Wrinkle in Ancient Corporate Code Reveals Democracy Remedy (Not for the faint of heart)

Crumbling pages in the rare books room of the Wisconsin State Law Library may hold the key to breaking the corporate stranglehold on the democratic promise so long dormant in the heartland.

I’ve read those pages in that cool, dim room. But you can find the same info in the well-thumbed regular stacks that are only medium-rare. What is rare is for anyone but a historian or lawyer to read them. (Hint).

(Rather than having you read this, I’d like you to go here, but you’re probably not ready yet.)

“Incorporate in minutes: CHEAP, EASY, FAST.” Have you seen those ads? Why is it easier to incorporate than to register to vote, get a driver’s license, or maybe even order a pizza?

Try your luck with this multiple-choice question.

Corporations get their vast power from
A. their brilliant, inventive, plucky, persistent, indefatigable founders’ work and insights
B. US military forces and domestic police protecting their property worldwide
C. a winking conspiracy among judges to invent extra powers for them in the margins of their decisions
D. the sheer popularity and market domination of their amazing products
E. state legislatures

E is the key. A-D all help, with A always overrated and C exaggerated, but state legislatures do the deed.

Those CHEAP, EASY, FAST steps that today allow you to incorporate have a profound impact. Incorporation carves out a handful of chips of power from the block of government sovereignty, and hands them over to corporations. Simply put, some of the power of government is transferred to a corporation. In other words, GOVERNMENT CREATES CORPORATIONS.

(If you’re still reading this, maybe now you’re ready to go here.)

Before incorporation, all you have is a bunch of people, ideas, and resources. AFTER INCORPORATION, you have a company clothed with powers and protections granted and enforced by the full force of government. Law enforcement, courts, agencies, the whole chalupa.

This changes everything. For example, if you’re upset about a corporation doing bad things, you should be even more upset with your government that has granted that corporation the power to do those things.

I heard that many times before I got it. And I only got it when I went to the law library and held in my hands the pages that wrought such transformation. (Ready to go here?)

In a law library, you can hold in your hands the law that a legislature passed to turn that bunch of people and ideas into a corporation with powers of government. They used to do it one at a time. As in, the Octothorp Corporation may raise this amount of money, construct such-and-such a facility, and mine dilithium crystals in these three counties.

That’s amazing enough, that you can literally read the document that breathed power into a corporation. Even more shocking for us today is that if that corporation messed up, didn’t follow legislative instructions, or exceeded powers granted, the same legislature could just pass another law (no judicial intervention needed, thank you very much) and repeal the charter, a process called charter revocation. (Are you ready to see the treasure map to finding a charter revocation?)

That charter revocation—you can also hold it in your hands. Something about seeing this “in the flesh,” as it were, changes the way you understand corporations. It is hypocritcal and inaccurate for lawmakers to intone the equivalent of, Gosh, those darn corporations are so powerful. When in fact every single one of their powers was granted by legislation, voted on by legislators. (And even if first granted by a court, those powers were later ratified in statutes).

So I want you to take two steps that aren’t on many agendas just now.

ONE—Get thee to a law library.

TWO—Realize that the target of citizen activism is not so much corporations (using powers overtly given to them by governments), but the governments themselves that have ratified such a wholesale transfer of power from the people to corporations.

That’s my pitch. I hope you’re ready to go here, to see a pamphlet-length layperson’s tour guide to a law library. Even if you never make it to the library, you’ll learn a thing or two by flipping through the tourist brochure. Perhaps, even enough to turn your attention from corporations to the governments that create and protect them.

Bon voyage, jam

Why There Aren’t Any Jokes About Regulatory Agencies

OK, here’s a joke about a regulatory agency, as told by the corporate manager of a big polluting factory.

He says…So, I’m in my office one day and the Man from EPA comes in and slams down a huge stack of papers, saying — You’ve got 22,221 violations, and you better do something about them by next Friday.

So I says, Oh yeah, and what if I don’t do anything about them by next Friday?

Well, says the Man from EPA, then you’ll have twenty-two thousand, two hundred and twenty-TWO violations.

Hah, hah. Continue reading “Why There Aren’t Any Jokes About Regulatory Agencies”

Groundhog Day for Obamacare: Back to the Supremes

Like small-town mayors across the nation on Groundhog Day, the Supreme Court will get to make the call on whether Obamacare casts a shadow.

The Affordable Care Act (ACA, aka Obamacare) is again on its way to the Court for further review, as they say in the NFL. Its future is on the line, but for completely different reasons than the first time in 2012. Continue readingGroundhog Day for Obamacare: Back to the Supremes”

Making a Federal Case Out of It

“Don’t make a federal case out of it.” I used the phrase countless times without understanding its origin. But it turns out it’s full right up to the post-hoc-ergo-propter-hoc with historical significance: lessons about corporations, democracy and local control–what you might call community rights.

Take the train-hits-cow cases. Railroads began a rapid expansion in the US in the 1830s and by 1870 spanned the continent. Farmers had livestock milling around before barbed wire was patented or common, and trains didn’t-wouldn’t-couldn’t always stop for the unfortunate domestic animal standing on the tracks.

Farmers wanted compensation for all the cows wasted by trains. They often got it, even from the big railroad corporations, if they went to state courts, which obviously understood the plight of farmers losing stock to the new Iron Horses.

Another big beef during the early railroad era was that glowing embers from wood-burning steam locomotives wafted off and set fire to farmers’ fields and barns. This barn burning was especially common before railroads began switching to coal in the 1860s. Again, farmers were often able to get compensation if they went to state courts.

Railroad corporations were not keen on paying for kilt cows or burnt barns if they could avoid it. They learned early on that they fared much better in federal courts. Ask a lawyer (Better Call Saul): federal court takes longer, costs more, is farther away, has more onerous procedures, and is harder to win in if you’re an amateur.

Make a federal case out of it: escape the locals and get into federal court. As opposed to traffic court, municipal court, county court or state court. The rules for getting into federal court have changed over time, and there’s no way to summarize them here. But one fairly sure way is to raise a constitutional question. Poring over the constitution looking for corporate handholds has long been a strategy for property seeking relief from local democracy. (My book Gaveling Down the Rabble is all about how it’s done with a single constitutional clause.)

Much of corporate law (and “rights,” and powers) comes out of cases about railroads because they were among the dominant corporations of the 19th century. The take-home message: corporations saw that local control was a threat to their power, but federal jurisdiction (courts, Congress, or the regulatory agencies) could be a ticket for privilege. (For some history, see this.)

A shallow or stylized sense of history can lead to misconceptions. Many people think that the Supreme Court (the feds) has been a stalwart defender of civil rights. Simply not true, and shamefully not true. (See the chapter on civil rights in Gaveling.) But the “federal case” idiom was common in the 1950s because of federal involvement (usually based on the constitution’s COMMERCE clause) in civil rights during those years.

The origin of the phrase seems to be somewhat earlier, in Jimmy Durante’s 1940s reference to the federal government’s use of tax evasion charges to justify going after bootleggers during the Depression. I don’t have any evidence that the phrase was used in the early railroad era, but it captures the essence of corporate efforts to escape protective state and local laws.

If I titled this post “Federalism is So Complex!” none of you would be reading this now. But it is complex, and critical to efforts to reinstate some semblance of local control in our communities. Here are another few relevant tidbits before I close this ramble.

* Federal courts had little to do in the early decades of this nation, but now hear cases on a huge spread of topics and issues. (Gaveling explores this in labor, civil rights, and environmental law, among others). Whether this is good or bad is not obvious.

* The US Congress—not the constitution—determines the powers of federal courts. See my “Look to Congress for Supreme Court Fix.”

* The question of the appropriate relationship between local and federal power involves, among many other things, whether a federal law should be a floor (a minimum standard that states may be stricter than), or a ceiling (a standard that must be met but cannot be exceeded by local laws).

Finally, let’s remember that “local control” is a double-edged sword. If we really believe in local control, we need to insure that it is DEMOCRATIC local control and not feudal party machines in action.

Next post will be about….let’s see, What the Phrase “From Here Till Next Tuesday” Can Tell Us About Corporations.

Happy 2015, jam

jam tip: A great source for train-hits-cow stories and other tales of early corporate constitutional predation is volume one of Morton Horwitz’s The Transformation of American Law (1977). NB: not for the faint of heart.

A Corporate Anthropologist Walks Into a Blog…

There are two kinds of corporate anthropologists. First, the kind that works for corporations and gets paid. I’m the other kind.

The first kind works for and with corporations to increase worker productivity, advise what color greeting card to send a Chinese executive, or figure out how to sell personal hygiene products to Mayan grandmothers. In school we used to call it how-to-sell-Coca-Cola-to-the-natives. A subset would be how to keep the natives from getting restless.

It often involves finding non-confrontational stealth “solutions” to management-defined problems. This would include designing lobby benches that can’t be slept on, or sandpaper-covered toilet seats to discourage secretaries with too much time on their hands from hiding in stalls reading bodice-rippers.

It would not include ways of preventing non-corporate geese from defecating around fountain-fed corporate ponds. (That would require a corporate ornithologist, I guess.)

The second kind of corporate anthropologist, the kind I am, uses anthropological methods to study corporations or corporate culture. The core anthropological research method is participant observation, which basically means living there, or if it’s a setting like a factory or school, working there or attending—hanging out in some way.

I’m a corporate anthropologist because my “tribe,” the one I studied, was a powerful quasi-public utility company. It was by following this utility through scores of permits and hearings, in nearly as many regulatory agencies and courts, that I got my training in regulatory agencies. My dissertation was over 700 pages long and contained thirteen appendices, partly because I feared a lawsuit.

This sort of thing is called “studying up” because unlike the historic anthropological project of sending someone from an empire to study oppressed people in the colonies (“studying down”), you have someone studying up at powerful people, groups, or institutions, often in their own society.

One of the reasons it’s not more popular is that there’s no money in it. In my own case, I was encouraged to study (down at) environmental groups or citizen activists instead of (up at) the Big Utility. Corporations and other powerful institutions have always been happy to fund studies that reveal the inner workings and weaknesses of groups that suffer from their practices.

Since the 1960s, UC-Berkeley anthropologist Laura Nader (yes, Ralph’s sister) has been encouraging students to “study up” at everything from regulatory commissions to dentist conventions. Her work was an inspiration and model for my own.

If you want to hear more about my utility tribe, you can read a sidebar on it here, or follow the links in “About JAM” to a biographical sketch on the Society of Midland Authors site.

So, a corporate anthropologist walks into a blog……says…. Happy Solstice, see you in 2015. jam

Is Citizens United Focus a Good Use of Our Time? (2014)

Such a comforting thought—that overturning a single court case can resolve some of society’s biggest problems. With Citizens United, the idea seems to be that huge strides could be made by reversing it, thereby “getting the money out of” elections. It’s our current version of the “silver bullet” myth of old.

Kind of like thinking that bee pollen will cure your cancer. Continue reading “Is Citizens United Focus a Good Use of Our Time? (2014)”

Ward Morehouse (1929-2012): A Remembrance

When I first met Ward Morehouse in May 1995 at a weekend “Rethinking the Corporation” retreat in Wisconsin’s “driftless” region—he considered Wisconsin his “old stompin’ ground”–he asked to see my just-published first book. Returning the book the next morning, he made a few trenchant remarks that left no doubt that he had read the whole thing.

Of course, I was flattered that an eminence grise would be interested in my work. Even more than that, I was not a little amazed that he had managed to do this despite actively taking part in the intense socializing that accompanied that hopeful gathering.

I didn’t agree with every call Ward made. But when I approached him with an issue, I knew that he would offer more than the impatient, strained, short silence that often passes for listening. He was pleased, not threatened, by new information and ideas. He never responded by intimating that of course he already knew that. You were in for a thoughtful intellectual exchange, leavened with wry humor and sprigs of insight. I never heard him make a self-serving comment.

Ward’s causes and projects were things he really believed in, not vehicles to carry him to celebrity activist status. Where others rushed to the limelight and basked therein, Ward hung back and let others take credit. Where others sought cheerleaders and acolytes, Ward sought colleagues. He nurtured people, and created opportunities for them to grow, explore, and develop. He was self-effacing, not self-promoting; a strategizer, not a schemer.

He let others, not always deserving, hitch a ride on his well-earned reputation for integrity and courage. If Ward had a fault, it was that he was sometimes unaware that others were using him, not only to promote themselves, but to do so in directions that would not meet Ward’s high ethical standards.

And by the way, anybody who knew Ward also knows that no one would have gotten away with calling him an eminence grise within his earshot. So Ward, if you are listening now—and you probably are—I’m taking advantage of your physical absence to call you the eminence grise that you will always be. You are well remembered, sorely missed, and fondly recalled.

Now, organize those angels.

 

Jane Anne Morris, September, 2012