The Power of the People is Greater Than the People in Power

7 April 2025

By Robert C. Hinkley

The title's words, taken from Sen. Corey Booker’s 25 hour speech to the U.S. Senate last week, should be encouragement to us all.  They come at a time when people in many countries seem ready to give up on representative government.  His words remind us that, in a democracy, ultimate authority rests with the people, not just the rich and powerful as we are sometimes led to believe.  The people have the power to overcome the influence of the wealthy and force elected officials to do what is necessary to protect the public interest.  Sometimes they must use it.

Modern democracy is designed to safeguard everyone’s freedom while protecting and advancing the public interest at the same time.  It’s a system of government where everything is legal until a law is enacted providing otherwise.   

This has both positive and negative implications.  On the positive side, it protects everyone’s freedom to the extent no law prohibits particular behaviour.  As is sometimes said, “Go ahead.  There’s no law against it. It’s a free country.” 

On the negative side, until a law is enacted prohibiting damaging behaviour, anyone with the inclination and capacity to inflict harm is allowed to continue.   When the harm inflicted is widespread, continuous and permanent (i.e., severe), both the public interest and democracy are in trouble.

Unfortunately, this is the situation modern democracy now faces.  Too often, the elected representatives of the people pay more attention to the desires of big corporations than the public at large.  When this happens, democracy no longer governs corporations.  Instead, corporations rule and the public interest suffers.  A good example is the emission of greenhouse gases (GHGs). Thanks to the extensive lobbying efforts of the fossil fuel industry, legislatures all over the world have been unwilling to enact legislation to keep the industry from emitting GHGs even though such emissions have been recognized for decades as the primary cause of global warming.   

This is where we should listen to the words of Senator Booker.   In a democracy, the people have the ultimate power—more power than any company or industry.  The will of the people, wisely applied, can force legislatures to enact laws the people desire, when the legislators acting on their own, will not. 

Stopping corporate abuse that causes severe harm is a matter of going back to first principles. Government’s purpose is to protect the public interest.  Corporations only exist because governments have passed corporate laws giving investors the right to establish them and dictating how they’re to be managed.  It’s just common sense, institutions that need government to be formed should never be managed to undermine government’s purpose--protecting the public interest from harm.  If not from all harm, then certainly, at the very least, from harm which is severe. 

Existing corporate law, which directs management only to act in the company’s best interests, must be amended.  Conveniently, the corporate law, in this respect, is the same all over the world.  A one size fits all solution can be applied in each place where corporations can be formed.

The law should provide that, when a company is discovered causing severe harm to the environment or another element of the public interest (e.g., human rights, the public health and safety, the dignity of employees or the wellbeing of our communities), its management must take steps immediately to make it stop. 

It shouldn’t be a partisan matter. The environment belongs to and benefits us all.  No sane person wants to see it severely harmed.  We’re all customers. No company should be allowed to mass market dangerous products which damage our health.  At some time in our lives, most of us are employed. Everyone wants to be treated with dignity by their employer.  None of us want social media companies to use algorithms that spread hate and disinformation to set our communities against each other.

Existing law does nothing to require directors to protect the public interests.  It says only that they must “act in the best interests of the company.”  The people must demand that candidates for public office pledge to add to that a simple proviso, that acting in the best interests of the company “shall not include any action that results in severe damage to the environment, human rights, public health and safety, dignity of employees or wellbeing of the communities in which the company operates.”  

These words will make all corporations less inclined to harm the public interest and more inclined to protect it.  This change of mindset will make all companies better citizens.  That’s why it’s called the Code for Corporate Citizenship.

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Robert C. Hinkley is a retired corporate attorney, former partner at Skadden, Arps, Slate, Meagher & Flom

LLP. He is the author of “Time to Change Corporations: Closing the Citizenship Gap.” If you’re interested in adding the Code for Corporate Citizenship to the law where you live, he can be contacted at rchinkley1711@gmail.com.