Editorial

Natural vs. Artificial "Persons"

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 benefits.

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.

For example:

• 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' potential size.
• 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 efforts.

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.

In our annual Ten Worst Corporations of the Year feature, we try to highlight in stark terms 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.