On Corporate Personhood (Finally)

On September 12 I headed over to Goergen Hall on the University of Rochester Campus for a panel discussion titled "Block that Metaphor? Corporate Personhood Before and After Citizens United". The panel consisted of Lynn Stout from Cornell Law School, Greg Urban of the University of Pennsylvania, and Elana Shever from Colgate University. It was moderated by Robert Foster at the University of Rochester.

Lynn Stout studies corporations from a legal perspective. She started off by emphasizing that corporations are real, not a metaphor. The term "personhood" refers to a set of legal rights that allow a corporation to, for instance, have the right to own property in its own name. She's enamored of the idea of corporations which give people the ability to perform long term projects that human beings would never do.

The key to this is the ability to lock up capital assets — the ability to hold money indefinitely, and prevent any stakeholder from reclaiming any part of jeir investment. As such, they need some first amendment rights to protect their property from expropriation. But, she added, corporations should never have the right to vote, for instance, and should not have a right to privacy.

As such, it is not simply an association of people: it is a separate kind of entity. And being a unique kind of entity, it does not have the same rights as an association of people.

Greg Urban brought an anthropologist's view of corporations. To him, they are cultural constructions that look like tribes or social groups and act as powerful agents or actors. They are part of a broader human tendency to form groups such a guilds, universities, and towns. He agrees, therefore, that a corporation has a right to exist as an entity unto itself.

Historically, corporations were once chartered which required political clout. And like other kinds of human groupings, they have rituals — business meetings, for instance.

Viewed from the outside, social groups appear as agents: things which exist in perpetuity. This is similar to things like family groups (i.e. family names) or clans which are comprised of — but separate from — their constituent human beings. Precedent exists for treating a group in place of the actions of an individual, for when a group acts, we do not look to the individuals in that group. They are agents with practical efficacy. And for any of these groups to move, it must be done so by discourse and agreement.

Economics had a hard time dealing with corporations what with being a new and separate agent, and in finance they are commodities with assignable values. In neither model are corporations considered persons. The concept of personhood is only in the popular culture and in the legal culture. And the corporate metaphor is dangerous when it is comprised of a single person rather than an aggregate for how would such a corporation exist separate from its sole constituent?

Elana Shever began by noting Michael Polan's work on examining himself as a group of organisms rather than a single entity, coining the term "first person plural". For what is an individual? Theoretically it is that part that remains constant in an ever-changing group. Thus, we can think of both humans and corporations as "ecologies" that contain organisms as well as goods and byproducts. As such, it's a false belief that shareholders define corporate action. Stout responded favorably to the "super-organism" model, adding that it is damaging to think of corporations as the property of shareholders.

Urban spoke of the Shell corporation in Argentina. Internal to Shell's management, there is a belief they are doing good, but many layers away, the people who operate the plants see the external populace as a nuisance. There are actually a series of separations — divisions between managers and workers — that cause this. It is an efficiency in the system that makes good business sense but it is not allowing Shell to work towards a unified goal.

Activists opposing Shell were often strongly reinforcing the idea of it as an individual citizen, and this popular idea is influential in increasing corporate power. So to take a different tack, could it be politically beneficial to rethink "personhood" as it relates to humans?

He said that there must be some kind of communication and common goals within the "divided corporation" model, adding that corporations should benefit society.

People from the audience had a chance to ask questions. Would more regulations be helpful? It seems that corporations are like a "monster that will devour the planet": do we have a super organism that can combat it?

Stout responded, noting that it's common to blame problems on the misbehavior of human beings, but we behave differently inside a group, and institutional environments create bad decisions. Government is probably more broken because lobbying can buy a corporation new rights yet the government needs to be a check on power.

The event organizers began taking questions three at a time (which I thought to be a mistake). I asked, given the way people's behavior changes inside a group, is there a way to make better members of corporations? Another person asked about ontology: if a person is an actor, then what about thinking of functional assemblages, since the parts may change but the unit endures. It seems transparency is key, but giving free speech rights to groups inexorably creates obfuscation. And finally, another person noted that it's less about rights than about responsibilities: how far does responsibility go?

Stout noted that sometimes an individual commits a crime as part of a group, but often it is the organizational design that causes an undesirable behavior. We need to view them as assemblages. How do we keep the useful ones? Should we have a corporate death penalty? Currently, if you want to sell stock, you need to disclose certain financial information, but we should add a requirement to have political disclosure as well.

Urban responded that he is not so excited about laws. For instance, rating agencies (forged organically) work well, but once the quality of the ratings become law, the goals change and the ratings companies just sell good scores.

Shever added that thinking of corporations as "assemblages" means it can easily become disassembled which is dangerous.

The final question that because of discussion of corporate personhood, are people are starting to think of themselves as little corporations? Urban noted that medieval Italy saw families this way. Stout noted that any thing before the law is some kind of person, and a corporation's property and the human agents that represent it are not invisible.

This discussion certainly offered some new information, but I found it lacking.

Stout expressed a belief that corporations let us make great things like railroads and bridges — things that would be impossible if it were attempted by human beings. I was skeptical that the corporate landscape is dominated by such beneficial behavior. And even when something is a benefit overall, it still has numerous negative repercussions.

In an ideal world, when a corporation is founded, it would have a specific benefit to society that serves as its operating goal — and "to make a profit" is not a concept that should be part of that goal. Making a profit should simply be a side-effect of providing a benefit, or a means to an end where providing the beneficial behavior necessitates continued existence.

Also, it seems to me that the only way to circumvent poor behavior of groups is to have a very shallow hierarchy. It seems necessary to have a small group of people whose sole function is to disseminate and clarify the goals of the corporation. The minimal case beyond that would be an anarchistic group that would organically form around tasks to achieve those goals. As layers of management are added, the communication of the goals is necessarily muddied.

Afterward, Stout encouraged us to look into the American Anti-Corruption Act. Echoing Stouts explanation, I'll quote the website:

The Act was crafted by former Federal Election Commission chairman Trevor Potter in consultation with dozens of strategists, democracy reform leaders and constitutional attorneys from across the political spectrum.

The Act would transform how elections are financed, how lobbyists influence politics, and how political money is disclosed. It’s a sweeping proposal that would reshape the rules of American politics, and restore ordinary Americans as the most important stakeholders instead of major donors. The Act enjoys support from progressives and conservatives alike.

It is an impressive list of ideas that appears to have been vetted by legal experts to ensure it can be passed. If all the line items are passed, it would indeed mean a tremendous positive shift in the way elections are held and how the country is run.

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Thoughts on Heist: Who Stole the American Dream?

I decided to head to The Little (240 East Ave.) to see Heist: Who Stole the American Dream? Filmmaker Frances Causey, and author David Cay Johnston were there to discuss the film with moderator Julie Philipp.

Of course, because I can't remember facts, I'm heading to Heist's Official Website with this outline of the central point:

Beginning with background on the New Deal, HEIST explores how Franklin Delano Roosevelt's progressive policies were derailed by Ronald Reagan and subsequent presidential administrations, benefiting only the wealthiest investors and CEOs. HEIST exposes the full story: how corporate leaders worked with elected officials of both major political parties to create the largest transfer of wealth in history, looting the economy to create a gap between rich and poor previously seen only in impoverished colonial nations. The film is structured as a political thriller, showing the shift from FDR's New Deal reforms to an ideology where the free market reigns. It reveals the impact of the infamous Powell memo of 1971 entitled "Attack on American Free Enterprise System," which was a call to the U.S. Chamber of Commerce for American business to defend its interests against criticisms of unregulated capitalism. The Powell Memo and the 1000 page Mandate for Leadership document published in 1980 by the conservative Heritage Foundation, which were written to promote business interests and deregulation, serve as the starting points of the story to show the roots of the class warfare unleashed by big business, and how wealth in the U.S. was transferred from workers to corporate interests over decades of policy shifts.

I walked in there brimming with confirmation bias. The facts presented in the film and the theories behind them fit exactly with my own experience and observation of corporate expansion of scale and power, the behavior of the media, the exploitation of journalistic standards, government, and taxation — pretty much everything.

The other day I was in a restaurant with a TV on some news network, and the on-screen personality was presenting — as news — changes to the contract plans of one of the cell phone companies. To me, this was just the flat-out reading of a press-release generated by that company. I argue this isn't news (but I think I'm more likely to get people to agree that it's the reading of a press release so I'll stop while I'm ahead). This doesn't violate journalistic standards per se — where the goal is to accurately represent statements from an individual or organization. But there's something there that misses the spirit of journalism … perhaps the spirit that journalists are the watchdogs of democracy rather than the lapdogs of the aristocracy [a phrasing that is not exactly right, but far too clever for me to omit].

Heist, however, confirms my suspicions. One of the goals of the 1971 Powell memo was to control the media in exactly this way. Modern journalists don't just go out and pick their own stories: morning e-mails outline the stories they are to cover. Those e-mails are sent by the managers which are driven by their managers, and so on, until you get to realize that there are only a half-dozen media companies making these decisions. A few years ago, I recall watching the nightly news and flipping between channels — horrified that every single story was being reported on the other stations in exactly the same order. The simplest explanation was that the schedule for all three stations came from the same source.

I thought Heist presented a solid case, but it's also affirming what I believe already, so how can I be confident that the theory it presents is an accurate one? I was thinking that people bring their own biases, and they're more likely to be swayed by something that agrees with their established ideas than by something that does not. So why would someone be influenced by this film? I muddled my way through asking a question of the panel and got most of it across.

Frances Causey made a point to say that she had been a journalist at CNN, but left to work on more in-depth projects like this one. She said she spent an extraordinary amount of effort confirming that every fact — especially the most sensational ones — were verifiable and accurate.

What's omitted in all the discussion, though, is the underlying theory. I'm going to take as given that the facts are true, and the sequence of events is as depicted (i.e. corporations are using the 1971 Powell memo as a playbook). But Heist answers the question, "is this good?" with a resounding "no." In fact, it basically presumes that this is not good.

Individually, I think this kind of world sucks. I hate having to constantly be an outsider simply because I observe the world directly and draw my own conclusions.

Working outward, I also think that centralized power and wealth creates an inhospitable society for people to live. I think the core argument opposing that opinion is that the system we have at present provides slightly less than what people want, and that encourages them to work more and work harder, propelling progress. It doesn't actually let people starve (for the most part) but it does ensure people are in a constant state of indebtedness.

What I mean that it's inhospitable is that it could be much better. If all the wealth and power tied up in making more wealth and power were instead used to foster individual household energy independence, health care for all, true theoretical scientific research, elevating everyone's education, and so forth, I think we'd be far better off.

There is a fear — and rightfully so — that this may lead to a bunch of idle hands that become the devil's playthings, but it's entirely possible to get back to some of the good parts of the 1950's: particularly the possibility of income from a 25th percentile individual providing all that's needed to raise a family. Is it not absurd that two college graduates must both be employed to earn a decent living?

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Watching END: CIV Resist or Die at the Flying Squirrel

I figured it would be interesting, so I headed over to The Flying Squirrel Community Space (285 Clarissa St., formerly the Flower City Elks Lodge) to see the essay film END: CIV Resist or Die. Filmmaker Franklin Lopez introduced the film by talking about how he was deeply moved when he heard Derrick Jensen speak and how he built his film around much of Jensen's work. Lopez said he was impressed by the impeccable logic laid out in Jensen's books Endgame, Vol. 1: The Problem of Civilization, and Endgame, Vol. 2: Resistance, which outline the environmental apocalypse in our midst as simply being caused by what we call "civilization". I'll narrow things a bit and discuss corporations and industry.

First, note that corporations, organizations, machines, and tools, if anthropomorphized, are psychopathic. In other words, these things behave without consciousness, hence without inherent morality. I know that corporations and organizations include people which do have morality, but the nature of the group does not reflect that individuality. In fact, because corporations and organizations have rules in place that prevent any one person from having any decision-making power, the effect of their individual morality is nullified.

Second, all corporations we create have as their highest priority (or if not, a high priority) to make money. The secondary priority of a corporation is to operate in its industry sector. There is no primary consideration to the value of human life, or of life in general, or of the resources life needs to survive. As such, if life-giving resources, life, and human life are an obstacle to those goals, the corporation will attempt to spend as little money as necessary to get past those "obstacles."

Third, corporations generally do not have an expiration condition. As such, they will continue to operate in the primary industry sector until there is no economically viable way to continue.

Finally, the economic and social system we have in place is generally taken as given. That is, what we call "civilization" cannot be changed directly.

The film looks closely at two industries: oil production and logging.

In the case of the logging industry, the cheapest path to financial success is greenwashing — giving the illusion of sustainability — as that is cheaper than actual responsible forestry. In one instance, a tribe of Native Americans attempted to stop a logging company from cutting down the forest on their sacred lands, but Greenpeace intervened and came to an agreement to permit logging of their lands. (Yes, you read that correctly: Greenpeace voluntarily did not stop the logging.)

More damning, though, is the case of oil production. The industry likes to claim there are nearly limitless reserves available. What they fail to mention is that unlike when oil was discovered bubbling out of the ground, the extraction of newly discovered oil is nearly a losing battle. In fact, if they were charged for the water destruction and the pollution from leaks and accidents, it would likely not be profitable. But the industry subsidizes itself by coercing agreements to use and pollute water without added cost — destroying the resources necessary for life in its driving need for further profitability.

The film refers again to Jensen's works to note that peaceful protests were coincident with violent ones. In other words, Mahatma Gandhi and Dr. Martin Luther King, Jr. did not act in isolation — rather, they were the peaceful resisters in a sea of varying degrees of civil disobedience, property destruction, and bloodshed. As such, the power structures in place were able to engage them and make some advantageous changes, but only so much as to defuse their more violent contemporaries.

It's clear that peaceful protest alone accomplishes nothing. I have watched as wars were started with 250,000 people in the streets of Washington, D.C. in opposition. And I now see how natural gas companies are running roughshod over the peaceful protest of citizens only wishing to protect their water supplies from contamination. Without the teeth of violence, no change occurs, even if it is not those acting in violence who sit at the negotiating table in the end.

Derrick Jensen has an interesting quote about all this from Endgame, Volume 1. He opens by asking if the reader would have joined the resistance in Nazi Germany then says:

Now, would you resist if the fascists irradiated the countryside, poisoned food supplies, made rivers unfit for swimming (and so filthy you wouldn't even dream of drinking from them anymore)? What if they did this because … Hell, I can't finish that sentence because no matter how I try I can't come up with a motivation good enough even for fascists to irradiate and toxify the landscape and water supplies. If fascists systematically deforested the continent would you join an underground army of resistance, head to the forests, and from there to boardrooms and to the halls of the Reichstag to pick off the occupying deforesters and most especially those who give them their marching orders?

When, exactly, is enough?

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The Yes Men Fix the World at the Dryden

I left the show a little early to get to the Dryden Theater at George Eastman House (900 East Ave.) for a screening of The Yes Men Fix the World. I had been aware of some of the … umm … pranks? stunts? performance-art pieces? … created by The Yes Men for some time. I had recorded a segment on Democracy Now! back when I had satellite where they had convinced BBC News that they represented Dow Chemical and wanted to help fix the ongoing disaster created by their then-recently-purchased subsidiary, Union Carbide in Bhopal, India in 1984. The movie goes behind the scenes of how they got on the air and announced that in honor of the 20th anniversary of the disaster, Dow was committing billions of dollars (US$12 billion, if I remember correctly [and indeed, upon reviewing my copy of the interview on Democracy Now!, it was]) to help the people and clean up the site. By the end of the day, the hoax was revealed, and the largest complaint was not that Dow didn't step forward and do what was right and just (i.e. commit resources and fix things) but that the hoax cost Dow shareholders US$2 billion.

And that's essentially what The Yes Men are continually asking: why can't we make a world where corporations do the right thing? Their method of asking that question is to enter situations where they present themselves as members of corporations and announce that they are going to do the right thing.

I spent most of the movie saddened that these pranks never seem to have any effect: corporations continue to do the wrong thing, claiming that the increased profits are worth more than any real benefit.

But then I realized that no one person (or even large a group) can instantly make change. Rather, it is through the constant pressure of good that makes the world better. So when I left, I got on my tall bike (which, believe it or not, I made just over 5 years ago) and realized that we all need to make the world a better place. Even little things matter because all there is is little things.

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