Life Begins at Incorporation
Jonathan Frieman had been driving down Highway 101’s carpool lane for years hoping to get pulled over. When he finally was, in 2012, he was ticketed $478 for driving solo. He maintained he had every right in the world to be in the carpool lane since there was another person with him: articles of incorporation for his company, the JoMiJo Foundation. Marin County’s Traffic Court did not agree. If they had found that his corporation was a person, however, another ticket would have been in order. He forgot to buckle up JoMiJo.
Corporations are people on paper, and they have a lot more say over things than those of us who are old-fashioned people with our lousy “bodies.” In 2010, the Supreme Court’s decision in the Citizens United case essentially ruled that money is speech, knocking down limits on corporate spending in elections. I’m guessing you don’t have as much money as an oil company, but that’s okay—the oil company worked its way up from humble origins and has a lot to say about politics.
“Corporations are people, my friend,” Mitt Romney famously told a man at the Iowa State Fair in 2011. “Everything corporations earn ultimately goes to people. Where do you think it goes?” (“The Cayman Islands” would have been a good response.) Romney was quickly savaged for his tone-deaf devotion to corporate personhood, but his opinions didn’t differ in any substantial way from anyone else in national politics. Democrats who loudly proclaimed the Citizens United decisions to be the End of Fairness didn’t seem to have a problem accepting help from the new shady groups it allowed to form.
Having a business be a legal entity makes perfect sense. That legal presence gives the company a standing that can be challenged in court. You can’t file a lawsuit against, say, a piece of pie for not being delicious enough. (Not that I’ve ever had this problem.) But if a pie company’s delicious goods cause cancer, perhaps you should have recourse. Where the problem comes in is giving corporations constitutional rights, an idea conceived of long ago that has reached full maturity in recent decades.
In 1816, the Supreme Court determined that corporations had rights that couldn’t be taken away by the state. But it wasn’t until the Fourteenth Amendment was passed that the corporate civil rights movement hit the big time. That amendment, you’ll recall, was passed after the Civil War and famously ensured that people of all races have citizenship and equal protection under the law. The Supreme Court didn’t get around to deciding black people could marry white people for almost another hundred years, but in 1886 they eagerly established corporations as protected “persons” in Santa Clara County v. Southern Pacific Railroad. This was further ensconced into law two years later in Silver Mining Co. v. Pennsylvania, and with that, the American Free Enterprise System was off to a great start!
Since then, there have been a steady stream of cases upholding and building on these decisions, not to mention laws and tax codes that make life as a corporation pretty breezy. Corporations have argued before courts—successfully—that they have rights to free speech, a Fourth Amendment right to privacy, and are protected from discrimination by, I guess, people who are racist against corporations.
In 1933, J.C. Penney successfully won a case against Florida communities trying to keep out chain stores on grounds that they faced discrimination. In 2009, J.C. Penney paid out $50,000 to a black woman in a racial discrimination lawsuit after their salon told her: “We don’t do African American hair.” I guess she knows how that poor company must have felt back in the day.
Today, corporation-Americans can do more than flesh-Americans in some respects. A corporation-American can jump on a plane and establish itself in another country far easier than you can. They can cross international borders with ease, dump unlimited amounts of cash into political campaigns, and even pollute water and air. You yourself can’t go around belching tons of toxic waste into the atmosphere; your neighbors would complain. But your company can—for a profit!
Corporations get to do all the cool stuff without the legal and corporeal downsides that having a body entails. Deplorable businesses will never be strapped to a gurney and executed by the state like many people who can’t afford a good lawyer. The worst that could happen to a corporation-American is the government could revoke their charter.
It didn’t even seem this bad in a not-so-long-ago time called the nineties. Remember when sports arenas were all named after local oligarchs and industry barons? At some point they figured out they could relinquish a sliver of narcissism and make even more money by releasing the naming rights to corporations. Now we have exciting names like Verizon Arena, Pepsi Center, and JeldWen Field.
In early 2013, Florida Atlantic University sold the naming rights to their sports stadium for $6 million. It will now have the eloquent name of GEO Group Stadium, after GEO Group Inc., the second-largest private prison company in America. Imprisoning people—what an admirable business strategy for a school to applaud!
There is something beautiful about that to me. Some days, it feels like we have reached the pinnacle of capitalism. But I shouldn’t rush to judgment. I’m sure new offensive heights can be attained.
As the idea of what a corporation is and should be continues to expand, I wouldn’t be surprised if one gets elected president someday. I just hope it’s a decent one, like Bounty paper towels, instead of an evil dick like Marlboro. I bet Bounty would make an okay president.
We do sort of treat corporations as people-like now, which is a little creepy. We love them, are loyal to them, and if they break our trust we take our business to one who understands our needs better. They’re like friends and lovers, except they are electronics companies and brands of flavor-dusted potato chips.
When the Cinemark company reopened its theatre in Aurora, Colorado, after the 2012 mass shooting, it invited the relatives of slain victims and promised them free tickets. Everyone fumed: pretty rude behavior from Cinemark. Apologize now.
But doesn’t the premise that Cinemark can express any proper sentiments about murder accept that the company is anything more than a legal construct that funnels money to shareholders via movie ticket sales? Cinemark can say “We are now showing Django Unchained” and “We are open from 9:30 a.m. to 11:20 p.m. on Wednesday,” but can Mr. Cinemark truly convey any worthwhile feelings on human beings gunned down inside…it? Should we expect it to?
The 2003 documentary The Corporation takes the premise that if corporations are people, then they are diagnosable psychopaths, incapable of feeling guilt, lying with ease, and lacking consideration for the safety of others. When you think about it, they do come off a bit like self-centered assholes without empathy. Sure, sociopaths have a place in society. But it doesn’t seem like a good idea to make that place the tippy top.
America’s founders did see early signs of this crap.
The conception moment of the American Revolution is typically told as an anti-tax tale. The colonists, upset with the Tea Act, threw a fit and tossed some tea into the Boston Harbor. No taxation without representation! But there’s an anti-big-business angle to the story.
Ahem! History books open. The British Crown granted the East India Company a monopoly over tea imports, establishing their right to tax the colonies. Colonists would have to buy this specific tea from this specific company and pay the tax. Funny enough, many members of the British government owned stock in the company, so making the decision to grant it a monopoly was an easy one. This ploy was going to ruin the local economy (the much-loved “small businesses” of future America) and people went appropriately apeshit.
Imagine being forced to buy only Starbucks coffee. There’d be a revolution before the workday even got underway.
One of the key motivators in the birth of our nation was essentially a rebellion against unfair collusion between a giant company and a corrupt government. Maybe one day we’ll get as fed up as the colonists did. Over 200 fiscal years later, the interests of businesses—now deemed people—have our democracy in its death throes. Ah, the circle of life.
This is a chapter from Life Begins At Incorporation, available directly through me, as well as Amazon, Powell’s, and Comixology.
