By What Authority:

May 2003

By What Authority

How Corporate Personhood Threatens Democracy

A direct lesson in maintaining our citizen-directed government

By Kimberly French

Originally Published: UU World XVII:3 (May/June 2003) www.uuworld.org

Wearing a garland of flowers, Ward Morehouse rose to address the thousands gathered in a sunny park in Bhopal, India, on the tenth anniversary of the worst industrial accident in history. In December 1984 a huge chemical leak at the Union Carbide pesticide factory there had killed more than 15,000 people and injured hundreds of thousands. To this day, the company has never been prosecuted for its negligence and the suffering it caused.

The tall, white-skinned Morehouse, the only non-Indian invited to speak at the 1994 commemoration, pledged in Hindi and in English never to let the world forget "the Hiroshima of the chemical industry." Many of his fellow marchers carried stone slabs inscribed with the names of loved ones. Along the demonstration route, art by children orphaned in the disaster showed people screaming, bodies lying on the street, Uncle Sam holding out a bag of money. On reaching the shut-down factory, the crowd turned to Morehouse, an American, to ignite a ten-foot papier-mâché effigy of the U.S. company's chairman, Warren Anderson, in a symbolic sanctification of those profaned grounds.

For many Bhopalis, Morehouse is a folk hero — the person who has carried the torch of their struggle out of India and into an international network of activism. For activists around the world, he is a high-energy Žminence grise for the social justice cause and a deep thinker about the roots of the world's ills. And for the past decade Morehouse, a third-generation Unitarian Universalist who lives in Holyoke, Massachusetts, has been breaking ground for a new citizens' movement pushing for a tectonic shift in the political-economic landscape — a movement to wrest away the staggering power that global corporations have over individuals' lives and replace it with true democracy.

After four decades battling the abuse of power in the world, Morehouse realized that the methods of social justice activists — the tactics he had used his entire career — were not working and never would. In his view, those who seek to change the world must now focus on one radical goal: to legally redefine the role of corporations in our society and drastically limit the wealth and power they are allowed to amass. In the past decade he has become one of the pioneering theorists and principal activists in this new movement.

But that is not the way Morehouse would tell his story. Never one to seek the spotlight, the seventy-four-year-old activist scarcely talks about his own accomplishments. Instead, he prefers to praise the colleagues and organizations with whom he works. Or, with erudition and practicality, he turns the conversation to the democratic principles to which he has committed his life.

"He is the most unpretentious important person that I know," observes Richard Grossman, Morehouse's long-time colleague in activism. "He either keeps his ego in check, or he doesn't have one. He's not out for power or glory. He truly cares about people, and that is his great strength."

Friends tell of someone who can always be relied on to pick them up at an out-of-the-way but cheaper airport, or take days off to use his electrician skills to help them wire a new office, or fetch juice and fend off reporters and hecklers for a colleague engaged in a hunger strike, or work day-in, day-out seeking justice and compensation for victims of corporate crime half a world away.

In a career spanning more than fifty years, Morehouse has worked with activists around the world addressing a broad spectrum of issues: safe energy, land use, consumer advocacy, labor, women's rights, environment, human rights, peace. His warmth and generosity of spirit have spanned extreme differences of opinion in the heated climate in which passionate activists live and breathe.

"He is always the peacemaker," observes David Dembo, who has worked for twenty years under Morehouse as program coordinator at the Council for International and Public Affairs (CIPA). "He listens to everyone's point of view, synthesizes, and shows people they're not as far apart as they think."

Chuck Collins, cofounder of United for a Fair Economy, who has also worked with Morehouse in UUs for a Just Economic Community, concurs: "He doesn't see any value in trying to seem like 'I have the answer.' He checks out where people are at, and he's not going to beat them up about it."

Eschewing pretension in any form, Morehouse nearly always sports a uniform of khakis and a plaid workman's shirt over a white T-shirt, breast pockets stuffed with agenda and address books. For public appearances, he may throw on a rumpled jacket and tie. When things get more informal, friends note, his socks are sure to have holes. Yet sooner or later, he reveals the breadth of his intellect and skills: as a person who has both set up small worker-owned businesses and organized an alternative global summit to the Group of Seven world economic plan; a master carpenter who has built every house he's called home as an adult and can write national energy and technology policy; a beloved husband, father, grandfather, and friend who might as easily talk about global corporations as where to find the best berries or a secret hideout of fifty seals near his Maine cabin.

"A lot of times activists get themselves into a position where they can be so easily discounted," says colleague Virginia Rasmussen of the Women's International League for Peace and Freedom (WILPF). "Ward has a way where he can't — his style, his approach, his language, his demeanor. He projects a level of wisdom about his issues, and he speaks the language of respectability."

Despite a checkered record as a student (the young Morehouse was kicked out of Deerfield Academy for "problems with authority" and rarely attended lectures at Yale), he began his journey in academia after graduating in 1950. It was a familiar path: Both his father and grandfather were political economics professors. "At the time it seemed to me a neat place for me to carry on my subversive activity and teach about the revolutionary world," Morehouse says. He taught, did research, and in 1963 founded the Center for International and Comparative Studies for the New York State Education Department, publishing textbooks to help U.S. students better understand foreigners. "I had the incredibly naïve assumption that educational institutions could be in the vanguard. In fact, they have the reverse function."

Disillusionment would soon change his life's direction, and not for the last time. In a flap that drew national mainstream press attention in 1974, his Yale classmate William F. Buckley Jr. called for Morehouse's resignation in The National Review. For thirty years, U.S. scholars had had no contact with China. Morehouse had seized the opportunity of President Richard M. Nixon's renewal of diplomatic relations to invite Jack Chen, a Communist scholar who had lived through and studied the Chinese Cultural Revolution, to New York State as a visiting lecturer. Morehouse fended off the attack, but yanked the curtain on his academic career himself. "It became increasingly apparent to me that I would be spending most of my time putting out fires and maintaining the little infrastructure I had built up," Morehouse recalls. "And I didn't intend to do that the rest of my life."

In 1976 Morehouse took over the post he still holds, president of the Council on International and Public Affairs in New York, a nonprofit human-rights organization he had helped to found in 1954. He was there when he heard about Bhopal, the event that was to shape the rest of his career. Morehouse remembers feeling absolute horror at the news.

The chaos on the night of the disaster was beyond the domain of nightmare. Chemical leaks occur frequently and usually don't even make the news, but nothing before or since has approached the scale of the runaway reaction that emptied a forty-ton storage tank in Bhopal just after midnight on December 3, 1984. Wind rapidly blew a fifteen-square-mile plume of deadly, grayish-yellow gas — mostly methyl isocyanate, used to make the common pesticide Sevin — southwest across the city. Many Bhopalis awoke, gasping, to discover family members, many of them children, already dead. People ran blindly through the night streets or jumped atop outbound train cars, the dead falling everywhere.

Had Carbide implemented even a basic safety plan when it located the big factory in a dense, poor, urban neighborhood, residents might have known that a wet cloth over the face might have saved them or that running east was the best evacuation route. In the days to come, hospitals and clinics were mobbed, but it took Union Carbide two weeks to reveal what the gas was or its antidote, claiming trade secrets. Carbide chairman Anderson was arrested in India shortly after the tragedy, posted bail, and left the country. He ignored Indian subpoenas, and Union Carbide refused to reveal his whereabouts. To this day, "Hang Anderson" graffiti are freshly scrawled throughout Bhopal.

Morehouse was singularly well qualified to transform his personal outrage into action. During the 1960s and '70s he had served several fellowships researching science and technology policy in India, a country he loved as a second homeland and where he had met "some of the most extraordinary human beings I've encountered anywhere in the world."

For the past two decades, Morehouse has relentlessly hounded Union Carbide to take responsibility for the disaster, in shareholder meetings, in the courts, in international human-rights tribunals, in the newspapers, and in the streets. He has kept close contact with victims' advocates in Bhopal and organized coalitions of U.S. medical, scientific, environmental, church, and labor groups to keep the pressure on Carbide.

Working from CIPA's low-rent East Manhattan office, a space so small that one person had to stand up so the other could move, Morehouse daunted fellow activists with his pace, energy, and frugality. He rose at 3 a.m. daily to dictate his writing, keeping two typists in the United States and one in India fully employed. To relieve CIPA of the burden of paying him a salary, he started his day job, rehabbing and retrofitting houses for energy efficiency in Croton, New York, where he lived for decades and raised two sons with his wife, Cynthia. On occasion, Morehouse even called meetings on the construction site. Evenings, he returned to the administration of CIPA.

Morehouse has always been one to put two sticks together to get things started. Much of CIPA's $500,000 budget comes from a popular series of secondary-school textbooks: Through Indian Eyes, Through Chinese Eyes, etc., anthologies of writers from other countries. The books are shipped out of the basement of the Unitarian Universalist church in Croton, which the Morehouses helped found. "I learned long ago," he says, "about running a small nonprofit: keep your fixed overhead expenses — office, payroll — as low as possible. Our most precious asset was our autonomy, so we had to self-finance."

In the Morehouse way of combining brutal honesty with humility, he says all his efforts to bring Union Carbide to justice have failed.

The company has never been brought to trial. It has never been forced to answer why it did nothing to avert the disaster despite knowing the plant's safety flaws and why it didn't cooperate with Bhopali government and medical officials to avoid needless death and suffering. The toxic spill has never been cleaned up or contained, and it continues to poison water supplies.

In February 1989, the Indian government accepted Carbide's offer of a one-time settlement of $470 million — a few hundred dollars per claim. The settlement was so favorable to the corporation, so much less than its true liability, that its stock rose $2 a share on the day of the announcement.

"We weren't having any real impact on the behavior of the perpetrator of the disaster," a profoundly frustrated and again disillusioned Morehouse concluded. The only real accomplishment, he says, has been that Carbide could not achieve its overriding objective: to bury the memory of the tragedy.

It was time to rethink. In the early '90s Morehouse looked back over his career and at the many activists he had worked alongside since the '60s and '70s. Like him, they had devoted their lives to their causes. Like him, they had used creative, sophisticated, and unrelenting tactics: pressing for legal redress, boycotting, bringing wrongs to public attention, publishing, demonstrating. Like him, they had made little lasting impact.

By focusing on one toxic chemical, one wetland, one forest, one shopping center, one corporation at a time, Morehouse determined, every one of them had missed the root of their struggles: the enormous power of corporations to do as they liked with no effective accountability, and corporate dominance over human rights.

"My father has always been a generation ahead of everybody else," says his son John Morehouse, minister of the Unitarian Universalist Fellowship of Frederick, Maryland, who regularly invites his father to take the pulpit. "In the '50s and '60s he was talking about increasing diversity, long before diversity was a catchword. He was challenging globalization back in the '70s and '80s. And long before Enron, he was working toward an understanding that it's wrong that corporations have rights that are greater than individual human rights."

In 1995 Morehouse and Richard Grossman cofounded a think tank called the Program on Corporations, Law, and Democracy (POCLAD), a project of CIPA. They invited a dozen fellow activists to join them. Their primary tool has been weekend retreats they call rethinks, short for Rethinking Corporations, Rethinking Democracy. The workshops bring together twenty to twenty-five activists who live near each other or work on similar issues. Over the past decade, POCLAD has conducted several hundred of the retreats all over the country and is now training others to lead them.

Morehouse and Grossman never set out to become experts on corporate history and law. But they have concluded that, to effect any lasting change, that is where activists must focus their energy.

Morehouse calls movements that simply ask corporations to behave better, such as socially responsible investing, social auditing, business ethics, or wise use, accommodations to corporate power. "It's not . . . 'good corporate citizenship' that sovereign people must seek. Those phrases are contradictions in terms and diversions from the public's central task to become unified enough to exert citizen authority over the creation, structure, and functioning of all business enterprises," Morehouse and Grossman write in the POCLAD anthology Defying Corporations, Defining Democracy.

What they envision is much more radical. Morehouse has helped draft a model corporate code that calls for states to:

He calls for citizen-led truth commissions to collect human rights violations by global corporations and for real campaign-finance reform that includes free time on the publicly owned communications airwaves.

"In the early days after independence," Morehouse says, "corporations were chartered by state legislatures for specific public purposes. If a corporation did not fulfill its public purpose, it was put out of business, and the state took back the charter." One of his strategies has been to educate state legislators about that history. In 1995 CIPA took out a full-page New York Times ad calling on New York State to use its constitutional power to revoke Carbide's corporate charter for causing "mass harm."

When Morehouse and Grossman started POCLAD in the early '90s, their suggestion that people organize to get their states to dissolve the most abusive corporations evoked nervous laughter and advice to "get real," they report.

POCLAD's influence can already be seen in numerous activist organizations. Jim Price, Sierra Club's southeast regional director and a Unitarian Universalist in Birmingham, Alabama, has launched initiatives on water privatization and corporate accountability since attending the workshops and joining POCLAD. "Ward has helped some of us younger people come to the realization that we must devote some of our civic energy toward redefining corporations so they serve We the People," Price says. "Ward's example of Union Carbide and Bhopal is the worst of the other way around. It's criminal. But it's not unique. People are dying all over the place. More and more people are beginning to make these connections that the arrogant abuse and overreach of money is causing such pain and death. Ward is a sentinel."

The movement must begin with "democratic conversation," talk around a kitchen table or in a church basement, as Morehouse quotes one of his own inspirations, William Greider, journalist and author of Who Will Tell the People? The Betrayal of American Democracy.

"This insurgency will not begin with abstract ideas or charismatic political leaders," Morehouse says in a sermon he has delivered in Unitarian Universalist churches. "Its origins will lie among ordinary people who have the will to engage themselves with their surrounding reality and to act on the conflict between what they are told and what they experience, thus disrupting existing structures of power and opening up paths for renewal."

The changes he calls for will take decades, if not generations, he says. The NAACP, he points out, worked for almost twenty-five years before achieving its first milestone in Brown v. Board of Education in 1954. A comparable first step for the fledgling movement to reclaim democracy from corporations, he says, would be stripping corporations of the rights of natural persons.

"It's not clear we can sustain the struggle over that period of time, but this is the scale we have to think of," Morehouse says. "The constitutional standing of corporations are generational matters. I don't think any of us will be the ones to see all our goals achieved."

How does Ward Morehouse keep going in the face of overwhelming discouragement and uncertainty? He chuckles. "I get asked that question often, from some members of my own family: How long is this chap going to be tilting at windmills?"

He answers with this story: Day after day a reformer stands in the temple denouncing the practices of the moneychangers. An observer asks, "Why do you carry on day after day? It's so obvious the moneychangers are paying no attention."

The reformer replies, "I do it so they will not corrupt me."

"It speaks to my condition," Morehouse explains. "I don't want to be corrupted in a society that has a nominal commitment to basic democratic values, but in reality only tolerates them and will deny those values to outsiders. It's a painful line to deliver: We do not live in a democracy. We live in a plutocracy. I wish it were not so. I'd have to be blindfolded to pretend otherwise.

"My guiding light is my desire to end corporate rule in America, a windmill if there ever was one," he smiles ruefully. "But the failure to make the effort to bring about real democracy would be even worse."

Essayist and journalist Kimberly French is a frequent contributor to UU World.

Contents: UU World May/June 2003

UU World XVII:3 (May/June 2003)

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Copyright © 2002-2003 Unitarian Universalist Association

Corporations, Law, & Democracy

An interview with POCLAD

by Daniel McLeod

(Originally Published: Z Magazine Online, May 2003 Volume 16 Number 5, www.zmag.org)

Virginia Rasmussen and Mary Zepernick are members of the Program on Corporations, Law and Democracy (POCLAD), a group of 12 organizers, researchers, activists, teachers, and former elected officials working to expose the hidden history of corporate power in the United States and world at large. They also work with the Women's International League for Peace and Freedom (WILPF) promoting its national campaign to abolish corporate personhood.

DANIEL MCLEOD: Initially the Founding Fathers were very suspicious of the political power corporations could wield and kept them on a short leash. How did they ensure the corporate form was subservient to popular will?

RASMUSSEN: The charter of the corporation was given by state legislatures and state legislators were the only figures in government actually elected by the people. That's where they placed the chartering of corporations and those charters were very specific in their content. The purpose of the corporation was made clear: a corporation could not suddenly start doing something outside of that purpose. They were liable for harms done; their records had to be open to the public at any time; they were subject to trial by jury; they could not own stock in other corporations; they were limited to a certain size and they could be brought before a legislature or state courts and have their charter revoked when they violated this publicly granted agreement. Over the years this way of defining corporations was eroded and eventually the power of the charter disappeared.

ZEPERNICK: The phrase "common good" was a prevailing value in relation to the corporate form. In 1834 the Pennsylvania state legislature defined a corporation as "just what the incorporating act makes it. It is a creature of the law and is to be molded to any shape or any purpose the legislature may deem conducive for the common good." Not only did the process of chartering unravel in terms of having any real teeth or meaning, but that concept of common good as guiding decisions and definitions also disappeared.

A major perversion of democratic ideals and practice took place in 1886 when the Supreme Court granted corporations legal personhood. What is this doctrine?

ZEPERNICK: It is the inclusion of the corporate form under the 14th Amendment to protect persons. It means including the corporate form in that definition of "person." From there, in court case after court case, the corporate entity has accumulated the actual rights of human beings, including Bill of Rights protections.

RASMUSSEN: The Bill of Rights basically grants human beings protections from the government. So when a corporation is defined as legally equivalent to a person it has then become eligible for Bill of Rights protections.

ZEPERNICK: It has been said, "Slavery is the legal fiction that a person is property and corporate personhood is the legal fiction that property is a person."

It's amazing that corporations gained personhood over night while women, Native Americans, the propertyless, and African Americans had to struggle for generations to win that recognition.

RASMUSSEN: Corporations were not innocent bystanders with regard to humans being denied rights. They knew as the corporate entity gained legal rights, its dominance would be measured by the degree to which natural persons were refused those rights. Those behind the corporate shield were looking carefully at the powers being accumulated by real people and making sure that their own power was not shrinking too rapidly.

Virginia, you once thought, in the heyday of 1970's regulation, that the common good was finally being defended. How do you feel now?

RASMUSSEN: The 1970s were seemingly a bright period in the life of social change. Many laws were passed to protect us from toxic substances, clean up our water and our air, help us address waste and conservation issues and set endangered species regulation. At the time most of us thought this was really going to make a significant difference. The activism of the people was really working its way through the system into legislation into law.

But in the decades that passed we became aware that this kind of regulatory law does not come from the grassroots. It's law designed by the propertied few to protect them from the people. It concedes power to the corporate decision-makers and protects those decisions from us rather than the other way around.

It does occasionally allow you to move through the legal system into the courts and win a decision against a corporation. But we have come to see these as false victories because they co-opt us back into that exhausting and diversionary regulatory system which ultimately keeps us busy while the dominant power remains in place. That power shapes the production, investment, work, and technologies that define our lives and our labor. Those who are being regulated design regulatory agencies. Labor law, in the end, regulates workers and environmental law regulates environmental activists.

Also during the 1970s the themes of "corporate responsibility," of good "corporate neighbors" and "corporate citizenship" hit their stride. How should we read this thinking?

RASMUSSEN: This is another way of diverting our attention to corporate behavior. This is what the regulatory system is all about. So we go after the behavior of corporations as opposed to looking at the nature of the corporation itself. The combination of corporate legal powers gained over the last 150 years and the mandate within the capitalist system is a powerfully destructive combination. It's rapidly doing us all in and the earth as well, but as long as we stay focused on this or that specific harm they do, their capacity to define and destroy will remain in place. So this notion of "good corporate citizenship" is one more diversionary tactic.

Do you see new forms of activism grounded in asserting people's sovereignty?

ZEPERNICK: Yes. For instance, POCLAD has worked very closely with an attorney, Tom Lindsay, who formed the Community Environmental and Legal Defense Fund in central Pennsylvania.

He focused on environmental issues, working with farmers and developing enough trust and confidence that township supervisors came to him for help in resisting the encroachment of corporate hog farms. Through very cooperative, democratic work in that area, ten townships have passed ordinances banning corporate farms and there was tremendous learning and democratic discussion among the citizens. They're discovering that they can govern themselves — decide what goes on in the communities, how the food was grown, by whom, and so on.

The latest wrinkle is that corporate organizations like the Farm Bureau have sued one of these townships. They came right out in the open and listed all the things that have accrued to the corporate form because of personhood and other decisions: Due Process, Equal Protection, the Commerce Clause, the Contract Clause, the state constitution, and so forth.

So the struggle is joined and it is creating what we call a "crisis in jurisdiction" between the local government, the state government, and the feds. Last spring there was a conference of local Pennsylvania governments and some 350 municipalities asserted their right to self-governance. Point Arena, California organizers gained a city council resolution agreeing that corporations should not have the rights of personhood. Arcata, CA, has recently limited the number of national restaurant chains that can come in. In a variety of ways local communities are waking up and saying, "It doesn't have to be this way." Of course, we're going to see a great deal of legal struggle and beyond, but that's what needs to happen.

RASMUSSEN: In the labor movement there is a growing awareness that the struggles they engage in take place within a very narrow range of possibility. This range is defined largely by the managerial and owning class and not defined in any way by the working people. They're beginning to say, "When we go into a workplace, why is it that we lose our rights as citizens: the right to speak about conditions of our work life, to organize, to associate?" That's an unconstitutional arrangement and yet that's the place we've been relegated all these years. They're saying, "We're going to argue our cases on larger issues of human rights, not just on matters that address wage and benefits." They're looking in the 13th Amendment of the Constitution that says involuntary servitude shall not be allowed in the United States. They are saying, "Look, if you go into the workplace and are not a citizen anymore isn't that rather like being in service — involuntarily — to that corporation? Isn't that unconstitutional?"

ZEPERNICK: We're talking about the need to change the culture and that's frustrating to some activists because it's long-term stuff. It doesn't mean that you don't work on immediate issues, but you do it in that larger framework and take the struggle to the arenas where we have some standing — our local state governments and so on. That's what the abolitionists and women did. They changed the culture enough to drive themselves into the Constitution. The court does not hand out gifts. It does on occasion respond to significant changes in the culture. So we need to de-colonize our minds in tandem with a legal strategy. A combination of those two hold out great hope. That's generally how systemic change has occurred in U.S. history.

How can POCLAD's work help fuel today's efforts at movement building? What diverse interests can plug into your analysis?

ZEPERNICK: I don't think there are any that cannot plug in. The challenge is to reframe our issues in order to act as sovereign citizens, gaining the power to define our own culture, politics, and economics.

RASMUSSEN: For a movement to be effective it must be rooted in the source of our problems and that's what POCLAD is working to do with the help of others. We're digging for these roots together and trying to find a way to work with them effectively in the real world. Building a movement is essential to making anything happen. The courts, the legislatures, and policies don't change without being forced to change. We need to build large numbers of people committed to similar fundamental understanding and vision. That's what we're trying to do.

ZEPERNICK: POCLAD is saying, "Continue to work on your concerns and issues, but lets grapple together with how our goals and strategies can move toward that larger common goal of putting human beings in charge of our lives and decisions." I don't think there's a huge divide between those who do and don't identify themselves as activists. There are a lot of people who, at an intuitive level, understand things aren't right. So I think they're ready for these kinds of campaigns and public education as long as we don't marginalize and divide ourselves.

If these ideas catch on and translate into effective action, what are some likely counter strategies we can expect from pro-system pundits, PR, and politicians?

RASMUSSEN: They will either trivialize this work or we will be co-opted or, we'll be bludgeoned.

ZEPERNICK: With the growing awareness of corporate power and abuses, we need to be especially aware of being co-opted by "reforms," of damage control efforts. When we look back we can see periods of history that were massive co-optations of some real people's progress. There are those of us that see the New Deal in the 1930s as co-opting the growing resistance against the tremendous inequities exposed by the Depression. It just patched it up and carried on. That doesn't mean that some of the specifics weren't good things, like Social Security and some other important measures, but we're ripe for co-opting today — a measure of our growing success and threat to the ruling powers. It's tempting because it looks like a victory. That's what the regulatory regime did in the 1970s — it co-opted the energy of the 1960s.

RASMUSSEN: We are presently in a better place, more resistant to being co-opted because the notion of "progress" is now more suspect than it was 30 years ago when the new environmental and occupational regimes were put in place.

Daniel McLeod is an activist and freelance writer. He lives in western Massachusetts.