Natural vs. Artificial "Persons"
Multinational Monitor magazine, December 2000
Corporations are fundamentally different than you and me.
That's a simple truth that Big Business leaders desperately
hope the public will not perceive.
It helps companies immeasurably that the law in the United
States and in many other countries confers upon them the same
rights as human beings.
In the United States, this personhood treatment, established
most importantly in a throwaway line in an 1886 Supreme Court
decision, protects the corporate right to advertise (including
the tobacco companies' right to market their deadly wares), corporations'
ability to contribute monetarily to political campaigns, and interferes
with regulators' facility inspection rights (via corporate rights
against unreasonable search and seizure).
But even more important than the legal protections gained
by faux personhood status are the political, social and cultural
Companies aggressively portray themselves as part of the community
(every community), a friendly neighbor. If they succeed in that
effort at self-characterization, they know what follows: a dramatically
diminished likelihood of external constraints on their operations.
If a corporation is part of the community, then it is entitled
to the same freedoms available to others, and the same presumption
of non-interference that society appropriately affords real people.
Especially because corporations work so aggressively and intentionally
to obscure the point, it is crucial to draw attention to the corporation
as an institution with unique powers, motivations and attributes,
and to point to the basic differences between human beings and
the socially constituted and authorized institutions called corporations.
* Corporations have perpetual life.
* Corporations can be in two or more places at the same time.
* Corporations cannot be jailed.
* Corporations have no conscience or sense of shame.
Corporations pursue a single-minded goal, profit, and are
typically legally prohibited from seeking other ends.
There are no limits, natural or otherwise, to corporations'
* Because of their political power, they are able to define
or at very least substantially affect, the civil and criminal
regulations that define the boundaries of permissible behavior.
Virtually no individual criminal has such abilities.
* Corporations can combine with each other, into bigger and
more powerful entities.
These unique attributes give corporations extraordinary power,
and makes the challenge of checking their power all the more difficult.
The institutions are much more powerful than individuals, which
makes all the more frightening their single-minded profit-maximizing
Corporations have no conscience, or has been famously said,
no soul. As a result, they exercise little self-restraint. Exacerbating
the problem, because they have no conscience, many of the sanctions
we impose on individuals-not just imprisonment, but the more important
social norms of shame and community disapproval-have limited relevance
to or impact on corporations.
... the consequences of unrestrained corporations: despoilment
of the natural environment, infliction of preventable disease
on people, smashing of workers' democratically controlled unions,
retaliation against the whistleblowers who seek to call attention
to egregious corporate abuses, invasions of privacy, denial of
care to the sick, needless endangering of consumers, and more.
The fact that corporations are not like us, their very unique
characteristics, makes crucially important the development of
an array of controls on corporations. These include: precise limits
on corporate behaviors (actively enforced environmental, consumer,
worker safety regulations, etc.); limits on corporate size and
power (through vigorous antitrust and pro-competition policy,
including limits on the scope of intellectual property protections);
restrictions and prohibitions on corporate political activity
(including through comprehensive campaign finance reform); carefully
tailored civil and criminal sanctions responsive to the particular
traits of corporations including denying wrongdoing companies
the ability to bid for government contracts; equity fines-fines
paid in stock, not dollars; creative probation, with a court-appointed
ombudsman given authority to order specific changes in corporate
activities; and restrictions on corporations' ability to close
or move facilities.
There is also the permanent challenge of building countervailing
centers of people power to balance concentrated corporate power:
unions above all, plus consumer, environmental, indigenous rights
and other civic groups, organized in conventional and novel formations.
And there is the imperative of directly confronting the corporate
claim to personhood and community neighbor status-both in the
law and in the broader culture.
This is the beginning of a sketch of an ambitious agenda,
but there is no alternative, if democracy is to be rescued from
the corporate hijackers who masquerade as everyday citizens.