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Editorial: How Will the Citizens United Decision Affect Sustainable Business?

Steve Puma | Tuesday January 26th, 2010 | 4 Comments
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From Building Unions by Peter Kellman, POCLAD

“The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” – Minority Opinion by Supreme Court Justices Ginsburg, Breyer and Sotomayor.

News outlets and the blogosphere are abuzz with reactions to Thursday’s Supreme Court decision that will allow corporations to fund political campaigns. The ruling, which overturns decades of legal precedent and legislation limiting the ability of corporations to influence the outcome of elections, may have broad implications for the political process in the U.S. News of the decision has drawn criticism from both the right and the left, many voicing the opinion that dramatically increased rights for corporations will significantly diminish the ability for individual citizens to have their voices heard.

In his weekly address, President Obama said, “I can’t think of anything more devastating to the public interest,” he said. “The last thing we need to do is hand more influence to the lobbyists in Washington or more power to the special interests to tip the outcome of elections.” Congressman Alan Grayson (FL) has already introduced legislation to combat the policy change. His “Save Our Democracy” Reform Package contains several strong measures, including a 500% excise tax on corporate contributions to political committees, and on corporate expenditures on political advocacy campaigns.

Although some claim that this most recent ruling will have only a limited effect on the political process, the decision certainly re-confirms the doctrine of granting constitutional rights, originally reserved for flesh-and-blood U.S. citizens, to corporate entities, which have held the dubious status of “legal persons” with rights since 1886, when another Supreme Court decision accorded it to them. This unexpected action by the Court re-opens the debate about about the wisdom of affording corporations such rights, and what effects this all has for sustainable business.

Profit over people and planet
Readers are likely familiar with the sustainability concept from which TriplePundit derives its name : the “Triple Bottom Line.” Instead of the traditional (single) “bottom line”, referring to business profits as the only real measure of business success, the Triple Bottom-Line measures a successful and sustainable business by three spheres of equal importance: People, Planet and Profit (the “three P’s”). One easy way to tell if a business is unsustainable is the extent to which one of the three P’s, profit, grossly outweighs the other two, in terms of importance and magnitude.

For quite some time now, most businesses have been unsustainable, and most corporations have been pursuing profit for their shareholders above everything else. But this is not simply the result of cultural bias, overly greedy CEOs, or an uninformed public. By allowing corporations the same constitutional rights as human beings, the courts have created a system under which profits must take precedence over people and planet.

The “suicide economy
In her presentation entitled The Democracy Crisis, Riki Ott, a marine biologist who fought Exxon after the Valdez oil spill, posits that our current form of governance is what she calls a “Corpocracy”, what some might call Corporatism, where unchecked corporate rights inevitably lead to a “suicide economy”, in which the destruction of environmental and social wealth causes huge profits to be made. She cites several examples: The Exxon Valdez oil spill (cleanup boosts Alaska’s GDP), Wars and disasters (boost national GDP), and healthcare (Sick people buy more healthcare, so more sick people equals greater GDP).

Equally protected pillage
In the article Corporatization: An Internal Clash of Civilizations , Ben Manski and John E. Peck write that, “Within the framework of U.S. constitutional law, in which personhood conveys fundamental protections against state action, the dubious doctrine of corporate personhood has allowed corporations to gain constitutional insulation from democratic control of corporate investment in key activities, including electioneering, lobbying, advertising, resource extraction, and manufacturing…. corporations have usurped the legal claim to personhood, while remaining free of the accompanying moral obligations or physical limitations of natural persons”

Because the Supreme Court has been slowly taking away the States’ power over corporations (put in place specifically because many of our founding fathers feared the potential abuse of unchecked corporate power) the situation keeps getting worse and worse. The following are just a few examples of protections that are currently the right of corporations, and their sustainability impacts, from the article “Corporate Personhood and the “Right” to Harm the Environment”:

  • Fourth Amendment, “The right of the people to be secure. . . against unreasonable searches and seizures. . .”
    “Under many circumstances, corporations have the right to “shut the door” on government inspectors who lack a search warrant. The resulting delay may be enough for a company to cover up signs of wrongdoing. Even if evidence is collected under a search warrant, there is no guarantee that it will hold up in court.”
  • The Fifth Amendment, “. . . nor shall any person. . .be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.”
    “Corporations have the right to challenge governmental actions that protect the environment by claiming they are “takings” of their property rights. Further, the government may be required to provide monetary compensation for any consequent reduction in property value, even intangible property value such as lost potential profits.” Corporations even have the right to “not speak”, so as to not incriminate themselves!
  • The 14th Amendment, . . . nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”
    “By using the cry of “equal protection” to open the courts to them, corporations can evade, if not overturn, regulations while conducting business as usual.”

And finally,

  • The First Amendment, “. . . no law. . . abridging the freedom of speech. . .”
    “The First Amendment right to free speech has been broadened by the courts to allow corporations to give campaign contributions, lobby legislators, run advertisements that support their interests, exercise the right not to speak, and paint their activities as ‘green.’ “

Given that the Supreme Court had previously established that corporations were persons due 14th Amendment rights, they really had no choice but to decide that corporate speech could not be restricted. To do otherwise would be to invalidate both the equal protections of the 14th Amendment and the guarantee to free speech of the FIrst Amendment. To truly solve this problem, the notion of corporate personhood must be turned back to its original definition, which allowed corporations simply to make contracts, own property, and to sue or be sued.

Power to the people
Americans must re-assert that Constitutional rights are the rights of living persons only, and do not apply to “legal fictions”. Americans must also re-establish the absolute rights of the States over Corporations, meaning that States could revoke corporate charters, levy differential taxes and revoke the right of corporations to have jury trials, saving years of litigation and untold millions of taxpayer dollars.

To conclude, I would like to point out what is perhaps the most appalling aspect of this entire topic. While individual civil rights, such as women’s and minority rights, were gained at the cost of many years, lives, hard work and sacrifice, corporate rights were gained simply through Federal court decisions, with no public debate whatsoever! Oddly enough, this prospect was foreseen by Thomas Jefferson, and, in 1821, and he was quoted as saying, “The Engine of consolidation will be the Federal judiciary; the two other branches the corrupting and corrupted instruments.”

I think it is about time that we stop proving Mr. Jefferson right.

(If you are interested in learning more about this topic, I highly recommend reading the linked articles, which provide many and detailed examples, much too lengthy to be included here.)

Resources:

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Steve Puma is a sustainability and technology consultant. He currently writes for 3p as well as on his personal blog, ThePumaBlog, about the intersection of sustainability, technology, innovation, and the future. Steve holds an MBA in Sustainable Management from Presidio Graduate School and a BA in Computer Science from Rutgers University. You can contact Steve through email or LinkedIn, or follow him on twitter.


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