How to Hold Corporations Accountable
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The following conversation with Thomas Linzey is an excerpt from the new book Building the Green Economy: Success Stories from the Grassroots (PoliPointPress, 2007) by Kevin Danaher, Shannon Biggs, and Jason Mark. You can read more about the book here.
Thomas Linzey thinks of himself as more than just a lawyer. A co-founder of the Community Environmental Legal Defense Fund (CELDF), Linzey is a practicing attorney, committed to the idea that change happens at the grassroots. Much of his activism occurs through CELDF's "Democracy Schools," an innovative curriculum that encourages people to go beyond the single issue they are working on to think of their struggle as part of a larger fight against corporate power. The schools prompt citizens to question basic assumptions behind our legal system. Linzey and his colleagues encourage communities to create local constitutions, or "home-rule charters," enumerating the rights of local citizens and backing up those rights with enforceable laws.
Q: Can you tell us about "democracy"? It's a word used by everyone and can mean so many things.
Thomas Linzey: Well, I don't think we have ever had a democracy in this country. I think it's a myth that majorities have ever been able to decide what happens to their communities and their lives.
It goes back to the American Revolution when we jettisoned the king, but we didn't jettison the English structure of law. That structure of law developed at the same time England was developing into a global cultural empire. And the folks that wrote the U.S. Constitution, which serves as the DNA or hardwiring for this country, in essence worshiped English common law. We got rid of the King but we didn't get rid of an English structure of law that placed property and commerce over the rights of communities and nature.
Amazing as it might sound, a community that may want to stop toxic waste, or stop toxic sludge from coming in, or stop a big corporate hog factory farm from coming into the community, not only runs up against the corporations and the state regulatory agencies, it runs up against the Constitution.
Q: Some people might say you are anti-business. Is that the case?
TL: This work is not anti-business. In fact, it's not even anti-corporate, in many ways. We all need toilet paper and toothbrushes, stuff that needs to be made. But the question is: Who makes decisions about how those things are made? And, in addition, the question is whether those corporations should be governing entities, or should they merely be business entities? And over time, corporations and the few people that run them have become governing entities; they make governing decisions over us.
When we try to make our own governing decisions, they slash us by using our own governmental institutions, legislation, and the courts. The work is not anti-business at all. It's simply a recognition that if you are a business entity, you should do the work of business, but you should not have constitutional rights. You should not have privately enforceable rights in the U.S. Constitution, and you should certainly not have the authority to nullify community authorities.
Q: Many people in this country don't understand that corporations have personhood rights. Why does this come as such a surprise to some people?
TL: That's a very good question. People only begin to peel back the layers of the legal opinions under which they are governed when they have something threaten them personally. One or our most able organizers -- a woman named Jennifer England -- is from southwestern Virginia. She has seven children. And she's an evangelical Christian. There were plans to dump sludge right next to her house. And it was that imminent threat to her kids, to her land, to her family, to her home, that drove Jennifer to start questioning how this entire structure of law is set up.
She asked, "Why can't we just have a law that says 'no sludge can be spread in this community'?" So we had a conversation with her, and we told her that you can't do that, because it would be illegal. It's unconstitutional to ban something at the community level that the state has permitted, because it violates the corporation's constitutional rights. So the question is, as Jennifer asked, "Why?" When you explain to people like Jennifer that corporations are persons, it just doesn't make any sense to them.
The perplexed look on people's faces when they find out that corporations are deemed to be persons under the law generally leads to two things. Number one: asking questions about why corporations as persons do such damage to communities. The explanation is that when you pass a law at the local level and it somehow violates the corporation's constitutional rights, the corporation can use the federal or state courts to strike down the law.
Number two: going on the offense, meaning that if you are going to pass a sludge ordinance or a factory farm ordinance, or some ordinance at the local level, it is absolutely foolish not to anticipate the challenge that will eventually come down the road, and to build into the ordinance a frontal challenge to the assertion of those rights of the corporation.
And so the "Why?" being asked at the local level -- why can't we control the destiny of our own communities? -- is leading to an offense that's very sophisticated in terms of attempting to dismantle the structure of law.
Q: Speak about the regulatory system. It's supposed to keep corporations from doing harm, but everywhere you look -- the water, the land, the air -- everything is polluted.
TL: It's funny, because people come up to me and say that the regulatory system is broken. It's not protecting our health. It's not protecting our welfare. To which, increasingly, we look back at government and maybe we say the regulatory system is working perfectly because maybe its purpose was
Maybe its purpose was to legalize corporate harms that would otherwise be illegal without a permitting system in place. In other words, we think of regulatory agencies as folks that attempt to save us from being harmed, but in reality the history of regulatory agencies is much different.
In essence, it's about writing a script for our activism and channeling us down to a regulatory point where we can't win, and even if we do win, we don't win much of anything at all.
And of course when you regulate something, as opposed to when you ban or prohibit it, you are giving up your authority and, in this case, being stripped of your authority to decide what comes in and what doesn't. So I think if our activism is really going to evolve, we have to start seeing how the regulatory agencies really are enablers for the corporations to come in and do the damage that they do.
Q: Some believe that laws such as anti-corporate personhood ordinances are a waste of time because they will be challenged and shot down, so why bother? What is the logic behind civil disobedience to the law?
TL: Well, the law changes. The law changes when people stand up and say we can't take this any more, we are not going to do this any more. In fact, lawyers have never changed the law in this country. It's always been community organizers who are pressing up against existing structures of law that have changed anything in this country.
Rosa Parks, she knew she was subject to a criminal conviction, but she did what she did anyway. The civil rights movement, those brave kids that sat down at the Woolworth's lunch counter, of course the police where going to arrest them, of course they were going to jail. How does that change anything?
They change something when a spark happens. When people see other people doing democracy in a different way and it catches fire -- then it has nothing to do with the individual law. It has to do with a movement that builds, with people no longer willing to live under a structure of law that continually screws them. Because there's nothing left to lose, and when there's nothing left to lose, people whose backs are against the wall tend to come out kicking.
What this work is about is knitting together those communities who are finally learning that they are always on the losing end of the stick, that the regulatory agencies are not a remedy, that they can't turn to their state legislature or their courts for a remedy because those courts are carrying out laws that are written by the corporations in the first place.
And the legislatures are passing laws that were drafted and given to them by the corporations. And so the question is: Where do these folks turn for a remedy? They have to create their own remedy -- just like the suffragists did, just like the abolitionists did, just like the great people's movements of this country did.
Q: Do you believe it's possible to change the role of corporations in our society?
TL: I think it's the beginning of the beginning of the beginning. And I think the people that are willing to change the structure of law are the ones that are directly affected by how law operates, are going to be the ones that push it forward. Which means it's not going to come from environmental organizations.
It's not going to come from social justice organizations. It's not going to come from the top down, from existing organizations. It's going to be pushed upward by these groups of people who are courageous enough to come together around their kitchen table to say "we want this for our community" and are being told that they can't have it, and then they are pushing back and they are saying, "we are going to take it anyway."
The bulk of people who are going to be driving this stuff are the Jennifer Englands and other folks who are very different leaders than we perhaps expect to see. Leaders serve in that they are essentially facilitators and translators to explain to people how the system of law is operating, and why, when they try to stop sludge, they have to stop corporations as well.
So I think when I say we are at the beginning of the beginning of the beginning, it's as if we are the abolitionists back in the 1830s, thirty-seven years before the 13th, 14th, and 15th amendments were written into the Constitution, and I think that's where we are now.
It's an exciting time, because it allows us to lay the framework and the foundation in the right way so that the house doesn't fall over later. But it's also a fairly depressing time, because things are really bad and things are getting worse, and we want to see this thing accelerate.
Eventually, it means rewriting the state constitutions; eventually, it means rewriting the federal Constitution. And now in polite company, you can't even talk about those things yet. I think as the years roll on, more and more people will understand that we actually need to change the DNA of this country to have any chance. I think that as the ball starts rolling faster, more and more people will clearly see how the structure of law operates and the necessity of changing it.