Progress and Procedure

Why should progressive or grassroots groups care about the legal requirements of non-profit corporate law? Marginalized people face a host of burdensom, mistrustful, and patronizing regulatory requirement to access the most basic support. All of this draws their attention and energy away from pursuing systemic change and instead focusing on meeting basic needs. So when they do get together to pursue that reform and their faced with yet another litany of rules, it is understandable that they would be suspicious.

Now one response is to avoid corporate structures altogether. Sure this means you won’t be eligible for most funding, but “the revolution will not be funded” anyway. This gives you maximum flexibility. Another view says incorporate, take advantage of the system, but don’t take it too seriously. There is very little enforcement anyway.

I think there is an important place for the first approach, but both need to recognize their limits in two ways.

Firstly, I see people making the mistake, once they have rejected the legal framework of not replacing it with any similarly robust set of internally determined values-based procedures. The almost innevitable result of the ad hockery that often (but not always) results is inefficiency and internal division sooner or later. There is a natural cap on the size of a group whose inner diversity is held together by personal relationships, trust, and improvisation. Unfortunately, this cap on size can be ill suited for the systemic nature of the problems at hand. To the extent that this group ends up exerting any authority, it may beĀ  more vulnerable to corruption.

These groups risk reinventing the wheel (which all groups have to do to some extent) more than necessary. This is cheap in the beginning but the costs add up down the road. Meetings get bogged down in questions of procedure because a whole framework was not borrowed at the beginning. Of course, other governance and administrative frameworks exist outside the law and they offer solutions. However, it should be remembered that nonprofit corporate law comes out of a tradition which has been very successful at coordinating action at a massive scale (towards violent an extractive ends among others). Nevertheless, there is real insight there.

The second incompleteness is that by turning away from the legal framework, groups undermine the genuine collective interests that are embodied in them. The best example is transparency. Out of date records about Boards means there is poor public accountability for thousands of groups benefitting from a public framework. Of course, there are coubter-vailing privacy and safety concerns. Nevertheless, it should be recalled dark money networks have been allowed to thrive in the US precisely in this kind of environment.

All of the above assumed the activists in question are interested in procedural rights. There is, unfortunately, an all too common attitude that the cause is too important to be held up by bourgeois notions of legality. This eschews not only the existing corporate legal framework but any procedural framework that holds up the achievement of the group’s goals. This ends justify the means attitude is dangerous for two reasons. Firstly, it is dangerous because objectives do not exist in a vacuum. The value of that objective does not liquidate the values embodied by the procedural rights on the way. These exist alongside each other every step of the way or else there is no reason to think they will co-exist in the end. Indeed, this leads to the second problem because procedural rights are a check on the centralization of power. Power once centralized will attract people whose desire it is simply to wield power. They will likely be more adept at it then the earnest founders and violence will ensue.

Finally, it should be noted that procedural rights are a way of embodying the value of individuals (or groups) in themselves. The protection says “I completely disagree with what you are proposing, but because YOU are proposing it, I will listen.”

There is much more that can be said and much of the above that can be nuanced. Nevertheless, what remains is that procedure is not mere red tape, it is the sinews that binds together the social body.