Maxxam Corporation is a Subordinate Creation of We The People - Let's Start Treating It That Way
(Published in a slightly different form in Access magazine in 1999)
Across the nation, citizens are beginning to awaken from a hundred-year slumber, and are discovering what the legal and cultural relationship used to be between We The People and our corporate creations. We once knew that we had sovereign authority over all of our institutions, be they corporate or government. In the words of Richard Grossman (Co-Director of The Program on Corporations, Law and Democracy - POCLAD), "People still understood that they had a civic responsibility not to create artificial entities which could harm the body politic, interfere with the mechanisms of self-governance, and assault their sovereignty. They also understood that they did not elect their agents to positions in government to sell off the sovereignty of the people. "
Prior to this century, directors and stockholders of corporations were held personally liable for all harms and debts caused by the corporation. When a corporation caused harm or exceeded its authority, it was common for a state legislature to revoke its charter, and distribute its assets back to the stockholders. In other words, corporations weren't simply thrown out of a state, they were dissolved.
This cultural and legal norm began to disintegrate in the late 1800's as corporations grew richer and more powerful. In 1886, Southern Pacific Railroad Corporation convinced a judge in Santa Clara County, CA that it should have the same Constitutionally-protected rights that are guaranteed to flesh-and-blood people, which ultimately resulted in corporations winning free speech and private property protections. This decision fundamentally altered the nature of American law, and is key to our understanding of how Maxxam Corporation (which is chartered in Delaware) today claims more private property and free speech rights than is guaranteed to the flesh-and-blood people of Humboldt County - more rights than its employees, more rights than the landowners downstream of its operations, more rights than the people working hard to stop its destructive practices. Can our democracy survive such an absurdity? I think not!
In addition, the whole arena of regulatory law was originally shaped and encouraged by giant corporations around the turn of the century. Until the late 1800's, corporations were PROHIBITED from causing harm to persons or communities. In this brave new legal world, harm is now REGULATED, and corporations are required merely to get permits for the harms they cause. In other words, corporate harm has become legal, and when a corporation exceeds its legal limits of harm, rather than having its charter revoked, it now simply pays a fine, which is tax-deductible and factored into the cost of doing business. No longer is anyone held personally accountable. In fact, the paying of the fine proves that the system is working.
Let's think about Maxxam Corporation again. It has 310 regulatory law violations, and counting. It continues to wreck salmon streams, devastate the local fishing industry, and bury downstream neighbors in loads of silt and landslides, not to mention its manipulation of the democratic process. Can anyone with eyes and ears honestly still believe that the regulatory law system is working? In fact, it is! It's working exactly as it had been designed to: what the CDF and other regulatory agencies regulate most effectively is citizen participation, not corporate behavior. As my associate Jane Anne Morris in Wisconsin says, "When we cooperate in regulatory law proceedings, we are following the script that corporation representatives wrote for us."
At the Habitat Devastation Plan (HDP) hearings in Eureka last November, the regulators had us arguing about how wide the no-cut zones should be around streams, or which groves should or shouldn't be clearcut. This is not the issue that a sovereign people would be debating! If we woke up to our proper relationship with Maxxam Corporation, we would understand what the REAL issue is: Who's in charge here? We The People or Maxxam Corporation? And by what authority have CDF and the other regulatory agencies framed the issue and regulated the debate? "What if a regulatory agency gave a hearing and nobody came?" asks Jane Anne Morris. "The outcome would be the same but we wouldn't have wasted all the time and resources, nor would we have helped grant an aura of legitimacy to a sham proceeding."
"What if a regulatory agency gave a hearing and nobody came?" - Jane Anne Morris, corporate anthropologist, and author of Gaveling Down the Rabble
"What is the alternative to working within the regulatory arena of law?!" I hear readers asking. In fact, there is another legal arena where citizens DO have sovereign authority - what POCLAD refers to as "Defining Law". The Defining Law most relevant here is our state constitutions, state corporate codes, and corporate charters, all of which used to be written by our state legislatures, and today are written mostly by or with the active oversight of corporate lawyers. Not because the laws were changed, but because the people slowly forgot their proper relationship with their corporate creations, and now only challenge corporate harms one at a time: one timber harvest plan at a time, one endangered species at a time, one habitat devastation plan at a time, one corporate downsizing at a time.
Back in 1879, the California Constitution prohibited corporations from "conduct[ing] their business in such manner as to infringe the rights of individuals or the general well-being of the state". This section was repealed in 1972! Were citizen activists even paying attention that year to the corporate theft of our authority? Unfortunately not! We were immersed in regulatory battles - where corporate leaders could regulate OUR actions. Why do we no longer even know this history? Can we afford not to?
It is difficult to shift gears, especially when what we are doing is all that we know. But, as Jane Anne Morris says, "As long as we stick with Regulatory Law and leave Defining Law to corporate lawyers, we'll have corporate government." Many of us have become lay person experts in Regulatory Law and language. It's no more difficult to learn Defining Law, it's just different.
My organization, Democracy Unlimited of Humboldt County - based in Arcata, CA, has been educating and organizing citizens for the past two years. We offer workshops and speakers on Dismantling Corporate Rule, and recently helped to launch a second autonomous Study Group in southern Humboldt which continues to meet weekly. Last November, Arcata voters passed Measure F, a ballot initiative that our spin-off group (Citizens Concerned About Corporations) had worked hard on for many months: the Arcata Advisory Measure on Democracy and Corporations. Over the next year, local residents will begin a democratic process that has the potential to rein in these rights that giant corporations doing business in Arcata now claim, but which are fundamentally illegitimate in our democratic society and used to be cause for dissolution. I believe that the time may be right to begin this Spring to organize a county-wide ballot initiative that has the potential to end Maxxam Corporation's devastation of Humboldt County's landscape, its economy, and its democratic institutions. And I'd like to suggest a focus.
Last October, the township of Wayne, PA passed a ground-breaking ordinance which prohibits any corporation from doing business in Wayne if it has a history of consistently violating regulatory law, or if any member of its board of directors currently sits on the board of any other corporation which has a history of consistently violating regulatory law. That includes environmental and labor law, occupational safety and health law, tax and consumer law. Could such an ordinance work here in Humboldt County? Let's launch an exploratory group, and figure it out. (Full text is on our web site.)
If a "natural person" commits three violent crimes in California, he or she goes to prison for life. But when a "corporate person" like Maxxam Corporation causes massive harm, and racks up hundreds of regulatory law violations, it gets a tax-deductible fine, and no one is held personally accountable - even after it's placed on and violates its own probation! I am convinced that the people of our county have good common sense, and are ready to educate and organize their communities to withdraw Maxxam Corporation's legal right to devastate our county's economy, ecology, and democracy.
I am NOT talking about throwing thousands of decent hard working people out of their jobs in the local forest industry. The striking steelworkers are a good example of an empowered and organized group of citizens taking action together to defend their livelihoods. Forest workers' Constitutional rights are consistently being violated by their corporate employers. They ALSO need to reclaim their authority over their workplaces, and over the forestry decisions and practices that affect their lives.
Who is ready to roll up our sleeves and learn more about Defining Law, and what we could accomplish here in Humboldt County and beyond? Are you a downstream resident, employee of Maxxam Corporation, environmentalist, local business owner, or other local concerned citizen? We want to hear from you!