Introduction What’s at Stake?

This book is about how an audacious, long-term, and well-funded strategy created new constitutional rights for “things” such as corporations and money, at the expense of the rights of people and democracy itself. This might be a bleak tale, except that now, four years after Citizens United, this book also is about the remarkable success of so many Americans who insist on rewriting the end of the story and renewing the promise of our democracy.

America’s story is one of defiant struggle against the odds for an improbable vision: that all people, created and born free and equal, can live and govern together “in the pursuit of happiness.” This dream of a society of free people with equal rights, where people govern themselves, was unlikely indeed in the eighteenth century. In a world of empires, governed by royalty and divided by class, and in our own country, with millions enslaved, where women were considered the property of their husbands, and where land ownership was considered a prerequisite to participation in government, the pursuit—let alone the fulfillment—of this vision was far-fetched indeed.

Yet we Americans never let that vision go, despite dark days. In generation after generation, for more than two centuries, the power of this dream drove us and inspired the world. Despite all of the contradictions, shortcomings, missteps, and failures along the way, this basic American story remains true, and it is an undeniable triumph of the human spirit. Cynics and critics will have their say, but Americans really did come together to defeat the British Empire; to overthrow the evil of slavery and work for justice; to secure equal voting rights for women; to insist that everyone, not only the wealthy, has an equal vote and voice; to suffer, work, and fight year after year to defeat fascist, communist, fundamentalist, and totalitarian challenges to our vision of democracy, equality, and freedom.

People are free. People are equal. People govern. We have lived by that and died for that, and whenever we fell short, we worked and sacrificed for that, to ensure, as Abraham Lincoln said in one of our darkest moments, “… that government of the people, by the people, for the people shall not perish from the earth.”

To triumph again over powerful enemies of human equality, dignity, and freedom in our generation, we must properly identify the challenge and bring clarity of thinking and action to making our republic work again. As so often before, success and struggle begin with the simplest of propositions: Corporations are not people and every American is an equal citizen.

In Citizens United v. Federal Election Commission in 2010, the Supreme Court of the United States concluded, in effect, that corporations are people with First Amendment free speech rights and that democracy is for sale; it is a “marketplace.” According to the Supreme Court, we cannot prevent corporations, unions, and billionaires from controlling who wins, who loses, and who gets a voice in elections and government—and who does not. In one stroke, the Court erased a century or more of bipartisan law and two previous Supreme Court rulings that affirmed the right, if not the duty, of the people to regulate corporate political spending to preserve the integrity of American democracy.

As a result, a small group of people, corporations, and unions have poured more than $20 billion into state and federal elections since the Citizens United decision. The global oil giant Chevron openly dropped $2.5 million into the Speaker of the House of Representatives’ PAC, with only yawns from a Washington press corps incapable of seeing scandal at the end of their noses. Chevron even spent $1.2 million in a city council election in Richmond, California, a community of 100,000 people living in the shadow of a Chevron refinery that caused 15,000 residents to go to area hospitals.

The US Chamber of Commerce, working for global corporations, spent more than $35 million—the source of which is secret—in the 2012 election and has passed the $1 billion mark in lobbying spending since 1998. In case that kind of money was not enough to warrant politicians’ attention, the Chamber president warned, “When we bite you on the ass, you bleed.”

The “corporate capture of the courts,” as Elizabeth Warren has put it, goes beyond the issue of money in politics. The same “corporate speech rights” fabricated by the Court in Citizens United now are used with regularity to strike down laws deemed unfriendly to corporate profits. In 2014, one business corporation with 13,000 employees and more than 500 stores, Hobby Lobby Stores, Inc., has even gone to the Supreme Court with a claim that it—the corporation itself—has a constitutional right of free exercise of religion so as to to deprive those employees of legally required insurance coverage for reproductive health care.

Corporate-oriented courts now are creating astounding new corporate constitutional rights. The pharmaceutical industry has a right to traffic in private prescription information, driving up health care costs. Monsanto has a right “not to speak” to block GMO labeling. Utility corporations have a right to promote energy consumption in defiance of conservation policies. Cigarette corporations have a right to eliminate warning labels. Corporations now have a right to deprive employees of information about whether they may join a union. Verizon and the telecommunications industry claim a constitutional right to secretly turn over customer data and information to the government.

Citizens United, then, is not merely a mistake easily corrected, nor is the case simply about campaign finance or money in politics. The Court’s declaration in Citizens United that corporations have the same rights as people must strike most Americans as bizarre. To the five justices in the majority and to the corporate legal movement out of which they have come, however, it was more like a victory lap or an end zone dance for a three-decade-long campaign.

This campaign, begun in the 1970s, had already succeeded in creating a corporate trump card to strike down federal, state, and local laws enacted for the public’s benefit. Even before Citizens United, the fabrication of corporate rights and the reality of corporate power controlled economic, energy, environmental, health, budget, debt, food, agriculture, and foreign policy in America.

The results? Massive job outsourcing abroad; destruction of our manufacturing capacity; wage stagnation for the vast majority of Americans and unprecedented enrichment of the very few; uncontrolled military spending and endless wars; out-of-control health care spending at the same time that millions of people cannot get health care at all; bloated and unsustainable budgets and debt at every level of government; national and global environmental crisis; loss of wilderness and open land, and the takeover of public hunting and fishing grounds; chain store sprawl and gutting of local economies and communities; obesity, asthma, and public health epidemics; and a growing sense that the connection between Americans and our government has been lost.

Not forever, though. Since Citizens United, millions of Americans have decided that we do not have to live with this and that we can put the American project back together again.

To most effectively respond, we need to see where Citizens United came from and how much we have lost to the triumph of corporate and money power. Most of the first six chapters of this book, therefore, examine these themes from different perspectives. In Chapter Three, I digress to examine what a corporation actually is as a matter of law and fact. This may be a digression, but it lies at the heart of why corporations can have no constitutional rights superior to the rights of the American people to make laws governing corporations. Corporations are not merely private entities, owing no duties to the public. Corporations are legal creations of government, with the duties as well as privileges that we, the people, decide upon in public debate.

In the latter part of the book, I describe a roadmap back to democracy, republican government, and balance in a sustainable economy. The heart of this road map is a strategy, already making significant progress, for reversing Citizens United, cleaning the swamp of our corrupted politics, and designing corporations that better serve our society.

We are well on our way to a Twenty-Eighth Amendment to the Constitution that will overturn Citizens United and corporate rights, and restore people’s rights and equal citizenship. People, outside of Washington, D.C., anyway, are coming together across political, ideological, and cultural differences to work on bigger, more fundamental reforms in elections, voting rights, and anti-corruption. And corporate law no longer is left only to corporate lawyers. People in business, people as customers, and people as citizens are insisting on corporate accountability and corporate law reform. They want corporations that better reflect the public policy reasons for which we allow the legal benefits of incorporation, such as limited liability, and they are making it happen.

Finally, a word about nomenclature: I am not “anticorporate,” and this book is not “anticorporate,” whatever that means. When I refer to “corporations” and “corporate power” and the like, I am talking about large global or transnational corporations. Size matters. Complexity and power matter. Whether corporations operate in the economic sphere without dominating the political sphere matters.

Thousands and thousands of corporations in America are just like the corporation I set up for my business and just like the kinds of corporations that you may have set up or worked for. They are convenient legal structures for businesses to make economic activity more efficient, productive, flexible, and, we hope, profitable.

If I am “anti” anything, I am opposed to any force that takes God-given rights away from people and threatens one of the most remarkable runs of democracy and republican government in the history of humanity. Today that force is defined by the misguided ideology and unbalanced power that Citizens United represents and has let loose: insufficiently controlled global corporations empowered with “rights” and locked-in political inequality that leaves elections and government to those with vast sums of money. To succeed in making government of the people real in our generation, we will need to restore our right and duty to check, balance, and restrain that power.