No Human Left Behind!
Seth Berner for Maine Legislature in 2012

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   Seth Berner
   Maine Green Independent Party

   Candidate for Maine House of
   Representatives, District 115

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169 Clinton St.
Portland, Maine 04103

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Corporations: The tail wagging the dog.

So here we are in this democracy. Split off from England because we had taxation without representation, started something new that would be a model for the rest of the world. For the first time in history a country put in writing what it believed in - the US had the first written Constitution. And we had a Declaration of Independence saying why we fought the Redcoats, and the federalist papers with the full and fair consideration of all things that did make a society or might make a society or could make a society. It was an amazing time and an amazing debate and an amazing dream. Some details not perfect, for instance Native Americans and slaves and women and white men who didn't own land got short changed. Details. But the general concept of democracy and freedom was on the right track.

So here's a little quiz: in what founding document are corporations referred to? Okay, okay, trick question, since there is no direct reference to something that didn't exist at the time. So try this: in what founding document is a reference to corporations implied? or an identification of corporations even possible? We're all proud to be Americans, devoted to our freedoms and dreams, should be familiar with our most important historical documents. From whence comes the idea that freedom of speech or freedom of anything applies to other than humans?

The dog discovers a tail.

For all its dreams America has always been a land divided into the haves and the have nots. The Constitution might not say much about corporations, but it says plenty about how power and opportunities were to be distributed, and it makes clear that distribution was not to be equal. We were prepared to get rid of some of England's social structures - a state-sanctioned church, for instance - but from our earliest days we had no intention of replacing a class-based society with egalitarianism. England had royalty and titles; America had the landed gentry who would serve the same ruling function. From our earliest days we had a reverence for the rich, and we honored that reverence by helping them stay rich and get richer.

But our founding documents pointed to another difference from England - the settling of disputes by potentially, presumptively neutral decision makers. Courts. In England if a peasant had a conflict with a lord he could demand a trial by the lord's peers, and he may or may not have gotten a hearing but he almost certainly would not have gotten disinterested consideration. But in America, a peasant with a gripe could bring a suit against a wealthier individual, and if the gripe were legitimate the peasant had a fair chance of getting some retribution. In other words, there was not complete immunity for the rich.

This was a problem of sorts. America was moving forward through the efforts and risks of the rich and educated (who, generally, were the same group). What risks would be taken? what developments hazarded if failure lead to punishment? While the history of corporations is somewhat complicated the short version is that corporations were a state-sanctioned artificial creation intended to shield individual liability, so that large-scale ventures could be undertaken. Railroads. Chemicals. Steel. Banking. The innovations that were making and would make America great.

Shielded liability meant that if a business failed, one who had been injured might have no compensation, even if the corporate leaders had assets of their own. This assignment of and protection from risk was a choice that we, the people, made in the name of progress and prosperity.

The tail starts wagging.

Had the story ended there it would have been bad enough, because those who commit injury through real negligence or recklessness should not be able to walk away from the consequences of their acts. If I am exercising my right to bear a firearm and shoot you I should have to pay for your injuries, right? I shouldn't be able to avoid paying you a dime, even though I own six homes and a kennel of trained dolphins, just because I can convince someone that the gun was fired not by Seth Berner but by Seth Berner Inc. At least to me that would be bad.

But it got worse. Our fascination with the rich had never diminished. And while we as a nation were becoming increasingly, rabidly opposed to the idea of working people joining together in unions we were becoming increasingly accepting of financial assets joining together in unions. Corporations were becoming bigger and more powerful than the individuals who initially formed them, because in a short time corporations were no longer combinations of individuals, they were combinations of war chests. And even if they remained in the hands of a few their bigness alone earned them a great measure of respect.

Some of the decisions defining "corporations" were not clearly objectionable. For instance, Dartmouth College v. Woodward, holding in 1819 that corporations could make contracts the way that individuals could. But Santa Clara County v. Southern Pacific Railroad in 1866 and its explicit statement that corporations could be considered as people started the push to make the tail as important as the society dog it had been appended to. The shift was gradual but steady for the next century, with corporations gaining more and more power; citizens and governments holding less and less power (and less and less willingness) to fight corporate growth.

The transformation of the tail into the dog was completed - at least completed thus far - with Citizens United v. Federal Elections Commission, a 2010 case in which the United States Supreme Court went beyond what it was being asked to decide, to issue a sweeping proclamation explicitly giving corporations the status of associations of individuals. In so doing, the Court put corporations beyond most government regulation. Congress and the States now have more power to impose limitations on how people can speak and spend money in elections in particular but in life generally than they hold over corporations, since you can jail a citizen but you can't jail a corporation. Corporations have no constitutional existence, no constitutional right to exist, but once created they exist beyond the power of the state. Terminator of the business, political and economic world. I'll be back, indeed (Arnold's famous line from the first Terminator movie).

But don't we have capitalism? Shouldn't we expect this?

No. And no. First and foremost, we have a constitutional democracy. (A constitutional republic, but that's another discussion. For this we can think of it as a democracy.) This means that fundamental rights are set forth in founding documents, and it is then up to the three branches of government to protect those rights. There is nothing in our political structure that says that corporations are people or greater than people. Nothing.

Nor is there anything in the basic definitions of capitalism - an economic philosophy totally unrelated to a political philosophy - that says that a capitalist society must have, nevertheless be subservient to corporations. Capitalism says that markets should be free to decide directions, and then elevate winners and permit losers. There is no "too big to fail" in a free market - that is a gross deviation from capitalism. Capitalism says that when a business runs itself into the ground, or causes such injury through negligence or recklessness that it loses its pants in law suits it goes under. We as a nation have made decisions to protect corporations, but in doing so we are violating, betraying basic principles of capitalism. When we favor corporations over businesses run by individuals we have traded capitalism for corporatism.

So we have corporatism - what's the big deal?

If we showed just some favoritism towards corporations it might not be a big deal. But so heavily are our policies slanted towards the biggest of the big that we should be known as the United Corporations of America. You want to protect the environment? Sorry, business objects. You want to establish safe working conditions? Sorry, business says it would hurt sales. You want to hold CEOs accountable for intentionally putting unsafe products on the market? Corporate shield speaking, can I help you? You think banks and car companies and investment houses that both declare bankruptcy AND pay their directors salaries in the millions of dollars should accept market adjustment, as the expression goes? Sorry, too big to fail.

In the wake of the 911 tragedies and the negative effect it had on air travel the US government gave large sums of money to the airline industry because it needed it. But a lot of people lost jobs for a long time and got . . . . nada. zilch. As one US Senator put it, helping individuals "is not the American way."

Helping corporations is the American way. That's what's wrong with American-style corporatism.

But things are cyclical. Won't things change if we are patient?

My favorite sportswriter preaches that supremacy among college football conferences is cyclical. For a while it has been the SEC, soon it will be other teams in other conferences. I think he's right, because while all the advantages favor the big conferences no particular conference or team is particularly favored.

There is an analogy to be drawn from what Stewart Mandel says about football to American politics. And that is that all the advantages favor the big political conferences. All of the power brokers: the branches of government, the media, and anyone else that matters. The biggest political conferences are not governmental, they are corporate. Walmart has one of the biggest budgets on earth, it controls more money than any US state. When it suggests to a manufacturer that it cut corners on safety regulations or wages or anything else the manufacturer does it if it wants to keep Walmart's business, and government turns a blind eye. Or goes after the relatively small manufacturer and leaves Walmart alone. Large numbers of full-time Walmart employees get food stamps, because Walmart wages are so low, benefits nonexistent, that families can't be supported on Walmart wages. There is no child care, so even two-parent families can't have two parents working. And so people working for one of the biggest corporations in the world are being paid in part by taxpayers rather than the employer - you didn't think that Walmart covered the cost of food stamps, did you? And people in most areas can't find other work because Walmart buys up or drives out competition until it has a monopoly, and then cuts wages and resumes undermining workplace integrity. And our government's response? Thank you, Walmart.

The media used to have a special place in American communities - reporting the news. The media's job now, now that it is owned by corporations being run for profit, is to support itself. We don't get news, we get infomercials. We get arguments why corporate interests should be supported. We get lied to, sold out, sold to, and generally kept in the dark.

And with Citizens United things have gotten worse. No longer are there any restrictions on what and how corporations can participate in political discussions. If a corporation has a horse in a race it will spend whatever it takes to make the electorate back that horse. It will run news stories, run interviews, work story lines into sit coms, whatever it takes, whatever it costs to bring a particular point of view to the masses. In theory corporations can fight among themselves, and on occasion they do. But if profit is the goal they will all back candidates and policies that offer the greatest potential for profit, and common sense suggests that in most cases most corporations will be working together politically, so that they can (if they chose, they might choose not to) compete economically.

And since the cycle we are talking about is political and politics are dominated by corporate influence the prospects for improvement are not good. Not better, anyway, than they were before that famous fire in Rome while Nero was fiddling; before Germany invaded Poland; before most of the events that were far more than adjustments, they were crises. Obama received more contributions from BP than any other politician between 2004-2009; more contributions for his presidential campaign from the investment industry than any other politician had ever received. Those contributions got results. What is going to make that a phase and not the picture of the future?

But don't corporations create jobs?

Yeah. Right. Tell that to the hundreds of thousands of American workers who were laid off as soon as "Free Trade Agreements" went through requiring foreign governments to let corporations get a workforce for free, with no responsibility for environmental destruction. Corporations can create jobs. But they don't do a good job of it. It's not in their best interest. Business can create jobs, and business may or may not be corporate. Governments can create jobs - and it might be cheaper to put people to work than bail out failed corporations. We talk about jobs because they are needed by society. But corporations are not motivated by what society needs, they are motivated by what they want. And most of the time those are mutually exclusive values.

And too often the jobs created don't pay living wages. They pay wages that need to be supplemented by taxpayer dollars. They come with dangers to health leading to health issues that, invariably, taxpayers pay for. We sure do want and need jobs. But there are jobs, and there are jobs. And a long body of history tells us that big corporations do not create sufficient jobs voluntarily. And with far too many controls removed voluntariness is all that is left.

So what do we do?

Realistically? The Supreme Court did a good (and intentional) job of tying our hands. Efforts are under way to pass a constitutional amendment defining "person" as human and not corporate. We could not pass an amendment giving women equality, maybe we will be able to get an amendment giving humans equality. In Maine, we can look at how we define "corporations" and how we let corporations function in our State. Our best option is to do what some states have done already - pass a law requiring that all campaign contributions be identified by amount and source in a timely manner. This will not stop the contributions, but it will make clear that funding to defeat marriage equality was almost entirely from out of state (it was). And if a corporation that should be neutral contributes a large sum to one particular candidate the public will know, and react to that corporation accordingly. Which might have the effect of keeping neutral corporations that should be neutral. We need to be looking at anything and everything that might make corporations society's servants and not the other way around.

What voters can do is ask candidates how they feel about Citizens United. Vote for those who give the "right" answers. Don't vote for those who give the wrong answers or seem uncomfortable by the question. Think about the society you want - whether it is built of people or corporations.

People, not profits!
People power over corporate power!

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Seth Berner for Maine Legislature - 169 Clinton Street, Portland, ME 04103 - (207) 775-2452 -

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