Put the Demos Back Into Democracy

There are two kinds of activist groups, equally (in)effective. Which are you? And why?

Pop-up activists tend their topiary and anguish over bathroom fixtures until… a Big Bad Issue pops up and invigorates them.

Permanent Waves — the second kind of activist group — inhabit longstanding, institutionalized power zip codes nestled among other shrubbery in the nonprofit landscape.
Continue reading “Put the Demos Back Into Democracy”

Decommissioning Corporate “Magic”

Would you like to neutralize corporations’ ability to get so many GOOD laws declared unconstitutional? There’s an “app” for that—-an approach, that is.

Seriously, do you really think it’s unconstitutional to require labels on GMO food? Or to prohibit a dangerous and ecologically harmful activity like fracking? What kind of a screwy constitution are we talking about here?

What if the Martians (or Plutonians) landed and asked why we permitted a gigantic CAFO to produce inferior food while threatening aquifers, ecosystems, community, and quality of life? Not to mention, underselling and disadvantaging local organic food producers. Would we say, yeah, it’s a bummer but we have this sacred document called the Constitution and it says we, uh, have to allow this?

I use the word “magic” (as in corporate magic) advisedly. Magic is misdirection plus mechanics. Almost always, the misdirection (“Watch my right hand carefully, now…”) is more critical than the mechanics. (Dexterity is a matter of practice: just watch bulbous-fingered men playing mandolin or tweeting.) The same is true about how corporations get laws they don’t like voided by courts.

Obviously, in order to counter magic you have to understand it.

First, the Mechanics

Over many decades, corporate lawyers convinced judges that corporations are protected by the Constitution against government action. (A portion, but not all, of these protections comes via so-called “corporate personhood.”) After a high court confirmed these judicial interpretations, legislatures incorporated the changes into law. (This is still going on today, but the groundwork was laid long ago.)

Result: The Constitution both created a government, and set up provisions to protect people from oppressive government. Then the government (state governments, mostly) created corporations as its agents. These corporate agents, really extensions of government, then began claiming that they were more like human persons than creatures of the state, and therefore deserved protection against the government that created them. (If you feel dizzy, you’re getting it. The topology of the situation is a snake shaped like a Mobius strip eating its tail.)

In a nutshell: A corporation (set up by a government professing to act on behalf of the people) claims the protections of people against government, and wields the power of government against people. This is having your cake and eating it too.

Once even a single corporation wins recognition of an expanded constitutional protection, that protection then extends to ALL corporations. They don’t even have to send each other memos.

Quickie example: A county believes a certain business corporation (BadCorp) is reprehensible in its methods, labor policies, and general environmental practices, so it passes a law banning that corporation from doing business within its jurisdiction. (For an example, read up on the anti-chain store laws of the early 20th century. Check page 61 of my book.) BadCorp files a lawsuit claiming that its 14th Amendment constitutional right to equal protection is violated, because other similar corporations are not banned, while BadCorp is singled out. In other words, BadCorp was discriminated against. (I kid you not, this is the language used.) After that (and this started in the late 19th century), all the other corporations went whining to federal courts to claim that they were discriminated against, too. As a result, this and other corporate constitutional protections accreted over the years have made it next to impossible to pass legislation with real effect to control corporations.

That’s the mechanics part. I’ve been writing about it for two decades, and there’s a solid century-and-a-half of legal scholarship on it. But regular people don’t read that, either because it sounds too intimidating or boring, or because…corporate misdirection has deflected their attention.

Now, At Stage Right, the Misdirection

You can almost smell the incense. Mental lights dim, somber susurrus caress the syllables…Con-sti-tuuuu-tion…as we enter the Sacred Text Zone. Imagine that urine-colored parchment with the nearly unreadable loopy script on it. Probably behind glass. With a security guard nearby. Most people are not exactly sure what all’s in it, but they are hesitant to violate it.

Instead of “Keep your eye on my right hand…” the misdirection here begins with people in dark, voluminous robes intoning the word “unconstitutional.” The first misdirection is that even the suggestion that something is unconstitutional makes many people back off (and stop looking into it).

It gets worse, because the misdirection implies that the Constitution itself actually says that corporations have rights (mostly from the Bill of Rights), and protections from other clauses scattered throughout the document. IT DOESNT. Just read it. (Or some of my short vignettes illustrating the point).

The notion that corporations have constitutional protections comes not from the Constitution but from judicial decisions made since the early 19th century. The judges that made these decisions, almost without exception, were wealthy white men with considerable property. Most also had experience working for the railroads, banks, and other dominant corporations of their day.(See pages 76-77 in my book.)

Misdirection Plus Mechanics Equals…

While misdirection makes people afraid to question the Constitution, and unaware that such protections come not from the Constitution but from increasingly free-ranging judicial interpretations (often called judge-made law), activists and other citizens tend to disattend the mechanics of constitutional protections for the legal fiction of the corporation. Which are right out there, in black and white, as plain as that rabbit in the hat.

Here’s the App!
Decommissioning Corporate Magic: The App(roach)

Remove, by passing laws, the handful of corporate protections that corporations have used to neutralize literally tens of thousands of excellent pieces of legislation.

Before your eyes glaze over, consider this. Look up from your screen. People who can install and use numerous apps on complex electronic devices that blink, beep, thump, vibrate and arpeggio at us from all compass directions—are without doubt capable of understanding the points of constitutional law (there, I said it) that keep corporations for the most part out of reach of citizen legislation.

Hundreds of local communities have tried it already, and are making real progress. Visit one or two, to see how that app(roach) works.

KNOWLEDGE IS POWER! (THE STRATEGY-OPTIONAL APPROACH)

Wow, I feel more powerful already.

Because I know that toxin-laced microscopic plastic beads from toothpaste and other cosmetics have been sluiced into our waterways and ingested by fish and other marine animals in the lower Great Lakes.

I also know that frac sand mining and processing spews fine particulate silica sand into the air and blasts nasty chemicals into dismembered and mutilated aquifers in Wisconsin, where I live.

My power surges. I almost can’t contain it all.

(Insert your favorite examples here.)

What should we do with all this power? Write a letter to the FDA with its spectacular record of failure to regulate bad substances in a timely manner, coupled with attempts to prohibit or discourage the use of commonplace inexpensive remedies whose major flaw is that they do not massively increase the profits of big pharmaceutical corporations?

Or, maybe I should go to a fracking hearing at the DNR, the main point of which is to advertise that a) the DNR has no intention of seriously regulating such operations, and b) affected local communities lack power under state law to pass strict protective ordinances?

Our conferences, lectures, workshops, and study groups Describing the Problem are as numerous as the bison that once thundered the Plains. Our books, slide shows and folk songs Describing the Problem are as numberless as the passenger pigeons that once blackened the skies.

If there are limits to our drive to accumulate knowledge to Describe the Problem, we haven’t reached them yet. We leave no grain of sand unturned, no Antarctic ice crystal unanalyzed, no clitoridectomy unlamented, no habitat loss unmourned, no slain journalist unlisted, no refugee camp unenumerated, no polar bear hair unsectioned, no deformed frog undissected, no terawatt-hour of electricity unmeasured, no torture technique uncatalogued, no larva unprobed….Oops, I’ve fallen into Describing the Problem again.

Uh, does this mean that with all this knowledge we are like, really powerful?

Oh, all that knowledge we collect, collate, calculate, caress, characterize, calibrate, cross-reference. (Sigh). I know it leads many people to succumb to denial and depression, but how exactly does this translate into power?

* * *

Knowledge is power—if there are ways to apply that knowledge to make constructive changes. Knowledge is not power if the underlying political framework spins off grass roots activism into unproductive eddies of procedural minutiae and judicial dead ends.

We need knowledge to wield power well, but that doesn’t mean that we don’t need strategy. Yet we are obsessed with increasing knowledge via Describing the Problem, while strategy languishes. And the “problem” we have today stretches across the spectrum from zoophyte extinction to ageism.

Disclosure: In my background lurks academia, writing, and explaining this or that problem to a variety of audiences. I have done extensive research including writing a book about a single constitutional clause, so it’s not that I don’t appreciate research and description. Knowledge must be part of what we do, but it’s not the goal or the answer, and it’s certainly not the strategy.

* * *

Some things you can do…

1. Stop Describing the Problem to people who agree with you and start talking to those who don’t.

2. Try diagnosing the problem instead of describing it. (Like, is the problem the corporation that is polluting or the government that allows this—in fact, hands out permits for it?)

3. Use all the time you free up to strategize about making the necessary changes. And don’t bother with the sleepwalking methods (toeing the line at regulatory agencies, whining at demonstrations….) that have failed, for, oh, forty or a hundred years.

4. Strategize about how to challenge…well, here’s a statement of the problem that I wrote about twenty years ago, and it still stands.

“Over a period of many generations, corporate lawyers, in drawing rooms, cloak rooms and court rooms, worked over our imperfect but promising democracy clause by clause. In all too many instances, when a law got in the way of corporate power, the corporations either got rid of it, weakened it, prevented it from being enforced, got it declared unconstitutional, or influenced the judicial interpretation of it so as to render it inconsequential.

While the rights of most human persons were denied or diminished, corporations acquired by sleight-of-hand constitutional rights of “natural” persons. These newly anointed corporate “persons” claimed and gained constitutional protections for their “property,” which was first construed to be something tangible, expanded to include the intangible and now includes the imaginary.”

Is that quote just Describing the Problem again? I think not: Rather, it is diagnosing the problem. And if we diagnose the problem as our government and the power it gives to corporations, we need to take a break from counting parts-per-million and dollars-per-candidate and strategize how to alter our underlying legal framework.

People have been working on such strategies for at least two decades, yet that work somehow isn’t as sexy as Describing the Problem.

So, could you spend a week without Describing the Problem, and turn instead to planning strategy ? Or maybe a month?

Strategy isn’t optional. To plagiarize and paraphrase (plagiaphase?) a famous dead white guy: The point is not to describe the world, but to change it.

Snowy equinox. 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.

Not exactly hilarious, but that was my first time. I had to make it up myself because I’ve never heard a regulatory agency joke. Which struck me as strange, because in the US we have priest-minister-rabbi jokes, screw-in-a-light-bulb jokes, race jokes, blind guy jokes, physicist-mathematician-engineer jokes, and lots of lawyer jokes. (Like the one about the lawyer and the pope who died at exactly the same moment…I guess that’s a lawyer joke and a religion joke at the same time. Hmm, and Purgatory is sort of like a regulatory agency.)

The more I thought about it the odder it seemed. We have lifeboat jokes, viola jokes, man-walks-into-a-bar jokes, parachute jokes, toilet jokes — but no regulatory agency jokes. I’m not talking here about good jokes, or jokes in good taste, or politically correct jokes, or even funny jokes — just jokes.

I was looking for a fresh way to criticize regulatory agencies. Or, maybe to understand why so many people can’t imagine a world without them.

Folklorists and sociologists are always analyzing recipes, urban myths, jump-rope rhymes, and jokes for clues about a society. It follows that not having jokes about a certain topic might also tell us something. I’ve never heard a joke with the punchline, “And so the doctor says: You’ve got breast cancer!” and everybody laughs.

I’m not sure what it means if there aren’t jokes about regulatory agencies or cancer. This could be a red herring, but you can’t be sure till the fat lady sings.

Regulatory agencies have long public records of being colossal failures.That’s rich material to mine. Some of the reasons for failures:

1. Regulatory agencies are political, so sometimes the FDA chief is going to be a former pharmaceuticals company executive, or the DNR alpha is going to be a realtor. (Joke material?)

2. They’re way underfunded, so enforcement is a joke (did I say that?); leap years come more often than inspections; and the backlog of unevaluated chemicals numbers…let’s just say, much more than your annual income in dollars.

3. Historically, Reg Ags are always “captured” by the industries they are supposed to be regulating.

All that is well documented over more than a century in the US. But I won’t go into it here because I don’t have any jokes about it. Speaking of which…World’s shortest Regulatory Agency joke: Kid goes into the school guidance counselor’s office. Says, “I want to be a hearing examiner.”

OK, back to the list. Saving the worst for the last, two more reasons why Reg Ags are such failures.

4. By combining legislative, executive, and judicial functions in one place, they frustrate democracy. (Key: as they were meant to do). They regulate citizens, not corporations.

5. Reg Ags were actually invented by corporations as a way to avoid state legislatures and local laws. You don’t believe it, do you? It has a high truthiness index: go here for the facts.

After all that preaching you get one more joke.

A lobbyist, a hearing examiner, and an Earth First!er are in an elevator. The lobbyist is wearing Savile Row, the hearing examiner is wearing Thrift Shop retro, and the Earth First!er is dressed up as a Karner Blue butterfly. They’re at EPA headquarters, heading for a hearing on the top floor, way, way up there. Suddenly, there’s a thump and they get a sinking feeling in the pits of their stomachs.

The Earth First!er yells: The cable’s broken, we’re falling! Help me find the emergency button to stop this thing!

The hearing examiner says: Thank-you for taking the time to come here today to share your views on this matter with us.

The Earth First!er yells again: You just don’t get it, do you? Help me stop this elevator NOW or we’ll all die!

The hearing examiner says: Well, it’s not quite as easy as you think. First of all, there are people who have spent their whole lives studying elevators and running elevator companies, and it would be imprudent to do anything without hearing their testimony.

Second, there are constitutional issues here. We have to hear the elevator company’s views because the Supreme Court has ruled that corporations are constitutional persons with First Amendment speech rights, plus rights to due process and equal protection before the law.

Then, the lobbyist butts in: The elevator company’s experts have already submitted persuasive testimony to the effect that we’re not falling at all, you are an alarmist, and if we even try to stop the elevator now, we would damage it, thereby harming the elevator corporation’s constitutionally protected private property and becoming liable for damages.

I hate to leave that so up in the air, but I got sort of bogged down on that joke, if you know what I mean. The lobbyist and the hearing examiner became compost, and a blue butterfly was seen fluttering away from the scene.

What the butterfly knew that many citizens groups still don’t, is that there is life and activism outside of regulatory agencies. It’s called local government, ordinances, legislation, referendums—and much of it goes under the name “community rights.” Here is an introduction.

Fat lady’s song: To answer the implied title question, Why aren’t there any jokes about regulatory agencies? Um, because they ARE a Joke?

Actually, there are Reg Ag jokes. But the ruse that there aren’t got you to the end of this blog post, didn’t it? Thanks.

Until next time. jam

Let’s Get Smart About ALEC

Gather a bundle of your inkiest exclamation points to put at the end of the next sentence. An outfit called ALEC, funded by wealthy right-wing ideologues, has put together a collection of model laws that they like, and is trying to get legislatures to pass them! ! ! ! !

So what exactly is so shocking about this? That they have actually written up laws they’d like to see passed? That they are promoting them to like-minded legislators? That they have money? Really? (For an analysis of what we’re missing, go here.)

(For those of you who have been playing online solitaire for the last four years, ALEC, described as a “corporate bill mill,” stands for American Legislative Exchange Council, founded in 1973 as the Conservative Caucus of State Legislators).

Hey, there are as many model laws out there as there are articles “exposing” ALEC. Glance over this fun sampling, and then tell me why ALEC is so outrageous.

Apes & Electrification
The Animal Legal Defense Fund has a “Model Ordinance for Great Apes” as part of its Model Animal Protection Laws Collection. The Energy and Mining Sector Board of the World Bank puts out model laws that promote electrification.

Shellfish & Carry-On Musical Instruments
The Food and Drug Administration puts out a Shellfish Sanitation Model Ordinance. The American Federation of Musicians sought to get provisions of a model law about carrying musical instruments on commercial airlines incorporated into a modernized Federal Aviation Administration Act.

Guns, Adoption, Anatomical Gifts & Organ Transplants
The Johns Hopkins Center for Gun Policy and Research put out a Model Handgun Safety Act. The US Uniform Law Commission puts out lots of model laws such as the Uniform Adoption Act and the Anatomical Gift Act, the latter supported by “many organ, eye, and tissue procurement organizations.” The Organ Procurement and Transplantation Network offered the National Organ Transplant Act.

Service Dogs & Solar Energy
Assistance Dogs International has an Assistance Dog Model State Law. Solar America Board has offered a Model Statute/Ordinance To Encourage Access to Solar Energy.

Work Zone Safety & Model Model Law
The National Committee on Uniform Traffic Laws and Ordinances puts out model laws on work zone safety. There is even a model law for models from the Model Alliance, an organization that focuses on fashion model rights. Concerns include child models dropping out of high school, and being pressured for sex by photographers.

Lots of groups and institutions are organized and focused enough to write up and put out model laws, at the local, state, federal, and international levels. (Go here for an example of how to do this “at home.”)

Some work quietly, while others launch major PR campaigns. These model law groups are likely to be funded by, if not started up by, people who stand to benefit or believe they will benefit from the laws they propose.

Many states, and the US, have passed outstanding “green” or “progressive” laws in the past. See my book Gaveling Down the Rabble, or an article about a “green” future, or an article about good state laws, or an article about laws to protect meat quality.

Unfortunately, many of these laws have been declared unconstitutional because of corporate constitutional protections. For an insight into this phenomenon, go here.

So, let’s get smart about ALEC.

1. Get over it. What is accomplished by protracted hand-wringing on how evil ALEC is? Describing the problem is only helpful if you’re talking to people who don’t think there’s a problem.

2. Acknowlege that ALEC has done a great job, especially by keeping a list of model laws on hand for when they may be able to pass them. ALEC is prepared.

3. Learn about ALEC. ALEC gets its power from the government. Specifically, the Illinois law under which ALEC incorporated in the mid-1970s, and the 501(c)(3) portion of the US statutes IRS code. Have you ever read or tried to change either one?

4. Write your own goddam model law. If you’ve got a problem with ALEC, rewrite the law under which it was incorporated to better suit democratic ideals. State laws are out there, and I don’t see a lot of left-of-center groups even reading them, much less rewriting them. Right now, state incorporation statutes are modified every session, as corporate lobbyists march in, hand in their “improvements,” and stand by while legislators pass them. The American Bar Association puts out a Model Business Incorporation Act. Do you have one? (Go here for an example of some great provisions that used to be part of corporate law.)

5. Some good model laws. Here are two recent ones that you might consider emulating, adapting them to your own local issues. It’s part of what is often called the “community rights” movement.

COLORADO COMMUNITY RIGHTS NETWORK
HISTORY OF ENVISION SPOKANE

Ever walk into a representative’s or council person’s office with a proposed law in hand? It’s a good feeling. Put it on your 2015 New Year’s Resolutions list.

See you around Ground Hog’s day. jam

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.

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

Notes