are brought into existence through corporate charters granted by state legislatures. Disclosure laws that fall short of transparency are not “reforms,” they are obfuscations. From its first year of statehood, Wisconsin required that all vaults, books, safes, books, papers, keys, and documents that pertained to a corporation’s affairs and condition be open for inspection by the state that created it. Laws like this were typical and stayed on the books well into the twentieth century when people started believing that the abstract legal fiction of the corporation had “rights.” Today, no proposed “reform” comes even close to the degree of disclosure once taken for granted.3

The idea that a corporation can be “bad” leads quickly to the “reform” idea that it must be “punished.” The mirage that corporations can be punished works against democracy by deflecting sanctions away from a controlling elite. The recent tobacco settlement is a case in point. For decades tobacco corporation executives and their predecessors made billions of dollars in profits by knowingly marketing an addictive carcinogen as a fashion accessory. Not a penny of the over $200 billion in fines will be paid by corporate executives, the decision-makers of the corporation. Instead, that money will come from the usual places: workers (through lower wages and benefits), stockholders (lower dividends and stock prices), the general public (through health care and other externalized costs) and consumers — people still purchasing “nicotine delivery systems.” Tobacco corporations even got legal immunity from some future liability in the agreement. The executives admitted no wrongdoing. Taking the product off the market is nowhere in sight. Life is good for corporation executives. They got a little bad publicity for a while, but nothing that a few name changes, some shifting of assets among corporate parents and subsidiaries, and slick advertisements can’t fix.

The Corporate Social Responsibility (CSR) concept was invented by corporate executives in the 1930s to offer up as a “reform” to head off calls for democratic control. It has enabled corporate executives to frame the public debate around a few voluntary, temporary pacification measures instead of fundamental democratic change. The recent Enron Corporation collapse and subsequent high-profile accounting scandals inspired many prominent CEOs to go on tour ululating over the joys of “corporate citizenship.” Even the CEO of CEOs, President Bush, stood in front of “Corporate Responsibility” wallpaper and positively swooned about corporate ethics. Democratic control of corporations is not mentioned in these performances.

Voluntary codes of conduct — a subset of CSR — mirror the Panopticon system, with citizens in the cell blocks. Corporate executives who have persistently failed to follow mandatory codes of conduct (i.e., laws) promise to try to follow voluntary standards. Shielded by the guard tower (the legal fiction of the corporation), their actions are disclosed only when they choose. Voluntary codes of conduct are like laws, but without enforceable disclosure, monitoring, or performance provisions. As with other CSR measures, any corporate costs are tax deductible, either as business expenses or as donations.

While reducing the corporation’s tax bill (if there is one) and the government’s tax revenues, CSR bypasses the public process that in a democracy would determine how taxes are spent. CSR gives “the corporation” a good reputation, garners praise from communities, reduces corporate taxes, depletes the government’s resources, bypasses the democratic process, and puts a handful of corporate executives in the position of making what are essentially policy decisions for the general public. After every labor struggle, depression, and social upheaval (like the “chain store wars” of the 1930s), there’s an injection of “corporate social responsibility” — the 1970s, post-World War II, the Depression, back to the late nineteenth century rise of corporate power. At the end of the twentieth century, the brouhaha surrounding the World Trade Organization (WTO) precipitated another round of CSR pronouncements.

Each of these “reforms” made society less democratic and moved the locus of control further away from the people.

5: The Hijacking

Corporate lawyers working on behalf of the legal fiction of The Corporation use human constitutional rights EVERY DAY to frustrate the people’s will and further degrade our democracy. What better staging area from which to direct a “War on Democracy” than the hallowed grounds of the U.S. Constitution? In a nutshell, the fruits of people’s struggles are hijacked by corporate lawyers and used to protect corporations against the will of the people. Like the “War on Drugs” camouflages the corporate resource grab in Colómbia, the rhetoric of “rights” masks the corporate takeover of the Constitution. Abolitionists struggled to end slavery and pass the Fourteenth Amendment, including the equal protection clause. But since 1886, corporate lawyers have successfully claimed — through “corporate personhood” — that laws that “discriminate” against their corporations are unconstitutional under this clause. Laws specifically intended to discriminate against harms (chain stores, toxic garbage, sweatshop-made clothing) are routinely declared unconstitutional. Historically, the equal protection clause has most often been used to protect corporations against laws, and not to protect human beings against discrimination. At best, African-Americans and women have benefited from equal protection “lite.” Corporations, however, continue to benefit from full-strength equal protection.

Corporate lawyers use the due process clause of the 14th Amendment on behalf of “corporate persons” to support numerous appeals of laws and regulations. Claiming that a corporation’s due process rights have been abridged, they demand appeals and rehearings and other procedures that were intended to protect the human and civil rights of human beings. Fourteenth Amendment “personhood” has functioned as a constitutional gateway for the granting of other “rights” to corporate persons. The Civil Rights Act of 1964, passed after much struggle and loss of life, was used by a transnational telecommunications corporation to sue a local government for monetary damages after it denied the corporation a desired cell tower site. Corporate lawyers argued that government action had violated the corporation’s civil rights. Yet instances of racial profiling, police brutality, DWB (”Driving While Black”) and other forms of discrimination provide daily reminders that civil rights for human beings are far from guaranteed.

The First Amendment doesn’t work so well for human beings wanting to exercise free speech rights to talk about unions at their workplaces, or leaflet at a shopping mall. But it has worked very well for corporations seeking to escape product labeling laws (like the Vermont rBGH case) and evade already weak campaign finance laws. Fourth Amendment protections against unreasonable searches and seizures often fail to keep the authorities out of your apartment, your car, or your personal records. But corporate lawyers have used that same Fourth Amendment on behalf of corporate “persons” to keep OSHA (the Occupational Safety and Health Administration) and the EPA (the Environmental Protection Agency) from making meaningful inspections of corporate facilities, and to prevent other government agencies from seeing corporate records. This betrayal of centuries of people’s struggles is deep in the fabric of U.S. law. It is the ground rules.

In the corporate view, to ban chain stores is to deny corporate rights to equal protection before the law. To hold corporations to legislative standards is to deny them due process. To require labels on food is to violate corporate First Amendment rights. Meaningful inspection of factories is a violation of corporate Fourth Amendment rights. If all this is really unconstitutional, then we need to take another look at the constitution. If it’s judges bending over backwards to justify pro-corporate decisions, then we need to see about the judges. But either way, if it’s unquestioned, it will continue to run the underground machinery behind the democracy theme park, while people outside wait in line for the rides. We don’t hear much about any of this, in these terms, because news media corporations report it as “reform” and “defense of constitutional rights.” Then it fits effortlessly into the democracy theme park. Every minute we don’t challenge it, we reinforce it.

6: Try This At Home

I would like to invite Ambassador Patterson out from among the mummies in the renovated Panopticon to the rolling hills of Pennsylvania. We should invite Grendel and her neighbor, too. In Pennsylvania, people decided to fight against the “War on Democracy” on their own turf by doing the most basic thing a self-governing people can do: protect their communities against poisons and assassins. People in a number of townships decided that corporate hog farms are a threat to their well-being and passed laws banning them. Working with Tom Linzey of CELDF (Community Environmental Legal Defense Fund), they passed a series of ordinances that is driving corporate lawyers hog wild.

Walk into a roomful of lawyers and say you want to pass a law banning corporate hog farms, and before you draw your next breath they will have ticked off half a dozen reasons why that would be “unconstitutional.” Current corporate ground rules, if followed, frustrate efforts at democratic local control. But instead of backing down when corporate lawyers say their laws are “unconstitutional,” the Pennsylvanians are insisting on their democratic rights. They’re basing their resistance on the earthshaking notion that they are a self-governing people, that corporations don’t have the constitutional “right” to force them to allow their communities to be destroyed. By not backing down, by this seemingly simple act — passing a local law that addresses a community concern — these Pennsylvanians are challenging the whole pantheon of corporate law that the ground rules are based on. Any straightforward, commonsensical measure will have the same effect. Ban Walmarts. Ban radioactive waste shipments. Require that all waste be recycled. Ban genetically modified organisms. All set up challenges to the same handful of ground rules that keep us from controlling the most basic aspects of our daily lives.

The sameness of these ground rules presents an opportunity. Once we get past the parts-per-million or cents-per-hour of our particular issues, we’re up against the same lame corporate ground rules. If Grendel fights the ground rules that she comes up against on her issues, and the Pennsylvanians fight the ground rules that corporate lawyers throw at them — sooner or later it becomes apparent that, while each is working on local issues and corporations, we’re all organizing to oppose the same half a dozen or so ground rules. Even without going to meetings, our efforts will be cumulative and synergistic. Ambassador Patterson’s job description would change, too. Right now, our states are chartering the corporations that are pillaging Colómbia. U.S. consumers are buying products that come from Colómbia. U.S. taxpayers are paying for the military occupation of Colómbia. The roots of corporate power outside of the U.S., and the U.S. government’s massive and often violent support of it, lie in the lack of direct local democracy at home. If we end the “War on Democracy” here in the U.S., we won’t be exporting it to our neighbors.

The Berlin Wall was taken down in 1989 by ordinary people, not by a specialized task force. It did not come down because of fancy legal arguments or because people were yelling at it. It came down because no one at any position in the hierarchy on either side of the wall could take it seriously. It was the last ride in a theme park that no one believed in any more. It was taken apart with joy, by people who were suddenly asking themselves, why did we wait this long? When we feel that way about the democracy theme park and corporate power, and can all cackle together at the silliness of a “corporation” having constitutional rights, they will come down too.

**********

“Try This At Home” was first published in Globalize Liberation, David Solnit, editor. San Francisco: City Light Books, 2004.

Notes

Let Stockholders Make Call on Favre (2008)

By Jane Anne Morris

The Green Bay Packers control Brett Favre’s fate, but the people control the Green Bay Packers. The thousands of Wisconsinites who own stock in the team should hold a town meeting at Lambeau Field at the upcoming July 24 annual meeting of Green Bay Packers Inc., and make some decisions the old-fashioned way.

Every July, Wisconsin newspapers run photos of thousands of Green Bay Packers fans attending the annual stockholder’s meeting. Over 100,000 stockholders collectively “own” the team, the NFL’s only community-owned team. Current league rules prohibit community ownership.

The green and gold’s special structure, a public, nonprofit corporation, was “grandfathered” into the NFL in 1961. How else could a relatively small media market keep such a legendary team? The hullabaloo that accompanies having such a charismatic team in your town brings local benefits, and all team profits go to the American Legion.

In the “old days” of corporations, all stockholders held voting stock, and chose management to fulfill their aims, which were usually more than merely pecuniary. Sure, they wanted to make some money, but they also wanted other things: a train line to carry their crops to market at fair rates, the business that would be drawn to a crossroads with a railway stop, or a factory that would pay good wages and provide safe working conditions for their sons and daughters.

Today, in corporations — both for-profit and nonprofit — and even in government (gasp!), non-democratic structures and institutions have insinuated themselves like defensive screens between the stockholders (or the people) and the management (or the government). So loyal Green Bay stockholders are spectators not only at Packers games, but in the drama of picking a quarterback, and in making most decisions about the team as a whole.

We need reminding that for all their plump salaries, Brett, his teammates, the coaches, and their staff are all employees. They work for a community-owned nonprofit corporation. That community probably should not be calling in plays during a game, but determining the overall shape of the organization is part of its responsibility as owner. Which brings us back to the matter at hand.

Brett wants to play. Packers management, evidently tiring of his agonizing uncertainty about retirement, doesn’t want to reinstate him. Fearing that he might join the Chicago Bears or the Minnesota Vikings if given the chance, management doesn’t want to release him. A trade, the third option, would allow management to control where he goes.

A big decision looms, and it’s time for management to hear from the owners. It’s time for the community to take back the Pack. After vigorous debate, they should decide what to do about Favre (reinstate, release or trade), and then direct the management to carry out their wishes.

And then, after dispensing with the momentous decision about the quarterback, and exercising all of those community-grounded democratic muscles, we could try them out on some of the issues confronting us outside the stadium.

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Jane Anne Morris’s latest book is Gaveling Down the Rabble: How ‘Free Trade’ is Stealing Our Democracy (Apex Press, 2008). She lives in Madison and is a Packer backer.

Notes

“Let stockholders make call on Favre.” CT: The Cap Times (Madison, Wisconsin), July 23-29, 2008.

(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)

by Jane Anne Morris

Before running off trying to counter the recent Supreme Court decision in Citizens United v. Federal Election Commission (FEC), we ought to sort out what this decision does and does not do.

The Citizens United decision does make our democracy theme park a little worse, the way having an atomic bomb dropped on your own house would be slightly worse than having it dropped on your neighbor’s. But despite dire claims that the decision is the nail in the coffin of our democracy, that it will shake the current election system to its core, and so on, the case changes very little of our current situation.
Continue reading “(Citizens United) Court’s Campaign Money Ruling Is a Red Herring (2010)”

Strip Corporations of their Cloaking Devices (1996)

By Jane Anne Morris

 

Who spends the most time in federal courts complaining that their “due process” and “equal protection under the law” rights have been violated? Pushy women? Uppity Blacks? Gray Panthers? Illegal Mexicans? The Sandhill Crane Militia? HIV-positive Navy gunners? You really don’t know, do you?

None of the above.

Plaintiffs in such cases are most often large corporations.

That’s because before women gained the right to vote, long before Blacks could eat lunch at a drugstore counter, corporations were granted the rights of “natural persons” under the Fourteenth Amendment.

The Fourteenth Amendment (1868) to the U.S. Constitution reads in part,

[No state shall] deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment was passed in 1868 to guarantee to Blacks, especially former slaves — the full protection of the U.S. Constitution and Bill of Rights.

Thanks to an 1886 Supreme Court decision (Santa Clara) since questioned but not yet struck down, corporations are now able to use the Fourteenth Amendment to fight against the government that created them and the people who try to control them.

Corporation lawyers wrapped the fictive corporations they represented in the mantle of personhood and then made their pilgrimage to the highest court in the land. There in 1886 the Supreme Court sanctified the corporate cloaking device that would enable them to elude and evade the will of the people who created them.

What does “personhood” do for corporations?

  1. It gives them grounds to question in court any government action.
  2. Along with other legal doctrines, it makes it easier for them to gain a forum in federal courts and thereby escape the state courts, which are usually more reflective of the will of the sovereign people.
  3. It expands the power of appointed-for-life federal judges to essentially make law.

Think of it this way: Before 1886, people tried to DEFINE corporations to serve the public interest. This is appropriate for entities that were created for just that purpose. But after 1886, corporations had the rights of constitutional persons, and so the government was reduced to trying futilely to REGULATE them instead.

One constitutional scholar described the effect of the Fourteenth Amendment in this way:

A constitutional doctrine contrived to protect the natural rights of men (sic) against corporate monopoly was little by little commuted into a formula for safeguarding the domain of business against the regulatory power of the state. (Walter H. Hamilton, 1938)

As countless court cases have affirmed, the purpose of corporations is to serve the public interest. Corporations are created by the sovereign people acting through state legislatures. As legal fictions existing to serve the people, they have no rights or even existence outside of the people’s will.

This is not the same thing as saying that corporations should have no rights of any kind. The people, acting through legislatures, may decide that corporations of a certain kind should have the right to sue and be sued; or, the right to be treated similarly to other corporations in the same class. The people may declare that corporations and their officers are subject to criminal prosecution. They may decide that small, local, independent businesses should have rights not extended to huge multinational chains.1

But such rights, if appropriate, should be granted singly and consciously, and not as part of a vague judge-made package deal that starts out by giving corporations the rights of “natural persons.”

No referendum was ever held on whether corporations should have the natural rights of human persons. No legislature ever passed a bill giving corporations such rights.2

We agree with Justice William O. Douglas, who stated in a famous 1948 Supreme Court dissent:

If they [the people] want corporations to be treated as humans are treated, if they want to grant corporations this large degree of emancipation from state regulation, they should say so. The Constitution provides a method by which they may do so. We should not do it for them through the guise of interpretation. (Wheeling Steel Corp. v. Glander, 337 U.S. 562)

At Democracy Unlimited we concur with Justice Douglas when he said, “I can only conclude that the Santa Clara case was wrong and should be overruled.”

Why wait around?

Democracy Unlimited is circulating a petition in support of a Wisconsin constitutional amendment that states that in Wisconsin, corporations are not persons with the constitutional rights of persons.

If such an amendment were passed, it would immediately be challenged and could even reach the U.S. Supreme Court. It will not be the first time that our fair state places itself at the forefront to insure that government of the people and by the people does not perish from this earth.

Let’s remove this obscene cloaking device that gives corporations more rights than you.

***********

“Strip Corporations of Their Cloaking Device” was first published in the Democracy Unlimited News Dispatch in Wisconsin, fall of 1996. It has also been reprinted in Defying Corporations, Defining Democracy.

Notes

Stone Soup, Democracy Salad, Just Desserts (1997)

By Jane Anne Morris
 

John Colepeper
What would JC do?
Centuries ago, Sir John Colepepper said of the “corporations” of his day,

Like the frogs of Egypt, they have gotten possession of our dwellings and we have scarcely a room free from them; they sip in our cup; they dip in our dish; [and] they sit by our fire.

Today, as corporations slobber in our cups, they also get into our minds, so much so that the very mention of “Participatory Democracy” sends people fleeing.

What gives “democracy” such a bad name? Everything about the way we practice it in the USA today. What we experience every day as “democracy” bores us to tears, leaves us frustrated, and gets us nowhere.

We know from experience that our “democracy” is a fake: we get to go through the motions of voting, testifying, writing letters, picketing, but most decisions have already been made before we even raise our voices. And if we do get a tiny concession, it will be temporary, just enough to pacify us until our government officials can go back to carrying water for their corporate masters.

One might argue: if our current “democracy theme park” is a boring, frustrating waste of time, then the Real Thing — Participatory Democracy — must be even worse.

Just think of it: day-long meetings, institutional coffee, plastic molded chairs in a stuffy conference room. Sounds like something we would want to really struggle for, eh?

Imagine the bumper sticker slogans: “Participatory Democracy: Almost as Good as Warmed-Over Spit!” Or, “Participatory Democracy: It’s Boring and Tedious But It’s Good For You!”

Not so fast. What we have here is a half-baked idea. Judging democracy by our current political process is like evaluating Mexican food by what you get at Tacko Bell.

“Theme Park Democracy” is boring, frustrating and tedious because it’s neither democratic nor participatory.

And this suits corporations just fine, because over the last century and a half they have moved in to occupy the places that people are supposed to have in the democratic process. (They sit by our fire.) Corporate “persons” now exercise many of the constitutional rights guaranteed to human persons. And this invasion of the “personhood” snatchers is a huge part of the reason why our current political system is undemocratic to the core.

But even when its very personhood is threatened, ours is an irrepressible species. There’s always someone who remembers how to make Stone Soup.

A woman goes to the middle of an impoverished village, where many are near-starving, and sets a huge pot of water to boil. She throws in a stone, and tells the hungry villagers that she’ll make them a hearty meal of stone soup, if only they’ll chip in. A few hesitant villagers toss in table scraps, bits of greens, an onion or a potato here and there. Soon the villagers are bringing in handfuls of grain, vegetables overlooked in their gardens, sprigs of herbs from their barren pantries, forgotten roots from corners of their cellars. And, you guessed it, the stone soup is a culinary success. And the making and eating of it is spontaneous community-wide democratic performance art.

Our version of Stone Soup is the pot luck dinner.

We invite a salad of people. Friends, family, visitors, and various hangers-on — all are welcome. The only “persons” left out are corporate “persons” — who would ever invite a corporation to a pot luck? (They dip in our dish).

We invite people, sovereign people. Hungry sovereign people.

We share and share alike. Everyone brings what they can. Artful chefs who sing to their vegetables bring the fruits of their art. But the exertions of the choppers, the graters, the knife-sharpeners, the pickers of fruit, the tossers of salads, the cleaner-uppers, are appreciated as well. There is room for everyone at this Inn.

We eat what we need. Individual actions are leavened by the gentle sifting of circumstance. People don’t load their plates with choice morsels before everyone has had a chance at them. The pot luck is egalitarian, with special consideration gladly given to the very young, the very old, and all others with particular needs.

And as we eat we breathe air permeated by the signs and sounds of friends, family and community. We are reminded that food is a gift of the earth, shaped by human hands, molded by longstanding cultural preferences. We are linked to sun and moon and stars by the rhythmic ripenings they dictate and reflect. Berries in their season, root vegetables in theirs. The time of the greens, of the wild rice, of the maize and the squash.

The meal is more than the sum of its parts, as is the community. The sharing of food, that link between the land and the stomach, between nature and culture, renews, reaffirms, and renegotiates social and economic relationships through participation. That’s why a famous religious figure had a Last Supper, not a Last Staff Meeting, and that is why it is remembered.

From each according to ability, time and skill. To each according to need. A redistributive celebration that balances differences without obliterating them, and absorbs and transforms want and plenty. There is no accumulation of wealth beyond stomach contents. Those who stay to clean up distribute any leftovers.

Whole cultures have run on the Pot Luck Principle, sustainably, for milenia, until certain invaders came and insisted that Society should submit to Economy, instead of the reverse. If we are to wrestle Economy back into its proper position as subordinate to Society, we’re going to have to remember the lessons of Stone Soup and its kin Pot Luck.

Now, what if you used a pot luck — this egalitarian, community-based gathering that fulfills a biological need in a social way, — what if you used this gathering as an opportunity to make social decisions about your community?

Hearing from everyone in-between mouthfuls (or platefuls, as the case may be.) Sharing ideas and opinions as they share beans and greens.

What if you used this gathering, this crossing of paths, this breaking of bread together — as an occasion to make economic decisions as well as social ones?

If you did that, we’d call it the monthly Madison Hours Pot Luck.

We’d call it a lot of fun.

We’d call it participatory democracy.

I’ll drink to that.

Speaking Truth To Power About Campaign Reform (1998)

By Jane Anne Morris

This article was written around the time Maine and a few other states were considering “campaign finance reform” laws. The historical perspective, even in the aftermath of the Citizens United case, shows us how little has changed. Many of these issues have been discussed by Maine labor activist Peter Kellman, author of Building Unions: Past, Present and Future.

Introduction

The word “reform” has lost some of its luster lately. Remember regulatory “reform”? Health care “reform”? And then welfare “reform”?

As we stand today, up to our armpits in schemes for campaign finance “reform,” we need to make sure that our proposals are grounded in principles that we at least recognize. All the better if they are explicitly democratic.

A bit of history will provide some perspective on how “campaign finance reform” efforts came to assume their current form.

A generation ago public disgust at the way elections were run reached one of its periodic peaks.

That last big wave of “campaign finance reform” was set into motion by corruption at CREEP (the Committee to Re-Elect the President) during the Nixon Years. Responding to a public outcry, Congress passed the Federal Election Campaign Act (1971; amended 1974).

What washed ashore shortly thereafter were corporate PACs (political action committees) and the now-legendary Buckley v. Valeo (hereafter, Valeo) Supreme Court decision (1976). Conditions being optimal, the scum left behind at reform’s high water mark has ripened into the sleaze that is now rotting all around us.

Even more disturbing than the failure of the Watergate-era “reforms” to restore some sense of decency to our election process, is the growing evidence that we have learned very little in the last quarter century. What is the sense of making a mistake if you’re just going to repeat it?

Our democracy is going down the tubes and we are avidly arguing about precisely what formula corporate managers and the very wealthy must use to funnel millions of dollars to targeted candidates.

While corporate speech saturates the supposedly “public” airwaves, we’re debating about whether or not we dare to restrict independent expenditures. Nay, we’re debating about how to even define independent expenditures.

Meanwhile, we’re not confronting issues such as…

  • Is money speech?
  • Should a transnational corporation have the same rights as a human person to participate in the democratic process?
  • If this is a democracy then shouldn’t all citizens, regardless of their economic status, be equally able to run for office?

It may be another generation before as much momentum and outrage is again built up around this issue. It would be nice to leave a more democratic heritage than the seventies left us in the form of the FEC Act and the Valeo decision. That is possible only if we first understand the assumptions gently but insidiously folded in the FEC-Valeo package, now the “law of the land.”

Money and Speech

First, the issue of viewing money as a form of speech.

If you start out with “separate but equal,” you end up counting drinking fountains to measure equality. Today, starting with “money is speech,” we are doing little more than counting dollars to measure democracy. We’ve missed the point.

How did we come to such a state that we can talk about free speech only by talking about money?

The money equals speech equation derives from the Supreme Court’s 1976 Valeo decision. In a nutshell, in that decision the Court held that as far as campaign expenditures were concerned, money is speech. Therefore limits on expenditures were limits on free speech, which is a constitutional no-no unless “compelling” circumstances are demonstrated.

To complicate the picture further, the Court in Valeo also ruled that though spending money is free speech and cannot be limited (as the original FEC Act provided), donating money is a slightly different kind of free speech that can be limited.

So, while demand (expenditures) was unlimited, supply (contributions) was limited, thus creating a perfect setting for a search for creative “bundling” of contributions, the opening up of numerous “conduits” for funds, the use of “independent” expenditures, and the proliferation of other kinds of “soft money”(unregulated expenditures). And that is what happened.

The near unanimity of opinion concurring that money equals speech is striking. From Valeo:

“One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign.” (J. Marshall, p. 288)

“[V]irtually all meaningful political communications in the modern setting involve the expenditure of money” (p. 11)

“[C]ontributions and expenditures are at the very core of political speech” By Appellants, 424 U.S. 15, Valeo

“[V]irtually every means of communicating ideas in today’s mass society requires the expenditure of money” (p. 19)

This assumption is echoed in today’s debate.

“Money in politics is not evil. It would be impossible to have good democracy without paying for candidates to talk with voters…”1

“Nobody is proposing to take money out of politics….The reform debate is about how to regulate the flow of money, not shut it off.”2

It was not always so.

In the early days of the First Amendment in this republic, all information and discussion was either by word of mouth — “live” — or by means of reading the printed word. Informal talks, handbills, newspapers, and songs were all part of the public debate. Much later, the air waves — radio and television — became available as media for communication.

Other changes occurred as well. The open market place at the crossroads was replaced by the shopping mall. Time once spent in public areas exchanging news and views is now spent in front of the blue glow of the television set. The meaning of free speech rights has been altered correspondingly. The First Amendment rights of human persons have been progressively restricted, primarily through a steady expansion of the concept of private property rights and an ever-growing laundry list of what the government may prohibit by sweeping it into the category of “public safety” laws.

What this means in practical terms is that a human person’s free speech rights are severely restricted in the workplace, at the shopping center, and on the street corner. But in these same contexts, First Amendment rights of corporate “persons,” as interpreted by the courts, are almost limitless. So as we human persons work and shop, we are bombarded by corporate “free speech” but may not exercise our own First Amendment rights much beyond asking where the bathroom is or what something costs.

From here on out the magic works by itself. You need money to be heard in the only places that matter; corporations have both First Amendment rights and ample funds; hence, only their views are heard. But any “person” (that means you the reader, or a transnational corporation) is equally free to take out a full-page advertisement in the New York Times, or buy a minute of air time for a half a million bucks.

There is a further twist. The air waves supposedly belong to the public, but our federal regulatory quagmire has leased them to private corporations for a song. These media corporations use them to make huge profits, partly by selling the public’s own air waves back to them through public financing of campaigns.

Free civic forums where people can speak truth and debate ideas without fear of harassment are almost nonexistent. Potential forums that remain (like the news media, malls and workplaces) are “private” property where free speech by human persons is either forbidden, severely limited, or costs money.

If the only way to speak freely and be heard is to pay the powerful for a forum, then speech is not free.

Corporations and First Amendment Rights

Now to the second issue that we are not debating: Should a corporation have the same rights as a human person to participate in the democratic process?

The absence of this issue from the current debate is disturbing. When we neglect to even question whether corporations should have the Constitutional rights of human persons, we are drifting far afield from any real sense of democracy.

The word democracy, it should not need to be pointed out, means rule by the people: self-rule, self-governance. It is one of the shameful aspects of our history that it took great ferment to establish (at least theoretically) that people means all human beings, and not just the wealthy white males who framed the Constitution. How is it then that corporations have for a century possessed the core Constitutional rights of natural persons? Shouldn’t we debate this, or at least mention it, before embedding corporations even more deeply in our political process?

The FEC Act, like most discussions of “campaign finance reform,” does not distinguish between the rights of natural persons (legal parlance for human beings) and other entities such as corporations and committees.

How can we fail to distinguish people from corporations in laws about the democratic process itself? Our laws distinguish species of birds from each other; we have separate laws for all manner of fish and reptiles. Trees in your yard, trees on federal land, trees along rivers, and trees whose corporate “owners” are involved in leveraged buyouts of other corporations fall into different legal categories. But we lump people and corporations together as Constitutional “persons.”

People didn’t always think that corporations were entitled to Constitutional rights. Since the late nineteenth century the nine robed ones have been handing corporations many of the protections guaranteed to “persons” by the U.S. Constitution. But it wasn’t until the “reforms” of the 1970s that the idea that corporations had free speech “rights” began to be widely accepted.

If corporations have such Constitutional rights, perhaps they ought to vote and have their own named representatives in the halls of Congress. “The Chair recognizes the Senator from Union Carbide Corporation….from WMX Corporation….from the British East India Company……” and so on.

Democracy is not a matter of people negotiating with a corporation management team, or with an administrative board, or with a king. It is a matter of people talking with each other and deciding what their community, society and economy should look like. We should do it more often.

Imagine a law that prohibited corporations from engaging in any form of political activity. Imagine that breaking such a law was a felony, and that a corporation could be dissolved or kicked out of a state for disobeying it.

Wisconsin had such a law from 1905 until 1953. Check out this language. (Wis. Laws, Section 4479a. [Sec. 1, ch. 492, 1905]).

No corporation doing business in this state, shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.

The law was still on the books, with lessened penalties, until the early 1970s when the new improved FEC Act took effect.

It was not so long ago that corporations were not viewed as appropriate participants in elections. Democracy and free speech were for humans. Dare we think that way again? If we don’t speak truth to power about free speech, what grounds have we for democracy?

Who Should Be Able To Run?

And now the third issue that we seem unwilling to raise: If this is a democracy then shouldn’t all citizens, regardless of their economic status, be equally able to run for office?

Today, even with some “public funding” of campaigns, perhaps 80% of the population cannot even consider running for office. That we accept this as “normal” is a stinging indictment of how low our standards for measuring democracy have fallen.

Not surprisingly, most of the reasons why only a small percentage of Americans can even dream of running for office revolve around money. Who can take time off from work to campaign? Who is assured that after a campaign, or a term served, that they can return to a job? How many public offices provide only a token salary, thereby limiting those who can serve to the independently wealthy?

If we want free and fair elections, and not just campaign finance reform, we are going to have to think about and debate these issues.

Today’s Debate: Enter Maine

Against this historical and conceptual backdrop we can view current reform efforts through a distant mirror.

The recent upsurge of interest in what’s being termed “campaign finance reform” reflects people’s growing awareness that big corporations dominate our political process, and with it our economic and social lives. Corporations sip in our cup, they dip in our dish, they sit by our fire.3

If you said this only a few years ago, people called you a conspiracy theorist. Now they say either, “So what else is new?” or, “But there’s nothing we can do about it.”

All over the nation, people are trying to do something about it. Their efforts are termed “campaign finance reform” and many are hailing Maine’s new election law (the Maine Elections Act, passed by initiative in November 1996) as the pot of gold at the end of the campaign finance reform rainbow.

A cursory review of news clippings and editorials about the Maine Act speak of it as a “model,” as a “standard against which all other reform efforts are judged.” It is “far-reaching;” it is “revolutionary.” It “addresses nearly every problem that exists in the campaign world.” One commentator noted that the people of Maine had “reached for the stars.” Another stated flatly, “Maine is the future…We have to figure out how to do Maine everywhere.”

One would expect that such an initiative would represent a fearful threat to entrenched corporations in Maine, and nationwide. One would expect that such an initiative would be fought tooth and nail by the same powerful corporations that launched a successful media barrage to crush the anti-clearcutting initiative on the same ballot.

Instead, it was a real ho-hummer. There was no organized opposition to the Maine “campaign finance reform” initiative. According to Maine labor activist Peter Kellman, who followed the campaign closely and voted for the initiative in November, the only visible opposition was from the American Civil Liberties Union (ACLU).

(The ACLU evidently has embraced the money equals speech doctrine, and accepted the extension of Constitutional rights to corporate “persons.” Corporate donations and expenditures for political purposes thus appear as “free speech” issues.)

This great gaping corporate silence — remember how they handled Clinton’s “radical” health care plan — should be an alarm bell for us. Pretend you’re a CEO and see if you feel threatened by the Maine Act’s provisions.

The Maine Act was intentionally drafted to avoid challenging the Valeo decision.

  • It accepts the equation money equals speech.
  • It accepts the equivalence of human beings and corporations for most legal purposes relating to the mechanisms of democracy.
  • It does not address most of the obstacles preventing most people from running for office. That is, it’s not about democracy, it’s about money. As to how it would affect current campaigns, consider these points.
  • It does not prevent a wealthy candidate from using family or personal wealth to outspend a publicly financed opponent ten-to-one, or a thousand-to-one.
  • It does not prevent a corporation from setting up scores or thousands of PACs (political action committees) each of which can collect the maximum amount of money for a candidate.
  • It does not prevent dozens or hundreds of “independent” individuals or groups from spending unlimited amounts of money advocating a particular candidate or position.

The Maine Act is not only not about democracy, it’s not very much about money, as many so-called current “abuses” will continue.

What the Maine Act does do, however, under the guise of “public financing,” is to set up a system that collects money from the many, passes it quickly through the hands of the hopeful (candidates), into the coffers of the few (media corporations). Misleadingly termed “public financing,” this scheme is a redistribution of wealth in which we the people pay huge media corporations to allow us limited use of the airwaves we own.

For such a non-solution, scores of citizen organizations around the U.S. are receiving financial infusions from philanthropic foundations to pursue measures much like the Maine Act.

Many proponents of such “reform” admit that it’s “not perfect,” but assert that it’s the best we can do at this time. This “best” amounts to accepting the Valeo and FEC Act assumptions as the natural order of things. We say with a sigh….We live in an imperfect world. For reasons of money, only a small proportion of us can even think of running for office. Among those privileged few, campaigns are corrupt by any measure. But, we the people are severely limited in what we can do about it because of the Constitution. The best we can do is to limit money in campaigns enough to temper the corruption to tolerable levels but we certainly can’t do anything to chill corporate free speech.

The 1970s electoral “reforms” did not usher in an era of clean and open democratic elections by any means. It follows, then, that if we do want to work toward such a goal, we need to do something different.

If we expect to get beyond the tinkering stage in dealing with the campaign reform issue, we will have to face each of these three issues.

  • People can recognize and reject the profoundly anti-democratic equation of money and speech, and identify the root causes that make it seem to be “natural.”
  • People can reject the notion that persons and corporations are somehow legal or Constitutional equivalents, and that corporations have “rights” at all, other than those limited capacities specifically delegated to them by the sovereign people.
  • People can debate not campaign “finance” but campaigns themselves, and decide how we the people want to hold our elections and make public policy decisions.

Re-framing the Debate

A debate that confronts the fundamental issues underlying current proposals for “campaign finance reform” would begin by recognizing that we need wholesale election reform, not just campaign “finance” reform.

The authors of the Valeo decision stated that

“[I]n the free society ordained by our Constitution, it is not the government but the people …..who must retain control over the quantity and range of debate on public issues in a political campaign.” (p. 56)

If they meant all people, and not just the self-styled elites in power at the moment, we can agree with them.

If they meant human persons, and not corporate “persons”, then we can agree with them.

What we’re seeking here isn’t changing the laws of gravity or finding the fountain of youth. It’s self-governance, by all of the people. It is self-governance, in a context of the free flow of ideas and information, sparked by debate and discussion. And it is fairness — plain, ordinary garden-variety fairness, something that any child can detect.

We seek the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” (Valeo court quoting NYT v. Sullivan, quoting Assoc. Press v. U.S. (1945)) Obviously this is not possible where corporations dominate the election process and election opportunities are not equal for all.

Chances are that we won’t achieve this goal by next year’s elections, but if we can’t even imagine it, we’ll never achieve it. The word campaign comes from the word for open, level field, and that’s what we’re after.

We can start with six basic democratic principles.

  1. Free speech is a prerequisite for democracy.
  2. Money is not speech.

    Participation in the democratic process should not in any way or to any degree be dependent on money. (Note: There is a move afoot to reverse the Valeo decision, but on grounds of “compelling” government interest, as opposed to a refutation of the money = speech equation.)

  3. Natural persons (citizens – the demos of democracy) should be distinguished from corporations in all laws regarding the political process.

    Since democracy is about people, corporations should not have First Amendment rights. (Note: In view of the fact that the legal term corporation covers municipalities, many environmental groups, media corporations, corporate trade associations, some Native American tribes, some unions, and transnational corporations, among other entities, obviously some fine-tuning is needed here. But there are ways of handling this issue so as to avoid jeopardizing the First Amendment rights of human persons to associate.)

  4. Public forums (such as the air waves, our newspapers and magazines, our workplaces, malls and streetcorners) should be free from corporate control.
  5. Election provisions should be mandatory and apply to all.

    “Voluntary” programs should be avoided because they allow rich candidates to buy their way out of conditions imposed on lower and middle income candidates. (We can call it the Perot-Forbes Syndrome.)

  6. Under no circumstances should public money be paid to media corporations for use of the air waves that we already own.

Measures to apply these principles might include the following.

  • Prohibit all paid political advertisements on radio and television.
  • Use the public airwaves for debate and discussion of candidates, issues, and concerns. Don’t ask, tell. Corporations are legal fictions granted special powers in order to serve a public need. Corporations that fail to comply shall have their corporate charters or certificates of authority revoked.
  • Do not require monetary contributions to qualify a candidate for public financing or an issue to appear on a ballot. Signatures are enough. Current attempts to justify a dollar contribution to demonstrate “seriousness” or “commitment” parallel the arguments offered in previous eras in support of the poll tax, and the “property” requirements of 1789.
  • All newspapers, magazines, and other publications that are corporations — and therefore chartered to serve the public interest (as all corporations are) — shall devote (for example) 25% of their pages to political commentary from human persons, unedited and in the order received, during the (for instance) two months immediately preceding an election or referendum.
  • Workplaces, malls, and street corners should be made into free speech and free assembly zones. As a rule of thumb, any space where we “hear” corporate speech without asking for it should be a place where human persons can express their ideas freely, and have the right to hear others’ views, without fear of harassment or retribution.
  • Election opportunities should be the same for all, regardless of wealth. Provisons for time off during campaigns, the guarantee of a job to return to after an election or a term served, and a living wage for both candidates and elected officials will help remove the built-in advantages that now exist for wealthy persons who run for political office.

We are a long way from the “unfettered interchange of ideas” described as desirable in the Valeo decision. There is much to discuss, debate, work out, and experiment with. But if we fail on our first try, or succeed only partially, it will be because we spoke truth to power, and not because we worked only for measures that were “achievable” but changed little.

**************

“Speaking Truth to Power About Campaign Reform” (1998). Also printed in Defying Corporations, Defining Democracy.

Notes

Democracy Theme Park – An Introduction

So you want to change the world? That’s great. So do I. In fact, I’ve been working on trying to change things, from stopping lignite strip mining in Texas to creating urban gardens in Madison, Wisconsin, for the past forty years.

Along the way, I’ve seen campaigns to change this or that swept into what I’ve come to call the Democracy Theme Park. There, we find ourselves going nowhere fast on rides that style themselves as processes for change, but which actually distract us from more direct ways of insuring that government and corporations serve the public. For instance, there is the Regulatory Agency Roller Coaster — a ride where, after years of testimony and hearings, we get a few hay bales added around the fence at the edge of the toxic waste dump. We think we’re getting things done, but in fact, it’s just busy work. We’re merely playing. We’re in bumper cars.
Continue reading “Democracy Theme Park – An Introduction”