Wednesday, December 20, 2006

We Give Corporations the Power and the Money

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For decades, the U.S. mainstream environmental movement has used a strategy of regulatory and administrative law remedies to address the litany of environmental harms caused by industrial agriculture. Environmental organizations have focused campaign attention on arguments with corporations over how many parts per billion of a particular pesticide can be put in our rivers, how much of our public lands can be exploited, or how many individuals of a particular species it is acceptable to kill. The arenas of these struggles have been the courts and regulatory agencies, with occasional passage of legislation that restricts corporate harms.

What have we won? Indeed, the environmental movement has won some major legislative victories: the National Environmental Protection Act, an Endangered Species Act, a Clean Water Act, a Clean Air Act, and dozens of other laws that limit the damage that corporate agriculture and industrial society in general can do to nature and to people. In addition, the movement has created hundreds of national and state regulations and administrative rules that limit pesticide use, restrict farming near riparian corridors, require soil conservation efforts by farmers, and so on.
However, an honest assessment of the overall effectiveness of this strategy of regulating corporate harms must conclude that it is a limited strategy and that it has ultimately licensed an unsustainable and unacceptable level of ecological destruction and marginalized our most fundamental concerns. We have been fighting corporate assaults against nature timber harvest plan by timber harvest plan; factory farm by factory farm; dying stream by dying stream. We are constantly being called to fight against new and more virulent crises. If we win one, there is little time to celebrate because there are many more crises created by corporate agribusiness every day. Corporations have grown and become far more powerful in this regulatory environment. In short, corporations have successfully framed both the arena of struggle and the terms of the debate, and have limited us to incremental compromises.

Consider the national struggle around the new federal organic standards at the end of the 1990s. Congress appointed a blue-ribbon panel — a diverse committee of organic farmers, nutritionists, scientists, product manufacturers, and retailers — to propose a new law. After several years of research and hearings, the panel presented a carefully considered, comprehensive set of recommendations to the U.S. Department of Agriculture (USDA). In 1997, however, the USDA, on Democratic President Bill Clinton’s watch, rejected those recommendations and instead issued to the nation draft organic standards obviously heavily influenced by corporate agribusiness and “life science” corporations. This proposal potentially allowed into the “organic” definition products with genetically engineered ingredients, food grown with toxic sewage sludge used as fertilizer, and products that had been irradiated. It was a slap in the face to the organic movement’s hard work and to the trust it had placed in the regulatory system.

It then took almost two years of mass mobilization, including organizing the writing of a record 275,000 letters to the USDA, to fight industrial agriculture’s attempted takeover of organic. We finally exposed the hypocrisy and shamed the USDA into retreating from the worst aspects of their industrial agriculture agenda for organics. Did we “win”? What might we have done for those two years of struggle if we had not had to fight that corporate takeover? What could we have done with 275,000 people mobilized proactively to further the sustainable agriculture agenda instead of having to drop everything and react to the attack on organics?


The real struggle around the national organic standards was not over the federal definition of organic, important as that is. The real struggle was about public, democratic decision making versus private, corporate decision making on issues of food and agriculture.

This is one major case — and there are hundreds like it — where private capital, amassed as the wealth of multinational corporations, exerted much more decision-making authority than the people of this country.

Another example of corporate decision making usurping the public democratic process can be seen in the current struggle over genetically engineered foods. In the United States, the life sciences corporations have succeeded in setting the terms of the debate. The corporate media have framed the struggle as one of “right to know” and of bad science versus good science. We are told that we are in a grand battle over whether or not to label genetically engineered foods. In fact, if we “win” labeling — just another regulatory “fix” — we are actually giving license to the ongoing harm.
The real issue we should be fighting around genetic engineering is the patenting of life and the consolidation of the ownership of all the major food and medicinal crop genomes into the hands of a few multinational corporations. The real issue with genetic engineering is: Who is making this fundamental decision? Who is going to decide what we ought to do with the most consequential and potentially dangerous technology since the splitting of the atom: corporations and “the free market” or people and democratic process?

These are not just cases of putting profit over people and ecosystems, but of governments and courts legally defending corporate decisions over democratic decision making, and of corporate private-property rights being ruled as supreme over individual or communal property, human and environmental rights.

The big questions here are (1) what the appropriate role of institutions of economic enterprise in a democratic society is; and (2) what economic and cultural decision making should be public and what should be private.


What happens when we try to reassert democratic, public control over major economic decisions? What happens when we seek to halt corporate abuses or insist upon the “precautionary principle,” the “polluter pays principle,” or even the “right to know”? Corporate attorneys (and they are plentiful) respond with legal defenses based on the fiction that a corporation is a legal “person” in terms of constitutional protections. They use the interstate commerce clause of the U.S. Constitution to assert that states, counties, and cities have no authority to restrict interstate and transnational commerce. They assert for the corporation the property rights, due process, and equal protection guarantees meant in the Constitution for real, human persons.

They have used Fourth Amendment constitutional protections (intended to safeguard
natural persons against unreasonable search and seizure by the state) to limit environmental, health, and safety inspectors from investigating conditions in industrial farms and factories.

They have claimed, and legally achieved, First Amendment free speech protection as a way to overturn public initiatives and legislation aimed at limiting billboards, banning advertising in schools, and controlling the information agenda of our public airwaves. They have won major U.S. Supreme Court rulings equating financial contributions to political campaigns and political ads with political free speech, disabling “we the people” from keeping corporate money out of our elections. Once the corporations strategically acquired personhood status, Philip Morris (Corporation) and your grandmother, for example, are both treated as people, with the same constitutionally protected rights.

While real people die, their wealth is subject to estate and inheritance taxes; “corporate persons” live forever. Corporations also receive extensive limited liability, making it nearly impossible to imprison individual corporate managers, board members, or shareholders for far worse crimes than those that often result in incarceration of real human persons. If a real person steals a motorcycle for his/her third felony (“third strike”), California mandates a sentence of 25 years to life in prison. But if, for example, the UNOCAL Corporation, based in California, is convicted for the 15th time for breaking the law (as it has been), it suffers a very small fine and goes on with business as usual.

Under World Trade Organization (WTO) rules, this logic of corporate personhood is extended to its grandest illogical conclusion. Multinational corporations can sue nations for “lost future profits” if a country limits that corporation’s “right” to extract, exploit, and pollute more than the lowest common denominator, or “harmonization” of international WTO deregulation.

It is very important to remember that nearly all of the rights of natural persons, which corporations now enjoy, were handed to them by courts, not legislatures. Most of these rights were neither granted in the U.S. Constitution nor ever voted on by the people.


The first giant U.S. corporations were the banks and railroads that emerged after the Civil War. They set out for a decades-long court shopping spree, biding their time to find the right court, packed with the right elite judges, to give them the rulings that they needed to continue the march toward full legal personhood. They followed with a strategy of rewriting state constitutions and state corporate codes to further set themselves apart from the direct control of the people.

In the 135 years since the Civil War, the corporate class has succeeded in constructing a corporate form, empowered with the rights of natural persons, that is essentially outside the control of the sovereign people. While they have been strategically molding law and culture to favor their control of economic and governmental decision making, “we the people” have been struggling to ensure that all real people are legal persons, fully protected by the U.S. Constitution. In a nation that was founded with only white, land-owning males defined as “persons,” people of conscience have struggled mightily to bring African Americans, women, Native Americans, Asians, debtors, men without property, and all other classes of human beings to full personhood at the roundtable of democratic sovereignty. We are still struggling to insure that gays and lesbians, and new immigrants, have full rights. And we are working for the day when the flora and fauna, ecosystems, and the very natural processes that insure life for all will be fully represented at the decision-making table as we steward our common wealth.

Corporations, on the other hand, have no business being present at that decision-making table. Or rather, they only have business. A corporation has concern for only growth and profit. That is what it is set up to do. When “we the people” sit down to discuss how we can develop a sustainable agriculture that strengthens local, diverse culture and restores, not degrades, our Mother Earth, the corporations should be out of the room. It is our duty to set the parameters for economic activity. If a corporation does not like our terms, it can disappear — there will be plenty of others willing to do good business on the terms we have defined.

Does this seem too idealistic? It was not so long ago, in nearly every state in the Union that corporations were all given limited charters of incorporation (as opposed to today’s general charters that grant corporations perpetual life). Typically, a manufacturing charter would be limited to 40 years, a mining charter to 50 years, and other corporate charters to 30 years. After that, the corporation was dissolved, or the corporate officers could reapply for a new charter but would then receive public scrutiny of their past actions. The question would be: “Have they served the interests of the people of our state?” If not, why would we give them a new charter to continue to harm the land or the people?

Under the Wisconsin State constitution until 1954, for example, a corporation could not own excess property outside the direct use for the purpose of their charter. The corporation could not own another corporation. The corporation existed for a limited life span, written into the charter. And it was a felony for a corporation to give money to a political campaign.

Corporations are chartered, given the basic license to do business, by the states. A typical early attitude toward charter incorporation was stated in 1834 by the Pennsylvania legislature: “A corporation in law is just what the incorporating act makes it. It is the creature of the law and may be molded to any shape or for any purpose that the Legislature may deem most conducive for the general good.”
Private banking corporations were banned in many states until the Civil War era. That makes great sense. Think about it: Why would we allow a few private individuals through private banks to amass unprecedented wealth from the interest on the collective capital of all of us? Why would we turn over the decision-making authority on where to invest our collective wealth to the self-interests of the industrial elites? Further, banks in those days were forbidden to engage in trade and could not merge.


When we speak of corporations, we must make a distinction between private corporations and public corporations; between small, community-based corporations and multinational corporations; and between for-profit corporations and not-for-profit corporations. Small, family, or community-scale corporations are most often privately held and have much more flexibility in how they do business (for example, not being forced to yield high quarterly profits — no matter the environmental or social cost — for shareholders). The corporate owners and managers most often live locally, where the company does its work, and the surrounding community can more easily hold them accountable to local democratic decision making.

These corporations are more likely to be of a human scale at which each worker can have a personal stake in the business and a relationship with the owner and with the community. Conversely, the largest of the multinational corporations have gross net income greater than many nation states and are at such an inhuman scale that “enlightened” managers can rarely temper the giant organization’s insatiable urge toward growth and short-term economic returns.

For decades, many environmentalists, ecological farming advocates, and other social movement activists have focused on campaigns for “corporate responsibility” — trying to convince the leaders of huge, polluting companies to be “better corporate citizens.” But trying to change the hearts of CEOs very rarely works. Courts often rule that “shareholder rights” to maximum profits limit management’s prerogative to do the “right thing,” like stopping the factory farm from polluting the river, or pulling the business out of Burma, or building a child-care center for employees.
When a multinational corporation signs some “voluntary code of conduct” it usually results in the movement’s stopping a boycott campaign and celebrating the corporation as a “model good citizen.” Yet there often comes the day come when the corporation’s managers decide they can no longer afford to abide by the codes. They were only voluntary codes, after all. We then have to start the campaign all over again.

Corporate public relations departments long ago learned that it pays well to use a small fraction of the surplus wealth earned from overcharging us on whatever product or service they sell to blast us with propaganda. They tell us that Chevron “cares,” that Weyerhauser is “the tree planting company,” and that Archer Daniels Midland will “feed a hungry world.” Further, some of the worst criminal corporations and corporate officers win local or national “good citizen” awards for donating small fragments of our surplus wealth (that they hoard) to the symphony or the Girl Scouts, or by donating their corporate logo–laden goods to our public schools. Corporate foundations also fund many of the largest environmental, civil rights, arts, and other groups in the nation.

The result of this “corporate philanthropy” is that it gives control of much of our national culture and social movement agenda to these corporations through their decisions on which groups receive grants (and thus have their campaigns reach the public) and which groups die on the vine for lack of funding.


With regard to food and agriculture, the multinational corporations’ strategy has been to establish the unchallengeable right to their control over the food system. They have done this through monopolization by strategic underpricing of smaller-scale competition and by developing a revolving door of corruption between corporate management and the very government agencies charged with enforcing regulations. Through vertical integration — from financing to seed patents to value-added products to distribution — they have cultivated farmer dependency on credit, seed, chemical input, and farmgate pricing worldwide.

They have successfully appropriated much of our public educational and research resources, crafting “private-public partnerships” with universities, governments, and even the United Nations. Through TRIPS (the Agreement on Trade-Related Aspects of Intellectual Property Rights) and the WTO, multinational corporations have successfully gained control of intellectual property rights, international trade regulation, and dispute resolution.

To fully control the global food system, the global corporations must continue to colonize and homogenize the remaining independent and resistant cultures around the world. Over many decades of trial and error, they have developed enough institutional memory to utilize — even create — regulatory structures that insure that the economic bottom will not drop so low on any potentially resisting people that they will, as Marx put it, “have nothing to lose but their chains” and rise up in revolt.


The fight against corporate chemical-industrial agriculture, against corporate
control of the global food system, against corporate ownership of life, and against corporate control of economic decision making is the fight on this planet. All the cultures of the world, and all ecosystems, have a common interest in replacing corporate rule with democratic rule in service of diversity, cooperation, sustainability, and the common wealth.

To win this fight — much of it needing to be fought in the United States, which is the source of so much of the corporate problem — our movements must rapidly evolve new strategies. Specifically, we must do three kinds of activism at once.

1. Fight Fires
For the past 30 years, our conservation and environmental movements have been focused on “fighting fires.” We have built ten thousand local or national groups to fight ten thousand corporate assaults on nature and people. David Brower often said that “there are few real environmental victories, only holding actions.” He meant that, for example, after a five-year campaign using much of our local movement time and resources, we may stop a clear-cut or new dam, but the corporation will be back to take the trees or the river as soon as it can maneuver a change of judge or politician, or a lull in our vigilance. We have to fight them off forever. They just have to win once.

Of course, we have to fight fires. When the “Hogs ‘R’ Us Corporation” comes to put a 2,500-hog farm on the banks of our “Salmon River,” we must mobilize and put our all into the campaign. We have no choice. But this form of struggle alone will rarely have an effect on corporate destruction everywhere else in the world and may just chase the corporation (and the problem) to another community.

2. Create Alternatives

The ecological farming movement has grown steadily for the past 30 years, but we are being far outpaced by the multinational corporations’ destruction of small-scale and traditional farming in the United States and around the world. We must, however, provide an articulated, accessible platform of specific vision and practices that reflect the values of ecological, economic, and cultural sustainability. We have many examples of how to do agriculture right; they are just dwarfed by the number and scale of the corporate wrongs.

Our alternatives must be based on farmland and watershed protection and restoration.
Our vision includes restoring polycultural diversity in farming systems and appropriate scale in agriculture. We seek local, national, and international economic policies that reward and subsidize sustainable farming and business practices, and punish, tax, and disallow unsustainable farming and business practices. We must integrate and reward economically and socially just farm-labor practices. Our vision for agriculture must highlight the enhancement of wildlife habitat and wildlife corridors, and we must work quickly toward the elimination of synthetic insecticides, fungicides, and herbicides.

But as we work to build alternatives and as we become effective at modeling “how it
might be,” we must be clear that the corporations can be and always are ruthless in buying out, making illegal, marginalizing, or destroying people’s most successful efforts at getting off their treadmill.

3. Dismantle the Mechanisms of Corporate Rule

A group of people was bathing by a river. One saw a baby floating by and yelled for the others to help pull it out. As they were giving resuscitation to the baby on the riverside, they spotted another floating downstream, then another, then another . . . They were all working feverishly to rescue each new baby that floated by. This went on for some time, until someone thought to go upstream and stop the people who were throwing babies into the river. While we must fight the fires (save the babies) that get forced upon us, we cannot confuse reaction to a problem with proactive strategy. And while we must build sustainable alternatives, we will create a safe and open space for sustainable practices to become the norm only if we dismantle the mechanisms of corporate rule that stand in our way. We need to focus on defining the authority — and the legal limits to that authority — that corporations are allowed. We need to stop yielding to them the rights of personhood while we try to regulate their harms from the edges.

Our movement is full of activists who know all about the legal maximum for chemical pesticide applications, the details of timber harvest plans, and how to file injunctions to stop a polluting factory farm. But how many of us have read our state constitution or corporations code, or know the last time the corporations rewrote key clauses of either of those documents? While we have become experts at the game of fighting to regulate corporate destruction, the corporations have been writing and rewriting the rules of the game.

We must focus on new strategies that change the ground rules on who is in charge, to reclaim our constitutional right to sovereignty over economic activity. We must choose appropriate arenas of struggle. The really meaningful fights that will win a reality of sustainable agriculture everywhere are over what we put in our state constitutions, corporate codes, and corporate charters.

Part of developing new strategies is to pay closer attention to the language we use. The language of our struggle is important because it is how we cultivate literacy among the population: ecological literacy, watershed literacy, economic literacy, global literacy, and democratic literacy.

It took us a decade in the antinuclear movement to move from talking about “safer nukes” to calling clearly for “no nukes.” The civil rights movement evolved its language from calling for “desegregation” to demanding “equal rights.” Importantly, our current movement language has been changing from talking about “corporate responsibility” to “anti-corporate” and “anti-globalization.” Further, we now hear in the streets the call for “dismantling corporate rule.” Our new language juxtaposes corporate grabs for “intellectual property patent rights” for seeds and plant genomes with our clarity about “collective heritage,” “traditional, communal property rights,” and “the rights of nature.”


We can get considerable mileage by asking the refrain, “By what authority?” By what authority do large corporations wield so much power over nature, our lives, cultures, and economies? “By what authority?” or “Quo warranto?” is also a legal writ. In state constitutional law, when a corporation is acting outside of its charter, we can file a motion in court that demands to know by what authority this corporation poisons our rivers or steals our seeds. We demand a ruling of Ultra vires — or “beyond its authority” — and the revocation of that corporation’s charter.

In 1998, such a charter revocation was initiated in New York State, under Republican Attorney General Dennis Vacco. The state sought to revoke the charters of two nonprofit public relations and lobbying groups for the tobacco industry — the Tobacco Institute and the Council for Tobacco Research. Before the court could rule, and as a part of the Master Settlement Agreement against tobacco companies, the lobby groups voluntarily forfeited their charters. Their assets were distributed to the state’s antismoking education fund, and their documents and files to the School of Public Health at the State University of New York.

In the 1870s to 1890s, American farmers built an anti-corporate movement that was
clear about what it wanted. The Populists, Knights of Labor, Greenbacks, Alliance, and even the Grange worked to oppose the monopolizing consolidation of the banks and railroads. They understood that what was at stake was the control of their independence, their culture, and their decision making power around prices and distribution. While not an overtly conservation-minded movement, these groups struggled to maintain control of their direct relationship to and stewardship of the land. They also understood the importance of who controls currency policy and access to credit. They fought to keep farming as the foundation of rural culture and local democracy — much like the agrarian democracy that Thomas Jefferson had envisioned.
We need to revive the passion and clear anti-corporate, pro-democratic focus of that populist movement. Times have certainly changed, but the fundamental struggle against rule by large corporations is much the same. Any successful national and international movement will have to be based in strong local movements that have a clear sense of strategy and the courage to stay strong and focused as the corporations fight back.

In the United States it can often seem that we have no chance to turn back corporate rule. To get perspective and develop strategies, we must have the wisdom to learn from the still intact cultures and movements of resistance in many other parts of the world, where communities have not yet succumbed to monoculture and corporatization. Huge, radical anti-corporate movements in Mexico, India, France, and many other countries can give us inspiration and ideas. The fact is, however, that we in the United States have the responsibility to take the lead in new campaigns to dismantle the mechanisms of corporate rule, for it is in our nation that so many of the world’s most criminal and destructive corporations are incorporated and headquartered.

Our best strategy is to act at the local and state levels, at the scale where we can
possibly win initial campaigns. We need to pass local and state laws that declare our sovereignty over economic decision making in our communities and in our states. To do this, we will need to choose the fights that can organize a voting majority to democratically declare our decision. There is no shortcut to get this done. This is about community organizing, about motivating people to take history into their own hands and create their own destiny.

However, when we pass a local or state law that bans or restricts corporate control of our land and culture, we will certainly face intense opposition from the corporations we seek to contain. The corporate lawyers will argue in courts that we are violating their “corporate free speech,” their “private property rights,” their “intellectual property rights,” their “right to do business,” and their “right to future profits.” They will say our new laws in favor of local culture and sustainable agriculture violate the commerce, the equal protection, and the due process clauses of the U.S. Constitution, and they will seek a federal court injunction against our democratic decision. They will say our local laws restricting corporate exploitation of soil, water, air, people, and culture are “unfair trade barriers,” and they will seek a ruling from the secret WTO panel so they can threaten to crush us with trade sanctions.

Well, let’s bring on those fights! We need to create crises of jurisdiction: direct clashes between laws that people of a local or state jurisdiction have just democratically debated and passed and the ruling of some international tribunal of corporate attorneys who tell us, “You don’t have authority to decide on matters of the market — that’s for the corporations to decide.” It will be these crises of jurisdiction that will mobilize people to resist such tyranny.

There are dozens of ways we can begin dismantling the mechanisms of corporate rule from the local level on up. Some of these strategies have been tried and are holding up against corporate counterattack; others are ideas waiting to be tried for the first time. Among them: (1) Amend state constitutions by inserting defining language that will declare, for example, that a corporation does not have the constitutional rights of a person, that patents on life are not allowed, and that the polluter pays. (2) Amend state constitutions and state corporation codes to revive restrictions on corporate charters, declaring (among other things) that it is a felony for corporate officers of a corporation to finance political campaigns or try to influence elections; that corporate charters are for a limited number of years; that corporations cannot own property outside the specific needs of the business they are chartered to do; and that corporations cannot own other corporations. (3) Ban corporate ownership of farmland, as has been done at the state level through constitutional amendment or legislation in Nebraska, South Dakota, and seven other U.S. states. (4) Attack so-called “corporate free speech” head-on at the local level — at school boards, ban the use of corporate logos on campus; at city or county council, ban billboards and ban corporations from running political ads. (5) Disallow criminal corporations from doing business with a jurisdiction: prohibit “repeat offender” corporations, those with multiple criminal convictions, from conducting business within a city or county jurisdiction (i.e., corporate “three strikes” laws); and initiate Quo warranto charter revocation proceedings against the worst criminal corporations.

All of these practical strategies require substantial campaigns and a lot of strategic forethought. When we move to disable the global corporate system, we had better have a well thought-out strategy! In this corporatized culture that steers all radical thought toward short-term compromises, we need to revive a sense of long-term struggle. We are not going to “win” in a few years. As every branch of our environmental and social justice movements must continue to “fight fires” and create sustainable alternatives, we each must also dedicate a substantial part of our day-to-day and long-term work to these new strategies that aim to dismantle the mechanisms of corporate rule. We do this for our ancestors and our descendants, and we do this for our Mother Earth.

[I wish I had written the above paper by Dave Henson, Director of the Occidental Arts and Ecology Center. But since I didn't, the second best thing to do is publish it on my blog. Every person in the world should read this. Pass it on!]

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Dave Henson is the Director of the Occidental Arts and Ecology Center (OAEC), an 80-acre farm, ecology education center and intentional community in Northern California. OAEC’s programs work in support of ecological agriculture, sustainable food systems, and democratic communities. The Agricultural Biodiversity Program at OAEC maintains and propagates a collection of some 3000 varieties of heirloom annual vegetables, as well as edible, medicinal and ornamental perennials.
An environmental and social justice activist for over 20 years, Dave has held staff positions with the Highlander Research and Education Center, the National Toxics Campaign, Greenpeace, and the Earth Island Institute. Dave is also a principal member of the Program on Corporations, Law and Democracy; serves on the steering committees of the national Wild Farm Alliance and the Sonoma County No Spray Action Network; and is active regionally organizing against genetically engineered crops. Dave also serves as an organizer trainer and organizational development and strategic planning consultant to community-based environmental, social justice, and farm groups.

Many of the ideas expressed in this paper have germinated through the research and analysis of the members of the Program on Corporations, Law and Democracy (POCLAD). More information on POCLAD, including subscribing to POCLAD’s regular publication By What Authority can be seen at or by calling the POCLAD office at (508) 398-1145.

For more information on the Occidental Arts and Ecology Center (OAEC) , including securing a copy of OAEC’s beautiful annual catalogue, see, or call the OAEC office at (707) 874-1557. Dave Henson can be reached at, or at (707) 874-1557 x204.

The book Fatal Harvest will be available in May, 2002. An education and organizing project called Organic and Beyond Campaign is involving the organizations of the several dozen authors represented in the book from around the U.S. and abroad. For more information on the Organic and Beyond Campaign, contact the Center for Food Safety at 800-600-6664.