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Corporate cowboys

By Colin Penter - posted Thursday, 24 June 2010


“Limited liability is at the heart of this rise of corporate power: it constitutes a blanket exemption of a special interest group from accountability for the actions of their companies”. Stephanie Blankenburg and Dan Plesch (PDF 100KB).

“The ripples of this pressure on civil society travel far indeed. The perception that civil society is uncivil and a source of insecurity contributes to an environment of enhanced regulation of the voluntary sector, strengthened state oversight of voluntary sector activities, and declining confidence in the sector’s ability to contribute to the resolution of social problems and the advancement of human security”. Mark Sidel.

One consequence of the current arrangements for corporate form and structure is the ability for corporations to escape and hide liability and responsibility for their actions.

The tenets of “limited liability” and “corporate personhood” make it possible for corporations to avoid criminal responsibility. Plesh and Blankenburg argue that such limited liability enables corporations to externalise risk and impose costs onto others and to society, encourages fraudulent behaviour, promotes speculation and corruption and enriches the few while harming many. It is a protection not available to individuals or civil society groups. As such they argue it violates the equality of all before the law in favour of the “unaccountable few” (PDF 512KB).

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While governments and authorities avoid applying the full power of existing law against corporations that break the law, they are increasingly willing to use it against civil society groups, whistleblowers and dissenting individuals who try to hold corporations and governments accountable. This occurs in the USA and UK, as well as Australia as recent actions against whistleblowers and civil society, such as the AID Watch, Kessing, Gunns 20 and Parkin cases demonstrate.

Governments increasingly regard sections of civil society as a source of insecurity and act against it in the name of protecting national security or the public good.

So it is telling to compare the inaction of government against corporations, with their use of the full power of the law against civil society groups and individuals. The US government consistently fails to act against recidivist corporations who break the law, such as BP, which in their reckless disregard are responsible for the deaths of workers and wildlife, and the destruction of ecosystems, environments, livelihoods, and industries in the Gulf of Mexico, as well as many other parts of the world.

BP has been a recidivist global corporate criminal with a long and sorry record. Twenty-six people have died and 700 injured in BP accidents in the US alone in the past five years. In that time BP has 760 safety violations and paid $373 million in fines. It has three convictions and one deferred prosecution agreement but continues to operate with impunity.

When the BP CEO and executives appeared before a Congressional hearing on June 17, the only person who felt the full wrath of the law was a protestor. Dianne Wilson, a fourth generation shrimper from Texas was arrested for protesting against BP. She faces a year in jail for smearing herself with oil.

Compare the inaction against corporations with the criminalisation of civil society groups and individuals. The US government has arrested and imprisoned, without trial, a whistle blower who leaked to WikiLeaks a video showing US forces gunning down 100 people, mainly children in Garani, Afghanistan. The video, which showed a US army helicopter attacking civilians, was released by WikiLeaks early this year and caused outrage around the world. The soldier who is alleged to have released the video has been arrested and detained in an US army prison in Kuwait. The Australian-born founder of WikiLeaks has been forced to leave the US and go into hiding in response to a "manhunt" by the US government keen to arrest and prosecute him.

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WikiLeaks collects and publishes evidence of human rights abuse and illegality by governments and corporations. It has plans to publish more video footage and evidence of other massacres in Afghanistan, as well as other human rights abuses by the US government.

The Obama government is also prosecuting 27 individuals who peacefully and prayerfully protested in the US capitol in January this year against the failure of the Obama administration to close the Guantanamo Bay Prison.

In the UK recent revelations show that police unlawfully searched 3,550 people and spent £5.3 million on operations against protestors at the Kingsforth Power Station. This comes on top of recent arrests and searching of photographers taking photos in public.

But when it comes to recidivist corporate offenders such as BP, Massey Energy, AIG or Goldman Sachs there is plenty of tough talk about criminal charges but little action. Rarely is there a serious attempt by governments to hold corporations, corporate executives, and shareholders personally and criminally responsible for the company's crimes. Laws are rarely used or enforced against corporations and/or the responsible executives or directors. No corporation or corporate executive in the US has suffered any serious penalty for the fraud, illegality and corruption that triggered the financial collapse (with the exception of Bernie Maddoff).

The Obama administration has recently dropped charges against the executives of AIG, the insurance corporation the near bankruptcy of which contributed to the global economic collapse, despite allegations that investors and its auditors were misled and financial fraud had occurred. AIG is the British-based insurance company who in September 2008 were saved from bankruptcy by US taxpayer bailouts to the tune of $182.5 billion. Within months of the bailout AIG provoked outrage when it paid $450 million in executive bonuses and spent millions of taxpayer dollars on airlines and entertainment.

Even when corporations are charged and found guilty fines are the usual penalty and these are simply factored in as a cost of doing business and in many cases are tax deductible and reimbursed by the taxpayer. When evidence of corporate wrong doing is proved the authorities regularly negotiate non-prosecution agreements or deferred agreements. When charges are laid successfully they are usually against low level functionaries and, as in the case of the corporate killing by Union Carbide in Bhopal, it takes 25 years before anyone is legally held to account.

In his persuasive book Democracy Incorporated, the distinguished political philosopher Sheldon Wolin argues that most western democracies, which would include the USA, UK and Australia, have become managed democracies and corporate states, where corporate power no longer answers to state or citizen control. Wolin argues that the primary (but often unstated purpose) of government is to advance and protect the economic and political interests of corporations and markets, while claiming that these efforts serve the interests of the whole society.

When corporations can avoid criminal responsibility for their actions, and do so with the active or complicit support of governments, and attempts by civil society, whistleblowers and citizens to use their collective power to hold corporations and governments accountable are criminalised and prosecuted by governments, democracy is nothing but hollow rhetoric.

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About the Author

Colin Penter is a self employed researcher, consultant social scientist, writer and social activist based in Perth. For the past 16 years he has consulted and undertaken research on social justice and social policy issues throughout Australia for government and non-government agencies. He has been active in civil society and NGO’s for over 30 years and blogs on civil society and NGO issues. He has taught on these issues in tertiary, community and professional and school settings. He is the co-convenor of the WA Social Justice Network and coordinates the Challenging the Market Project and Nemesis Project, initiatives of the WA Social Justice Network. He also blogs on social and political issues at wwwcolinpenter.blogspot.com.

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