Senator Sheldon Whitehouse Spotlights The Corporate Infiltration of American Democracy in Captured!

 

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The Constitution’s Blind Spot 

AMERICA WAS FOUNDED AS AN EXPERIMENT. It was not an easy one. No one anywhere had successfully created our dream: a popular government, without kings and crowns, without aristocracy and class privileges, and safe from military rule by force of arms. Trusting common people with uncommon power—the power to govern themselves—was the great cause of our liberty. The Founders knew the threats that they were up against. Experienced politicians, they had a keen sense of how easily things could go wrong. They had seen how selfish pressures and popular passions could overwhelm a government, and they knew government power could be captured or perverted to a wrongful purpose. Protecting against these threats, so that a popular government could prevail against them, was the great task of the Constitution. We are all familiar with the renowned system of “checks and balances” the Founders created to preempt the threat that any one branch of government would become too powerful. Yet even with all of the Constitution’s precautions, there was at least one major threat that the Founders failed to foresee. The Founding Fathers were learning on the fly—this truly was an experiment. They had Locke and Montesquieu and other Enlightenment thinkers to give them a general conceptual structure, but their experiment was a more challenging task than penning philosophical principles. They had to adapt those high-minded principles to the pressures of politics and the practicalities of governing. They had to make the theories work amid the dust and drama and passion of real-life politics. This was a new frontier. The Founders’ first effort at a constitution was designed to address the threats to democracy that they perceived. We know what those threats were, because they were the topic of the Federalist Papers. Published in various newspapers in 1787 and 1788 under the pen name “Publius,” the Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay to sell the new constitution to skeptical voters across the colonies. The arguments in the Federalist Papers signal to us the concerns of the time. The predominant concerns were these: 

• how the Constitution would protect the individual from the power of government, 
• how it would protect society from the dangers of faction, and 
• how it would protect the new democracy against the emergence of a new aristocracy or a new royalty. 

When it came into effect in 1789, the Constitution erected its defense against these threats primarily through its careful separation of powers. But the Constitution wasn’t enough. The American people were not satisfied. They wanted still more assurances about their role and rights as citizens of this new Republic. So the Founders went back and drew up the Bill of Rights. The Bill of Rights did two key things: 

• it buttressed the public rights of the Constitution with an array of hard-and-fast individual rights, and 
• it provided specific defenses of those rights in areas such as free speech, criminal process, and access to a jury. Getting this done was a long and exhausting process. 

The Declaration of Independence was signed in 1776; the Bill of Rights wasn’t adopted until 1791. A passionate running dialogue lit up that fifteen-year period—a dialogue among brilliant individual Founders, between rival states, between federalists and anti-federalists, and throughout a new American citizenry. They thought deeply and argued fiercely about this new democratic form of government. And they were proud. Their American achievement reverberated throughout the world. The revolutionary Americans who had pledged “our lives, our fortunes and our sacred honor” to the cause yearned to prove that this experiment was worth all their blood and hope and sacrifice.1 They felt a keen obligation to history to get this right, and getting it right meant building into this new Constitution defenses against all the threats they perceived. They threw their hearts and souls into building those defenses. 

But they overlooked one threat. They overlooked the corporation. At the time, they overlooked it with reason. The first corporations in America bore no resemblance to big, modern, for-profit entities. Originally, incorporated entities were mostly cities, schools, and charities. They usually had a public purpose or carried out quasi-governmental tasks. By the 1790s, business corporations began to emerge in America, but at the outset they were few. These corporations were usually specific in purpose, and the business purpose was still usually quasi-governmental—to build a toll road or a canal, for instance. They were often given a temporary monopoly, and they often closed up once the corporate purpose was achieved.2 The few corporations that existed were fully the legal creatures of state legislatures, and they existed under close local political control. A specific legislative charter spelled out everything from the corporation’s capitalization and life span to its functions and operations. If a corporation in some way misbehaved or became politically aggressive, its charter could be revoked or modified, and that ended that. Nothing about corporations looked like a threat. No American megacorporation marauded through the Founders’ political landscape. On our American continent, the big British corporations threatened no harm. The Hudson’s Bay Company (or, more formally, the Governor and Company of Adventurers of England Trading into Hudson’s Bay) was operating far away in Canada and not interfering in the American colonies.3 The Massachusetts Bay Company was long gone; in fact, it had lost its charter even before the colony it founded fought its way to independence.4 Had the Founders given more attention to corporations, and foreseen that corporations might slip their bounds of public purpose and public control, every indication is that they would have been skeptical and suspicious of a political role for them. The experience of the great British corporations in the mother country would have been cautionary. The British East India Company notoriously corrupted the English Parliament and foreign governments; its “nabobs” were officers who had enriched themselves enormously in India, returned to England, and bought themselves seats in Parliament, threatening to turn England into “a sink of Indian wealth.”5 The South Sea Company collapsed in a spectacular bubble, in a rancid combination of what Sir Isaac Newton reportedly called “the madness of a multitude”6 and what parliamentary investigation called the “most notorious, dangerous and infamous corruption.”7 The Founders may have thought that determining a political role for corporations was an issue for another day. Were Congress ever to charter a national corporation, safety measures could then be addressed in the charter. (When Congress did charter a national bank in 1791, the debate agitated our politics for fifty years.)8 

They may have attributed the power of those English corporations to the rotten political system in England, which the Founders were rejecting to build a better world. In any event, these scandals were far enough away that they did not provoke the Founders’ concern and caution in the drafting of the Constitution. The Founding Fathers saw no specific threat to our government from corporate entities, so they built in no specific defenses to protect against them. Nowhere in our Constitution or in our Bill of Rights does the word “corporation” even appear. In the eighty-five lengthy articles that together constituted the Federalist Papers, the word “corporation” appeared only three times, one of those times referring to municipal corporations.9 

We have one pretty solid way to deduce how the Founders would have felt about a political role for corporate entities, had they considered that at the Founding: we know what two of the principal Founders said and wrote about corporations afterward. The genius of the Founding Fathers was perhaps most concentrated in the tiny form of James Madison and in the lanky frame of Thomas Jefferson, and their views are likely illustrative of what might have happened had the Constitution addressed the problem of corporations in our politics. James Madison grew to see the dangers of corporations by 1817. That was far too late for our Constitution, but Madison’s warning of two hundred years ago is plain:

“There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses.”10

Similarly, in 1816, Thomas Jefferson had urged that we “crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country.”11

 Twenty-five years earlier, when our great American constitutional effort concluded with the Bill of Rights, that threat to our country of a “trial of strength” was not yet present. As corporations blossomed in the booming 1790s, the traditional road, bridge, and canal monopolies remained of little concern.12 But the 1790s also brought banking corporations.13 These new entities caused new concerns, and the Founders’ worries about them are instructive. 

Banking corporations were beyond the familiar mold for American corporations. They had no fixed, tangible purpose, and there were no obvious limits to their wealth or power, their reach, or their duration—they had no natural end. These characteristics rang alarm bells in the Founders’ minds. Looking back on this time through the lens of scholarly history, Supreme Court justice John Paul Stevens summed up the Founders’ dim view of the corporation: “Members of the founding generation held a cautious view of corporate power and a narrow view of corporate rights.”14 And it was not just the Founders who came to see these new, emboldened corporations as a threat to popular self-governance if unleashed in the political arena. The American people long have as well. As Justice Stevens wrote, Americans “have recognized a need to prevent corporations from undermining self-government since the founding” and “have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”15 Indeed, at the Founding, most states prohibited any political contribution by a corporation, and punished it as a criminal offense.16 The early restrictions on corporations in the nineteenth century were so limiting that building major enterprises such as Standard Oil required quite a bit of lawyerly ingenuity. The Rockefeller trust, for example, was created to work around laws restricting corporations from holding stock in other entities. That’s why it was “trusts” that had to be busted.17 Economically, a corporation can be a great boon. 

The business corporation aggregates capital with unprecedented efficiency of both cost and purpose. Neither death nor illness interrupts it. It allocates liability and risk in ways that encourage investment. It is probably safe to say that the corporate form has allowed the creation of more wealth than any other invention. As an economic actor, it is without peer. 

As a political actor, however, the corporation is a dangerous entity. The valuable characteristics of the corporate form as an economic tool are dangerous when pitted against humans in the political sphere. It was these characteristics of a modern for-profit corporation that members of the Founding generation came to perceive with such distress. First, for-profit corporations are dedicated exclusively to profit-making, by law. That is their solemn and sole duty to their shareholders.18 In business, this is an estimable characteristic, ensuring loyalty and diligence. 

In politics, where moral issues and public goods are so often at stake, such single-mindedness is a flaw. Second, corporations have no soul or conscience. Courts have said they “have no personal attributes”19; a corporation is “without either mental or moral powers,”20 is “without power to think, speak, or act, except as live sentient human beings may think, speak, and act for it,”21 and “lacks capacity for numerous abilities of a natural person.”22 An artificial being without conscience or remorse, it is kept from misconduct not by an internal moral compass but by specific laws or by the adverse business prospect of gaining so bad a reputation as to interfere with its profit-making. Third, corporations have no loyalty to any flag or nation. Mostly this is true of modern multinational corporations, which move assets, jobs, and intellectual property around the globe at will. Exxon’s former CEO is quoted as saying, “I’m not a U.S. company and I don’t make decisions based on what is good for the U.S.”23 They have only a simple fiduciary loyalty to their shareholders. Some have revenues that exceed those of countries in which they operate. Fourth, corporations do not rest, retire, or die. They are persistent and unrelenting. The legal term is “perpetual succession,” meaning “artificial life extending beyond the natural lives of the incorporators, directors, and officers.”24 A corporation “does not die in the sense that a person dies.”25 Nor does it rest in the sense that a person rests. Fifth, there is no natural limit to corporations’ size; they can hold preposterous sums of money. In politics, where “money is the mother’s milk,”26 those sums can be used to acquire influence for the corporation, so as to promote policies that enrich the corporation well beyond the cost of buying that influence. 

Indeed, given the corporation’s fiduciary obligation, it has some natural economic obligation to use its power to that end. Finally, there is no natural limit to their appetite. No corporation says, “You know, I think I’ve made enough money,” and pushes back from the table. No corporate lobby says, “You know, I think I’ve acquired enough political influence,” and goes out to play with the grandchildren. The continuity, single-mindedness, relentlessness, and efficiency that these characteristics permit are valuable qualities in economic enterprise. In the political arena, they present risks, which become acute if a corporation makes the fateful decision to pursue political influence as a moneymaking strategy. It is a voracious spiral: the more money the corporate entity can make through political influence, the more money it can justify spending to acquire that influence. The more money it spends, the greater its influence, the more it can use that influence to make more money, and so on, once acquiring political influence becomes a corporate profit-making strategy. Rare is the human being who desires to pursue, or is capable of pursuing, this influence-purchasing enterprise with such relentless and single-minded determination. 

We humans ordinarily have families and churches, illnesses and distractions, hobbies and responsibilities of various kinds that get in the way. We may be passionate about our politics, but we need our sleep. The United States Supreme Court of the twentieth century summed up the political role indicated by these corporate characteristics thus: “That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen.”27 As described by legal scholar Burt Neuborne, the “for-profit business corporation [is] an artificial state-created legal fiction vested with unlimited life, entity shielding, limited shareholder liability, negotiable shares, and highly favorable rules encouraging the acquisition, accumulation, and retention of other people’s money.”28 Supreme Court justice John Paul Stevens reminded us that “corporations are different from human beings,” because unlike us, corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”29 Putting these observations into a political context, Justice Stevens noted that corporations are not “members of ‘We the People’ by whom and for whom our Constitution was established.”30 “Certainly not a citizen,” “different from human beings,” not “members of ‘We the People’”—all these descriptors imply little or no political role for corporations. Once let loose in the political sphere, however, the sum of these corporate characteristics is a political creature with momentous natural advantages over its human competitors. 

The Framers simply would not recognize the constitutional alien that is the modern corporation operating in our democracy; of course they didn’t design limits on the political activities of an entity they couldn’t even imagine. Add to these characteristics the twentieth-century advertising and marketing skills corporations have developed to sell their products, which apply well to the task of manipulating human voters. Add on size sufficient to dwarf many sovereign nations, and the massive profit that political ventures can provide. Then add the twenty-first-century technologies of constant communication. 

Finally, add secrecy. The result is a power that could turn our popular democracy into high-tech corporate feudalism if we don’t learn how to restrain it. This book addresses how corporations have grown to a size and power and political role unimaginable to the Founders of our country; how the modern corporation has exploited the gap in the Founders’ constitutional foresight; how corporations now win the “trial of strength” against our democracy that Jefferson warned about; and what political prizes are sought and seized by corporate power through its political victories in that “trial of strength.” Finally, this book looks at the restraints the Founders did build into the system, from the civil court system to an independent press to citizens’ right to vote—restraints that can and must be employed to reclaim and reinvigorate our American popular democracy and restore to its proper preeminence the office of “citizen,” the one office all Americans occupy. James Madison is said to have warned that “the day will come when our Republic will be an impossibility. It will be an impossibility because wealth will be concentrated in the hands of a few. A republic can not stand upon bayonets, and when that day comes, when the wealth of the nation will be in the hands of a few, then we must rely upon the wisdom of the best elements in the country to readjust the laws of the nation to the changed conditions.”31 I believe that the day has come, and that readjustment is needed to reclaim the power that has slipped away from the hands of regular American citizens and into the grasp of corporate concentrated wealth. The big, politically active corporations love having us sit on the couch watching ads paid for by their front groups and deciding which of those ads appeal most to our opinions, fears, and prejudices. But that is being a consumer of their political product, not being a citizen. A citizen is more than a consumer. However much the tentacles of corporate political interference may coil around and through our democracy, at the end of the day the survival of our democratic experiment depends on the active participation of the people. Citizens need to get up off the couch and set things right. We’ve gotten off the couch before. When the Cuyahoga River in Ohio caught fire, Americans woke up to the environmental damage we were doing, started Earth Day, and passed a wealth of environmental laws that have made American life better and safer: the Clean Air Act, the Clean Water Act, hazardous waste laws, chemical safety laws, and laws protecting endangered species.32 What had happened? The creeping reach of pollution’s effects on all of us had reached a point where it sparked a reaction. Our reaction changed the country and made it a much healthier place to live. When we realized our diets were killing us, many Americans left behind the Wonder Bread, the canned vegetables, and the TV dinners. 

When I was young, a health food store was a rarity, even an oddity. In 2015, Americans spent an estimated $37 billion on organic food.33 We are living nearly ten years longer now than when I was born. What happened? The creeping effects of an all-processed-foods diet reached a point for us where it sparked a reaction. Our reaction changed our diets and made us a healthier and more vigorous people. A similar reaction is due with respect to our democracy. Too much of our democratic debate today is the political equivalent of pollution and junk food. Other generations solved other problems; it’s our turn to solve this one. We can take example and heart from the fighting spirit of the bipartisan Roosevelts. Democrat Franklin D. Roosevelt saw the powerful forces of “organized money” (as dangerous, he said, as an “organized mob”) arrayed against him.34 Here is how he responded to what he had called “this resolute enemy within our gates”35 in an address to the nation: “Never before in all our history have these forces been so united against one candidate as they stand today. 

They are unanimous in their hate for me—and I welcome their hatred. I should like to have it said of my first Administration that in it the forces of selfishness and of lust for power met their match. I should like to have it said of my second Administration that in it these forces met their master.”36 Republican Teddy Roosevelt saw a similar enemy: “Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to dissolve the unholy alliance between corrupt business and corrupt politics, is the first task of the statesmanship of the day.”37 His call was clear: “Our government, National and State, must be freed from the sinister influence or control of special interests…. 

We must drive the special interests out of politics…. The citizens of the United States must effectively control the mighty commercial forces which they have called into being. There can be no effective control of corporations while their political activity remains.”38 Ever the optimist in a fight, Teddy Roosevelt concluded: “To put an end to it will be neither a short nor an easy task, but it can be done.”

~~~

Since I've retired and moved into a single residence, I've had more problems with corporations than I had in my previous life! I've shared my grievances on the most blatant corporations, but there were many more. Companies these days care nothing about the "old adage"--so old, I've never heard it repeated since my school days-- "The Customer is Always Right..."

There have been presidents of our country who have helped monitor what has been happening, as referred to by Whitehouse, as he shared about the two Roosevelts who enjoyed being hated by corporations at that time... Then, I remember in the 60s that IBM was at a near-monopoly on office equipment, computers, etc., and was forced to allow competition to routinely occur. That, for me, was the one and only time that I saw that government took action to deal with the corporate entity that was causing problems. The DOJ had started looking at the company and went on from there...

For me, it was an easy connection to make when I thought about IBM and of the one time that Jesus became angry... It was the entire "temple" money operation that spurred him to speak against how they were using religion to make money... And, with the blessing of the pharisees who also had a major issue with Jesus... Remember?

Now, people across our nation are once again seeing religion and corporate owners/Boards, merge in an unprecedented manner in which a former president has become so immersed in working with large corporations that the first chance he got, he reduced the taxation for corporations... The lie that was told was that the corporations would use a trickle down process where all people would ultimately benefit. We all know that never happened... Not only did it never happen, but when Covid changed lives of so many, it was the corporations who took advantage of the pandemic to, in any way possible, make a "killing" on what the scarcity of supplies, routine, and medical, was supposed to have resulted in a loss...

Many small businesses did indeed face a crisis; few large corporations were negatively affected in the long-run... Yet, years later after, supposedly all things are or should be back to normal, Americans continue to face high prices for anything and everything. The difference between the two political parties in dealing with a nation-wide problem was and is still apparent!

Senator Sheldon Whitehouse begins the book talking about what he has been seeing in Congress and he has chosen to not only fight for right within Congress, but has written this book to inform. Noting that it is because We The People are the only ones who can overturn what has now become a crisis nation-wide.

While pointing out that in the 1700s when the Constitution was being contemplated, there were no major world-wide corporations. Thus there are no constitutional restrictions or even guidelines upon which legal action can easily occur. One party has continuously supported the freedom of corporations to make as much money as they can, and, in return, getting "paid" for that action...

By Chapter 2 we have confirmation of what we've seen happening... Corporations and Politics has been merged so fluently that is hard to separate out exactly who is doing what... And Why... One of the ways that has become, in my mind, a real problem, is the deletion of regulations that have been implemented over decades... For water, for construction, for land use limitations...These have been created for the safety of those who work in the areas. It is easy to have them eliminated by just one president who cares more about money than about the workers of America!

One major corporation, albeit referred to as an association, is the National Rifle Association. We are know that money crosses hands to ensure that gun sales continue to thrive and expand... During the former administration, both the president and vice-president spoke each year at a national conference of this group. And, of course, that administration ensured that the second Amendment was blown out of proportion of exactly what...it...means...

Whitehouse points out the history of the connection, noting that year after year it has become more and more a threat to popular democracy. Democracy has won big victories in fighting against these agencies. But the clarity of connection between a major political party, the law, and the corporate entities in control has become overwhelming... There is much more that can be found as to how these things are happening...

The movement of power corporations soon began to view the laws of the land as those that could be perhaps manipulated... If money was used to hire a judge at any level, but certainly at the Supreme Court level... In fact, there has been significant investigation regarding that Court and Senator Whitehouse is the leading force in the Senate to spotlight these relations. Included in this book are extensive reviews of the legal cases related to corporations... And that research is footnoted and then provided for reference in the back of the book... This is, in my opinion, a significant non-fiction book useful for all those interested in legal and practical administration of justice.

Whitehouse begins historically and then moves forward, noting the addition of lobbyists that have the jobs of influencing, often through exchange of money.

And then, it was the McCain-Feingold Act in the 1990s which began reform:

Its key provisions were 1) a ban on unrestricted ("soft money") donations made directly to political parties (often by corporations, unions, or wealthy individuals) and on the solicitation of those donations by elected officials; 2) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and 3) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of "issue ads" or "coordinated expenditures").[7]

The Bottom Line for me was that, yes, there are issues surrounding prices, size of products, etc., that hits most of our daily needs and as shown above, these are the promised issues to be addressed during the next term of office in 2024. We know that this Administration has already started with pharmaceutical corporations which previously forced many, especially the elderly to choose between medicine and food. These are all so needed...

However, I have become appalled about how political parties not only seek financial support from us--who pay their salaries through taxes--but after learning just how financial laws have been manipulated so that there is now total freedom for "dark" or unidentified money can be used to support a political party... Now we see ads that are being shown and it lists a company we have never heard of! Additionally, when I put a stop on emails, then another agency just starts the contacts! I don't even know if they represent the people they are talking about!

Further, in my opinion, I refuse to accept that Freedom of Speech can allow one candidate to tell lies about the other, or threaten those who do not comply with decisions of a political leader are sacrosanct! The level of disinformation arising from the last president has opened the gates for those who will do anything and everything to gain some small bit of power or financial gain... This has got to be stopped. Voting is our only recourse. Let's make it that We The People are able to override and provide new constitutional laws to ensure that corporations are regulated!

If you, like me, have been caught in contracts with corporations who will then not provide repair, or have problems during a job being done, I recommend you start looking toward which political party is doing something about it... If you want to know more about the details, I highly recommend this book as a must-read for many Americans who are shaking their heads, wondering what has happened to America... If you don't already know, start reading! Start watching credible news stations. Personally I chose MSNBC at this point. I like the diversity of their news agents as well as their commentators... But most important, realize that you have the right to seek help, to not be ripped off by corporations... Let's ensure that those in office work on OUR behalf to do the right thing, at the lowest possible cost for the buyer... Reading this book has made me realize just how bad it has become!

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