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Conspiracies of Silence: The Global Settlement and Corporate Power in the USA

by Richard GrossmanProgram on Corporations, Law & Democracy
June 23rd, 1997

My friend the ghost of Tom Paine says that tobacco corporations are fronts for drug dealers that poison and addict people, and sabotage the Constitution. He does not believe that we should allow such corporations to exist. The only conclusion a reasonable Person can come to, he says, is that we should revoke the charters of these corporations, put their executives in jail, and divvy up the assets among their victims.

So why is this point of view barely in sight?

Ah, but isn't an extraordinary educational opportunity unfolding before our eyes? If we can resist the corporate colonization of our minds, we will be able to detect tobacco corporations -- like all, great corporations disguised by elaborate cultural and legal frippery -- exercising the rights and powers of governance.

Tobacco corporations have been shaping our thoughts, aspirations, culture and language, maiming and killing under protection of law, and running our governments for decades.

Sometimes, they are really creative. In 1980, the Philip Morris Corporation invested $60 million in an advertising campaign to celebrate the bicentennial of the Bill of Rights, The corporation presented 600,000 tax deductible dollars to the National Archive so that it could "associate itself -- on television and in print, with the Archives," as Carl Mayer noted. "That one corporation [spent] three times more than the federal government to promote the bicentennial of the Bill of Rights suggests the anniversary's importance to the business community."

In 1987 the Philip Morris Corporation sent out a press kit. "In it," notes Mayer, "was a glossy black brochure. In deep red, on the cover, was a reproduction of the Order of Lenin, the highest honor conferred by the Soviet Union, and the words: 'One world-famous newspaper without cigarette advertising.' Inside was a copy of Pravda." [1]

So what happened last week? Executives of poison manufacturing and selling corporations finally brought the chief law enforcement officers of our states to the table. They defined the language and the framework of negotiation, just as they have defined public debate over tobacco and commercial free speech... just as other corporations have defined transportation, agriculture, forestry, health care AD NAUSEAM.

There's nothing subtle here: offering a little more (taxpayer subsidized) payola, they demanded greater government protection (regulation and restrictions on victims' lawsuits) so they could sell more poisons, keep making great profits and wielding power.

This is what giant corporations DO. It's what their executives and lawyers are lavishly rewarded for doing.

It doesn't matter whether the corporate product is poison, like tobacco or radiation or dioxin, or a necessity like food.

People in previous generations understood. A century ago, the Greenback Labor Party declared: 'Never before in our history have the banks, the land-grant railroads, and other monopolies been more insistent in their demands for further privilege - still more class legislation. In this emergency the dominant parties are arrayed against the people and are the abject tools of the corporate monopolies.' [2]

Historian Jeff Lustig points out that, "The Populists... were not psychologically unbalanced; nor were they overly suspicious. They were voicing a verdict that followed from empirical political analysis... The Farmers' Alliance explained that... Monopoly is wielding a greater power in the government than the people... A Farmers' Alliance newsletter reasoned that the corporation had 'absorbed the liberties of the community and usurped the power of the agency that created it.' Corporate activities, it wrote, had congealed 'individualism' into privilege.' The task ahead was for the community to reabsorb the corporation, 'to merge itself into it.' ...When the Populists indicted monopoly... they asserted the possibility of choice and the existence of alternatives." [3]

There have been some judges who understood the proper relationship between sovereign people and their legal creations in a democracy. "Indeed, it is doubtful if free government can long exist in a country where such enormous amounts of money are ... accumulated in the vaults of corporations, to be used at discretion in controlling the property and business of the country against the interests of the public and that of the people, for the personal gain and aggrandizement of a few individuals," Richardson v. Buhl., 43 N W Rep. 1102 "All experience has shown that large accumulations of property in hands likely to keep it intact for a long period are dangerous to the public weal. Having perpetual succession, any kind of a corporation has peculiar facilities for such accumulation, and most governments have found it necessary to exercise great caution in their grants of corporate powers... Freed, as such bodies are, from the sure bounds to the schemes of individuals -- the grave -- they are able to add field to field, and power to power, until they become entirely too strong for that society which is made up of those whose plans are limited by a single life." Railroad Co. v. Collins, Supreme Court of Georgia, 40 GA 582.

But over the last 150 years, corporate leaders achieved greater power in the government than the people. They bought educational corporations, civic and charitable corporations, scientists, candidates for political office, political parties, government agencies, the press. They persuaded Supreme Court judges to declare that corporate communication is a form of property rights protected by the US Constitution.

Corporate hard work and creativity pay dividends. As Robert Pear wrote in the 6/22/97 Week In Review section of the New York Times: "There has never been a business lobby like Big Tobacco. For decades its clout in Washington and state capitals was legendary, its prowess acknowledged by friend and foe ... Although Big Tobacco has been on the defensive for years, it still has big resources that the anti-smoking forces lack, and need."

Shielded by judges imaginatively interpreting the Constitution (protecting corporate lobbying, corporate campaign contributions, corporate free speech, corporate privacy, corporate managerial prerogative, and denying Bill of Rights protections for corporate employees), a few corporations have been able to frame national debate over tobacco. They've gotten away with murder.

Now, they are moving on to the next phase of their strategy, which in essence is: "OK, federal government, here's a little more grease, safeguard us from the rabble in their states." It does little good to analyze this latest deal point by point because everything about it is off the point, illogical and irrational. The entire process was built upon counter-historical assumptions about the role and nature of corporations in a democracy. The negotiation itself was contrary to the common sense of self-governing people. Its hoopla, rationalizations and fine print are in the language of corporate public relations, which, simply, is the language of lies.

This should come as no surprise: it is quite logical that strategies forged by people and their civic groups suffering under corporate colonization go nowhere. As a result, alas, the notions of corporate responsibility and accountability, of punishing corporations for misconduct, of saving the children from corporate predators, of government regulation, of people's victory, have forever been contaminated.

If we the people are to challenge corporate power, we must challenge the reality that giant corporations have transformed people into consumers. So we will have to create goals, strategies and language of our own. We will need to think like self-governing people. For example:

1. The American Revolution wrested sovereignty from the English monarchy and governing authority from Parliament, vesting both in a new idea called we the people. We the people were supposed to govern ourselves.

2. A minority of property owners were powerful enough to define the majority -- Africans, Native Peoples, women, men without property, debtors -- as non-persons, without legal standing.

3. In this nation, from the beginning, propertied people created corporations. Nonetheless, incorporation was considered a privilege, not a right of would-be incorporators. And corporations were created to perform specific tasks, not "for any legal purpose," like today. Legally, jurisprudentially and historically, corporations were regarded by law and culture as creations of the sovereign people, as subordinate entities.

4. Our history is dominated by whole classes of people struggling across generations to define themselves as legal persons, to become part of the self-governing people. Because of these successful struggles, responsibility for defining business and charitable corporations -- like defining government itself -- is no longer reserved for property owning classes.

5. Conscious, self-governing people define and instruct their legal creations. They do not negotiate. Negotiating with subordinates is an act of weakness, a diversion of civic activity. It jettisons the fundamental strength of we the people: our sovereign authority.

6. Previous generations revoked corporate charters. Attorneys general and judges lived and breathed who fulfilled their constitutional duties. "Corporations may, and often do, exceed their authority where only private rights are affected. When these are adjusted, all mischief ends and all harm is averted. But where the transgression has a wider scope, and threatens the welfare of the people, they may summon the offender to answer for the abuse of its franchise or the violation of its corporate duty." People v. North River Sugar Refining Co., 24 NE 834, 1890, decision of the New York State Court of Appeals revoking the charter of this corporation.

7. We are responsible for making sure that the state -- including its constitutional officers such as attorneys general -- is not complicit in creating institutions that overwhelm the sovereign people. "...the state, by the creation of the artificial person constituting the elements of the combination and failing to limit and restrain their powers, becomes itself the responsible creator, the voluntary cause, of an aggregation of capital." People V. North River Sugar Refining Co.

For well over a century, we the people have been conceding governing powers to the artificial business entities created by a propertied class, and allowing corporations to define not only production and our work but also our constitutional democracy. We have allowed our creations to become our masters, trained ourselves to be grateful, and fallen into conspiracies of silence.

Amidst such silence, this latest corporate bailout is a scream.

[1] Carl Mayer, "Personalizing the Impersonal: Corporations and the Bill of Rights," Hastings Law Journal, Volume 41, March 1990.

[2] R. Jeffrey Lustig, Corporate Liberalism: The Origins of Modern Political Theory, 1890-1920, p. 42.

[3] Ibid, p. 181.

For more information, contact the:

Program on Corporations, Law & Democracy 211.5 Bradford Street Provincetown, MA 02657 Tel: (508) 487-3151