A Corporate Political Kingdom

Or, Is Delaware’s Depravity Literally Unthinkable?  

Corporate Voters Project – Research Note #6

The more I dig into Delaware’s law and politics, the more apparent it becomes that lawyers and judges from outside of the state cannot bring themselves to imagine – much less acknowledge – the depth of state’s commitment to servicing corporations. The devotion of Delaware’s political class (past and present) to wealthy corporations, over and above any kind of public good so far defies the expectations of strangers – even well-informed ones – that it blinds them to the state’s fundamental features. [1] 

A pair examples from the last week’s reading can illustrate the point. 

First, an excerpt from Maurice Wormser’s book Disregard of the Corporate Fiction, originally published in 1927. Wormser was a renowned appellate attorney, and a well-known law professor; he’s still the namesake of Fordham’s Moot Court Competition. Among other things, he popularized the phrase “piercing the corporate veil,” which you’ve heard a lot if you follow Chancery Court nonsense. 

Discussing various definitions of the corporation, he observed:  

“Just what the corporation is, no two legal authorities are in accord. Definitions are dangerous. While I have no desire to enter into the philosophy of the subject, it should be observed that there are a number of very distinct theories, each hopelessly repugnant to the others. The German, or association theory, which has such an eminent English follower as Sir Frederick Pollock, views a corporation almost as a natural person and regards it as acquiring an “organic character which qualifies it to participate prominently in the life of the state and in the law.”  I doubt, however, whether even the most advanced German philosopher would seriously argue that a corporation could marry or be given in marriage, or that it could vote at an election.” [emphasis mine] [2]

Worsmer, deeply experienced corporate law – and thus a man familiar with Delaware – should have known better. A few years later, in 1931, Milford, DE did what Wormser thought no German philosopher would argue for, and amended its municipal charter to grant corporations suffrage rights, to wit: “every owner of property whether individual, partnership, or corporation shall have one vote for every dollar or part of dollar of tax paid” in special bond elections. So not only could corporations “vote at an election,” they could do so at a bargain exchange rate of one dollar per vote. [3] 

(NB: Milford was probably not the first Delaware municipality to do this – there was probably at least one town with corporate voting rights extant when Wormser published – but it’s the first I have specific evidence for).

Second: a half-century later, but similarly unfamiliar with Delaware’s expanding grants of corporate suffrage rights, in 1973, Justice William Douglas wrote in horrified dissent from the majority in Sayler Land Company v. Tulare Lake Basin Water Storage District. The case was one of a series that sought to re-establish property as the preeminent force in American politics, after anti-democratic forces had lost ground with end of Jim Crow and the development of the “one man, one vote” doctrine. In this particular case, the majority approved voting rights for large agricultural corporations in special Texas water district elections, on the basis of these corporations having a “personal” stake in the districts, as ratepayers.

Douglas, a proud New Dealer outvoted by an increasingly reactionary majority, was appalled at this extension of corporate personhood into the voting booth:

“It is indeed grotesque to think of corporations voting within the framework of political representation of people. Corporations were held to be “persons” for purposes both of the Due Process Clause of the Fourteenth Amendment, and of the Equal Protection Clause. Yet, it is unthinkable in terms of the American tradition that corporations should be admitted to the franchise. Could a State allot voting rights to its corporations, weighting each vote according to the wealth of the corporation? Or could it follow the rule of one corporation, one vote?

It would be a radical and revolutionary step to take, as it would change our whole concept of the franchise. … Four corporations can exercise these governmental powers as they choose, leaving every individual inhabitant with a weak, ineffective voice. The result is a corporate political kingdom undreamed of by those who wrote our Constitution.” [emphasis mine] [4]

Alas for Douglas – and for us – there are more things in Delaware than dreamt of in his philosophy.

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Image source: Clément Bardot, English:  Magic Kingdom, Disney World, Orlando, Florida, USA, May 27, 2015, May 27, 2015, Own work, https://commons.wikimedia.org/wiki/File:Magic_Kingdom,_Disney_World.jpg#/media/File:Magic_Kingdom,_Disney_World.jpg.

[1] This lack of imaginative capacity is perhaps analogous – if less justifiable – to “normie” or “apolitical” Americans’ approach to the authoritarianism of the Trump/Musk regime; it is so out of scope that such a thing would happen, that it simply can’t be happening. 

[2] I. Maurice Wormser, Disregard of the Corporate Fiction and Allied Corporation Problems (New York: Baker, Voorhis and Co., 1929), p. 3 

[3] 37 Del. Laws, c. 162, “An Act Changing the Name of ‘The Town of Milford’ to ‘The City of Milford’ and Establishing a Charter Therefor,” Approved April 25, 1931, p.595. 

[4] Sayler Land Co. et al. v. Tulare Lake Basin Water Storage District, U.S. 410 (1973): 741-42