Getting away with murder
Case 1:The "Tobacco Industry" for decades not only suppressed the evidence that tobacco causes cancer and that nicotine is highly addictive, but it also adopted an aggressive strategy of attacking anyone who dared to bring those facts to light. It spent many millions on attorneys to defeat lawsuits brought by the injured, dying and dead, and many more millions on lobbyists to keep legislators from acting against the industry's profits, all the while its executives lied and lied, even to Congress. This regime of bullying and deceit did not come down until after a new major lawsuit was filed some whistleblowers within the industry stepped forward to point the way to the evidence it had withheld.
Case 2: Ford Motor Company executives were presented with evidence that the Ford Pinto had a gas tank design flaw which would result in severe injury and death in auto accidents. Their response? They asked their actuaries and accountants to estimate how much it would cost to recall existing vehicles and retool to produce safe ones as opposed to how much it would cost to defend and pay the inevitable damage and wrongful death claims. In other words, they engaged in a "costs-benefits" analysis based strictly on dollars and cents, as if human lives and suffering were just more numbers in their profit equations. When the estimates showed that projected claims would cost less than protecting lives, they chose to keep mum and kept on producing defective vehicles. That didn't stop until one particular lawsuit, which became the basis for the movie "Class Action" starring Gene Hackman (1991), wherein the evidence of that decision process was discovered by attorneys for a very badly burned victim.
Case 3: General Motors, in a repeat of the decision process taken by Ford Motor with the Pinto, chose not to reveal that there was a design defect in the ignition key mechanism which could lead to serious injury and/or death. It wasn't until after several accidents which resulted in those injuries and deaths that there was a recall and fix of the problem - and that only occurred because, once again, an attorney for some of the injured discovered the evidence after filing a damage suit.
Case 4: In yet another repeat, Toyota for years hid the fact that there was a design defect in some of its vehicles which resulted in "sudden acceleration" leading to injuries and deaths.
What do all of these cases have in common?
1. In each instance serious crimes were committed: murder, manslaughter, battery, intent to commit, conspiracy to commit, violations of RICO - probably many more.
2. All were based upon knowing decisions of and actions taken by executives of major corporations; i.e., decisions and actions of real live human beings acting within and through a corporation.
3. In each and every case not only was there no action taken by any state or federal authority to criminally punish the real live human beings who committed these crimes, there wasn't even a criminal investigation directed at the culpable parties. All investigations were directed to "the corporation."
Corporations 101: they're only pieces of paper
A corporation is no more nor less than a creation of state legislatures. It is a "legal fiction" or "fictional entity," meaning a "person" that has no existence outside of statutes. It was created many centuries ago with the principal purpose of insulating its owners from personal liability for contractual and other civil obligations. The reason for this protection was to counter-act the harsh effects of laws that no longer exist: Debtor's prisons where people were jailed simply because they owed someone else money - debts that in many instances were by law passed down to the debtor's children. Even though these practices disappeared long ago these fictional creatures have remained and thrived. Today's corporate executives, in particular those of large, publicly traded corporations, exercise a degree of power undreamed of even a few decades ago, and an insulation from personal responsibility that was never, ever intended. This separation of obligation from the exercise of power, of responsibility from reward, is becoming lethal to what is left of our democracy.
The Toyota case is illustrative of this separation at its most extreme: The assistant director of the FBI, announcing a deal the Justice Department had reached with Toyota for it to pay a large penalty in exchange for not being prosecuted, expressed his "outrage" at the numerous crimes committed by "Toyota" - as if a legal fiction could commit real crimes. He never once named any individual within the company who had made the decisions. In effect, corporate money was used to buy off the government to protect the flesh and blood real people who had committed the crimes - while our government representatives declared victory! As an example of how far our alleged rule-of-law democracy has become divorced from reality, there was not a peep of objection from anyone either within our government or the mainstream media.
Is it merely coincidence that both Washington and all state capitals are bulging with highly paid corporate lobbyists and that 90% of U.S. media is owned by 6 corporations?
We're being trampled by the herd our elites pretend not to see
This abuse of the corporate existence has been the proverbial elephant in the living room which everyone has been stretching their necks to see around. In fact, it is a very large herd of elephants since corporations are so ubiquitous there is a sense that they have always been with us and we hardly stop to think about them. But we better start thinking about them, and hard, because they are the vehicle through which so many public evils have flowed.
One thing that Bernie Sanders has accomplished regardless of the outcome of this year's elections is to have put his biggest issue front and center for public focus and debate: the ever increasing gross disparity in wealth and income in this country. Former Secretary of Labor (1993-1997) Robert Reich has been very publicly pushing this same issue for years. But neither he nor Reich have brought into focus the principal source of this problem and so many others which they also champion, such as: The corrosive effect of money in politics; the suppression of voting rights through various means; global warming and the degradation of our environment, mainly through the carbon fuels industry; the spectacular decline in our public education system.
One way or another, all of these problems go back to one source: Abuse of the corporate existence, which has been substantially aided and abetted by a long line of very bad judicial decisions with the U.S. Supreme Court leading the way. This started in the late 19th century when that court held that the "full faith and credit" clause of the Constitution compelled each state to recognize whatever fictional persons were created by the laws of any other state. Numerous decisions relating to corporations followed and reached the nadir of absurdity in the recent Citizens United and Hobby Lobby cases. In these latter two decisions the five member majority twisted corporate law concepts into a pretzel: The whole point of a corporation is that its existence is completely separate and apart from its owners and that its executives are merely its agents; but to reach the result they did, they effectively ignored the corporate existence by finding that the rights of a corporation's owners magically flowed through the corporate fiction, and that therefore the corporation had the constitutional rights of its owners. The late Justice Scalia wrote in Citizens United that men did not lose their constitutional rights "merely because they do business as a corporation." The grotesqueness of his logic is breathtaking: Those "men" get all the rights of real people by and through a corporation while that same corporation insulates them from any responsibility in the exercise of those rights. He let the highly privileged and compensated have their cake and eat it too. And to add insult to injury, they also effectively held that money equals speech under the First Amendment - a malignantly congruent concept since it follows the corporate idea of voting instead of the democratic: Not "one person, one vote" but "one share, one vote." He with the most shares wins. Thus, corporations have a First Amendment right to freedom of speech and can spend as much corporate money as its executives choose to influence public elections.
President Theodore Roosevelt would probably have challenged Nino Scalia to a duel of honor on behalf of the American people. Roosevelt saw the growing menace of the corporate existence quite clearly: Over a century ago he observed that “the great corporations… are the creatures of the State, and the State not only has the right to control them, but it is in duty bound to control them…” As a consequence he proposed the establishment of a federal Department of Corporations which would have prevented many of the present abuses, beginning with effectively preempting state laws governing corporations, thereby ending the now standard corporate practice of playing one state against another for its business causing the most financially desperate states to lower their standards the most. And they are now playing this game on an international level, with the knowing participation of governments, through "trade agreements" they substantially drafted in secret such as NAFTA and the pending TPP.
This is how and why our government has been for sale. The corporate form, coupled with the public equity markets (principally the stock exchanges) allows the accumulation of a huge amount of wealth which in turn is controlled by a very small number of individuals - the board of directors and the executives they appoint. It is a very small oligarchy which pursues its own narrow interests at the expense of the public by using other peoples' money to buy as much influence as they can — all while patting each other on the back and awarding themselves huge amounts of compensation and financial protections they otherwise deny to their respective corporations' more lowly employees. And in the vast majority of large, publicly traded corporations, these directors and executives did not create the company but are in reality merely managers. By any reasonable sense of the concept "earned", they haven't come anywhere close to earning the power and financial rewards they have granted themselves.
We don't have to put up with this
I challenge anyone to show in any generally recognized authoritative text a recognition of fundamental rights for corporations or any fundamental right to do business as a corporation. You choose: Torah, Christian Bible, Quran, Upanishads, Bhagavad-Gita, Magna Carta, Roman law, U.S. Constitution, Declaration of Independence . Such rights do not exist now nor have they ever. So the first thing to do is to recognize a simple truism: Doing business as a corporation is a privilege, not a right. It is a gift of the legislature - meaning, our democratic representatives - and as such what a corporation can and cannot do is strictly up to the legislatures, within the confines of the Constitution of the United States and the various state constitutions.
Second, we need to demand that our law enforcement agencies investigate and prosecute the real live human beings who commit the crimes we presently, and wrongfully, attribute to corporations. A legal fiction can only commit fictional crimes. Real crimes are committed by real people. There is no law anywhere that says a crime committed through a corporation insulates the people within the corporation who made those decisions from criminal responsibility. So stop punishing pieces of paper and go after the culpable: Give us their names and faces and publicly prosecute them. This alone will go a long way in insuring more responsible "corporate" behavior by imposing real obligations and accountability on the real people who exercise power and authority. And as to the corporations the guilty directed, make the penalties real: Not a dollar amount which can be shrugged off, but a percentage of net worth or gross income. That also will get the boards' and executives' attention and change their behavior for the better.
Third, and unfortunately, due to the ridiculous decisions in Citizens United and Hobby Lobby, we need to amend the Constitution so that it expressly states that "for purposes of this Constitution corporations or any other kind of fictional entity are not persons entitled to any of the rights enumerated herein nor rights not otherwise enumerated but reserved to the people;" and that "money is not speech." That would then allow numerous other reforms:
● The outlawing of paid-for lobbyists for corporations; in particular, a prohibition on former elected officials receiving any kind of compensation for selling their influence with elected and appointed officials. The purpose of compensated lobbying is substantially to deform the public interest in favor of narrow private interests, and as such it is per se unethical. When it is done by formerly elected officials, it is an act of treason.
● A complete prohibition on corporations spending any money on elections or political campaigns.
● The establishment of a federal law preempting all contrary state laws to govern all publicly traded corporations and all private corporations above a statutorily defined size (because there is no need for the federal government to regulate the millions of small, mom and pop corporations). Federal regulation could, and should, include such matters as (to name but a few):
- limiting the pay of executives to a fixed percentage of the lowest salaried employee;
- the elimination of executive bonuses, stock options, etc. for a two or more year period after more than, say, 2% of corporate employees are laid off;
- limiting "golden parachutes" to a proportion of the average retirement packages of other employees;
- changes in corporate bankruptcy laws so that it is no longer a standard business tool whereby the corporation can eliminate its obligations to employees and retirees;
- providing an "alternative minimum tax" for corporations at 15%;
- real penalties for any attempt to off-shore income and thereby avoid tax;
- limitations on what a corporation can require in employee contracts, such as overly broad non-disclosure and confidentiality provisions whose purpose is to silence the very people who are in the best position to reveal corporate abuses;
- limitations on the sealing of court records in litigation and settlements so that the truth discovered and revealed through the litigation process is no longer hidden from public view and the people who are in the best position to reveal the real facts are no longer silenced.
Let's get the elephants out of the living room and corral them before they trample our democracy to death.