Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It (32 page)

50
. American Petroleum Institute, “Progress Through Petroleum,”
http://www.classroom-energy.org/oil_natural_gas/progress_through_petroleum/index.html#
(accessed August 17, 2011).

51
. Ibid.

52
. Ibid.

53
. Center for Science in the Public Interest, “Corporate-School Partnerships Good for Profits, Not Kids,” September 25, 2002,
http://www.cspinet.org/new/200209252.
html (accessed July 22, 2011); Coca-Cola Company, “Mission, Vision & Values,” 2010,
http://www.thecoca-colacompany.com/ourcompany/mission_vision_values.html
(accessed July 22, 2011).

54
. U.S. Government Accountability Office, “For-Profit Colleges: Undercover Testing Finds Colleges Encouraged Fraud and Engaged in Deceptive and Questionable Marketing Practices,” August 4, 2010,
http://www.gao.gov/products/GAO-10-948T
(accessed July 22, 2011).

55
. Ibid.

56
. Ibid.

57
. Tom Harkin, “For-Profit College Investigation,”
Tom Harkin, Iowa’s Senator
(newsletter), n.d.,
http://harkin.senate.gov/forprofitcolleges.cfm
(accessed July 22, 2011).

58
. Ibid.

59
. Statement of Senator Tom Harkin, chairman of the Senate Committee on Health, Education, Labor, and Pensions, March 10, 2011.

60
. Tamar Lewin, “Hearing Sees Financial Success and Education Failures of For-Profit College,”
New York Times,
March 10, 2011,
http://www.nytimes.com/2011/03/11/education/11college.html
(accessed August 17, 2011).

61
. Ibid.

62
. Tamar Lewin, “Flurry of Data as Rules Near for Commercial Colleges,”
New York Times,
February 4, 2011,
http://www.nytimes.com/2011/02/04/education/04colleges.html?pagewanted=print Page
(accessed July 23, 2011).

1
. Victor Hugo,
Les Miserables: A Novel,
trans. Charles Wilbour (New York: Carelton, 1862), p. 95.

2
.
Citizens United,
24.

3
.
First National Bank of Boston
v.
Bellotti,
435 U.S. 765, 777 (1978).

4
.
Consolidated Edison Co. of New York
v.
Public Service Commission of New York,
447 U.S. 530, 540 (1980). Justice Rehnquist joined Justice Blackmun in dissent: “Because of Consolidated Edison’s monopoly status and its rate structure, the use of the [informational] insert [in the utility bills] amounts to an exaction from the utility’s customers by way of forced aid for the utility’s speech.” [549]

5
.
Central Hudson Gas & Electric Corp.
v.
Public Service Commission of New York,
447 U.S. 557, 570 (1980). It took Justice Rehnquist in dissent to make clear that a “public utility is a state-created monopoly,” and the Court failed to recognize that the state law is most accurately viewed as an economic regulation,” not a “speech” restriction.

6
.
Lorillard
v.
Reilly,
53 U.S. 525 (2001) (Thomas, concurring). By contrast, Justice O’Connor’s opinion of the Court described the cigarette manufacturers by straightforward reference to their corporate names.

7
. Coors and its controlling family were active for many years in building the corporate rights offensive. In the 1970s, not long after the Powell memo to the Chamber of Commerce, Joseph Coors, the Coors Charitable Foundation, and eighty-seven corporations helped start and fund an organization called the Heritage Foundation.

8
.
Rubin
v.
Coors Brewing Co.,
514 U.S. 476, 479 (1995). “Respondent” refers to the party that won the case in the federal court below the Supreme Court and is “responding” to the other party’s appeal.

9
. “A corporation is a legal entity created through the laws of its state of incorporation.” Cornell University Law School, Legal Information Institute, “Corporations: An
Overview,” n.d.,
http://topics.law.cornell.edu/wex/Corporations
(accessed July 23, 2011).

10
. Harry G. Henn and John R. Alexander,
Law of Corporations,
3rd ed. (Saint Paul, Minn.: West, 1991).

11
. Kent Greenfield,
The Failure of Corporate Law
(Chicago: University of Chicago Press, 2006), pp. 30-33. Greenfield reviews and demolishes the claims of those who characterize corporations as the natural product of private contract and who discount the public interest in the corporation.

12
. “Those who feel that the essence of the corporation rests in the contract among its members rather than in the government decree … fail to distinguish, as the eighteenth century did, between the corporation and the voluntary association.” [Oscar Handlin and Mary Flug Handlin,
Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861
(Cambridge, Mass.: Belknap Press, 1961; originally published 1947), p. 92 and n. 18.]

13
. See, for example, Virginia Statutes, §13.1-812, making it “unlawful for any person to transact business in the Commonwealth as a corporation or to offer or advertise to transact business in the Commonwealth as a corporation unless the alleged corporation is either a domestic corporation or a foreign corporation authorized to transact business in the Commonwealth. Any person who violates this section shall be guilty of a Class 1 misdemeanor.”

14
. “More than 50% of all publicly-traded companies in the United States including 63% of the
Fortune
500 have chosen Delaware as their legal home,” according to the state’s Web site,
http://www.corp.delaware.gov/aboutagency.shtml.
See also Greenfield,
Failure of Corporate Law,
pp. 107-108.

15
. Greenfield,
Failure of Corporate Law,
pp. 107-108. Greenfield’s book offers a compelling case that in either event, the dominance by Delaware of the laws of incorporation for large companies is undemocratic and creates detrimental results for all of us.

16
. Delaware Code, Annotated title 8, §102.

17
. Ibid.

18
. Increasing numbers of people are calling for a similar approach, whereby corporations would have to justify the corporate advantages granted by the people and come in for charter renewal based on their public benefits and compliance with the law. Links to these efforts are set out in the Resources section following
Chapter Seven
.

19
.
Marshall
v.
Baltimore and Ohio Railroad Co.,
57 U.S. 314 (1853).

20
.
First National Bank of Boston
v.
Bellotti,
435 U.S. 765 (1978) (Rehnquist, dissenting).

21
.
Santa Clara County
v.
Southern Pacific Railroad Co.,
118 U.S. 394 (1886), did not decide the corporate personhood question or any federal constitutional question. (“As the judgment can be sustained upon this [state law] ground it is not necessary to consider any other questions raised by the pleadings and the facts found by the court”; 416.)

22
. Among the most thorough descriptions of the strange story of
Santa Clara
and the Supreme Court are Thom Hartmann’s
Unequal Protection: How Corporations Became “People” and How You Can Fight Back,
2nd ed. (San Francisco: Berrett-Koehler, 2010) and Ted Nace’s
Gangs of America: The Rise of Corporate Power and the Disabling of Democracy
(San Francisco: Berrett-Koehler, 2003).

23
. See
Pembina Consolidated Silver Mining and Milling Co.
v.
Commonwealth of Pennsylvania,
125 U.S. 81, 188-189 (1888);
Missouri Pacific Railway Co.
v.
Mackey,
127 U.S. 205 (1888);
Minneapolis & Saint Louis Railway Co.
v.
Herrick,
127 U.S. 210 (1888);
Minneapolis & Saint Louis Railway Co.
v.
Beckwith,
129 U.S. 26 (1889);
Charlotte, Columbia and Augusta Railroad Co.
v.
Gibbes,
142 U.S. 386 (1892);
Covington and Lexington Turnpike Road Co.
v.
Sandford,
164 U.S. 578 (1896);
Gulf, Colorado and Santa
Fe Railway Co.
v.
Ellis,
165 U.S. 150 (1897); and
Kentucky Finance Corp.
v.
Paramount Auto Exchange Corp.,
262 U.S. 544 (1923).

24
. Henn & Alexander,
Law of Corporations,
p. 24 and n. 2, citing Edwin Merrick Dodd,
American Business Corporations Until 1860
(1954); Joseph Stancliffe Davis,
Essays in the Earlier History of American Corporations
(1917); Simeon E. Baldwin, “American Business Corporations Before 1789,” in
Annual Report of the American Historical Association,
pp. 253-274 (1902). See also Handlin and Handlin,
Commonwealth,
pp. 99, 162.

25
. Handlin and Handlin,
Commonwealth,
pp. 106-133;
Louis K. Liggett Co.
v.
Lee,
288 U.S. 517, 548-560 (1933) (Brandeis, dissenting).

26
. Restrictions on corporate purposes were the norm. See ibid. See also
Head and Amory
v.
Providence Insurance Co.,
6 U.S. (2 Cranch) 127, 166-167 (1804) (“a corporation can only act in the manner prescribed by law”).

27
. James Wilson, “Of Corporations,” in
Collected Works of James Wilson,
ed. Kermit L. Hall and Mark David Hall (Indianapolis, Ind.: Liberty Fund, 2007), vol. 2, ch. 10,
http://oll.libertyfund.org/title/2074/166648/2957866
(accessed July 22, 2009).

28
.
Trustees of Dartmouth College
v.
Woodward,
17 U.S. 518, 636 (1819).

29
.
Hope Insurance Co.
v.
Boardman,
9 U.S. (5 Cranch) 57, 58 (1809).

30
.
Bank of Augusta
v.
Earle,
38 U.S. 519, 587 (1839).

31
.
Pembina Consolidated Silver Mining and Milling Co.
v.
Commonwealth of Pennsylvania,
125 U.S. 181, 188-189 (1888).

32
. Grover Cleveland, “Fourth Annual Message to Congress (December 3, 1888),” Miller Center,
http://millercenter.org/scripps/archive/speeches/detail/3758
(accessed July 24, 2011).

33
. Theodore Roosevelt,
Theodore Roosevelt: An Autobiography
(New York: Scribner, 1929 (originally published 1913), p. 423; Theodore Roosevelt, “Sixth Annual Message to Congress (December 3, 1906),” Miller Center,
http://millercenter.org/scripps/archive/speeches/detail/3778
(accessed July 24, 2011).

34
. Roosevelt,
Roosevelt,
p. 425. And he went further, writing supportively of the Progressive reformers: “They realized that the Government must now interfere to protect labor, to subordinate the big corporation to the public welfare, and to shackle cunning and fraud exactly as centuries before it had interfered to shackle the physical force which does wrong by violence.” [p. 425]

35
. Theodore Roosevelt, speech delivered August 31, 1910, cited in Hartmann,
Unequal Protection,
p. 161.

36
.
Connecticut General Life Insurance Co.
v.
Johnson,
303 U.S. 77, 85-87.

37
.
United States
v.
Morton Salt Co.,
338 U.S. 632, 651-652 (1950).

38
. Kentucky Constitution, §150 (1891): If any corporation shall, directly or indirectly, offer, promise or give, or shall authorize, directly or indirectly, any person to offer, promise or give any money or any thing of value to influence the result of any election in this State, or the vote of any voter authorized to vote therein, or who shall afterward reimburse or compensate, in any manner whatever, any person who shall have offered, promised or given any money or other thing of value to influence the result of any election or the vote of any such voter, such corporation, if organized under the laws of this Commonwealth, shall, on conviction thereof, forfeit its charter and all rights, privileges and immunities thereunder; and if chartered by another State and doing business in this State, whether by license, or upon mere sufferance, such corporation, upon conviction of either of the offenses aforesaid, shall forfeit all right to carry on any business in this State; and it shall be the duty of the General Assembly to provide for the enforcement of the provisions of this section.