Freedom Fries: McDonald’s and the Fourteenth Amendment

Shawn HamiltonMarch 26, 2015
It's everwhere. / Photo by Steve Jurvetson.

It’s everywhere, and it’s nowhere. / Photo by Steve Jurvetson.

In his book Fast Food Nation, Eric Schlosser demonstrates the dominance of McDonald’s, not just in the context of the history of the fast food industry, but in the history of all industry. McDonald’s is the largest owner of retail property in the world. The company trains more Americans than the U.S. Army. The McDonald’s logo is more recognizable than the Christian cross. Ronald McDonald is second in popularity with children to only one figure—Santa Claus.

By any (and every) measure, McDonald’s is a juggernaut. And yet the prospect of a $15 per hour minimum wage in Seattle has led this grand institution to turn, not to greater economies of scale or improvements in vertical integration, but to the Fourteenth Amendment—a law ratified in 1868, primarily to protect the rights of recently freed slaves.

The McDonald’s corporation’s efforts to avoid the mandate of Seattle’s minimum wage increase hinges on two claims. One is that the company’s individual franchisees are small businesses. The other is that, for legal purposes, the company itself is a person. This is not just a consequence of the recent Citizens United verdict, which some have suggested is the most “sweeping expansion of corporate personhood to date.” Nor is it just another innovation peculiar to the fast food industry, a legal version of a rib sandwich that contains no ribs. It’s an attempt by a corporate giant to use the language of freedom to promote the interests of capital.

This is an old trick. In the years following the ratification of the Fourteenth Amendment, its most successful claimants were not black Americans fighting the rising tide of the Klan or Jim Crow, but rather railroads and utilities companies fighting “discrimination” by the state. The 14th amendment would become what W.E.B. Du Bois called the “chief refuge and bulwark of corporations,” while African Americans spent the next century trying to make it applicable to actual human beings.

The Seattle minimum wage law, passed last June, gives small businesses seven years to bring wages to the new level, and large businesses three years to comply. McDonald’s is considered a large business for the purposes of the Seattle law, a distinction that Matthew Haller, the senior vice president for the International Franchise Association, calls part of a “larger assault on American free enterprise.” That’s not all; the other part of this legal “assault” against McDonald’s is the recent verdict by the National Labor Relations Board that deemed the corporation and its franchisees joint employers of franchise workers, making them both liable for labor violations.

However, while the company vehemently denies the “joint employer” label, it works tirelessly in a number of ways to prove it true. Due to their corporate ties, franchisees get more federally secured loans from the Small Business Administration than any other kind of business. McDonald’s corporate determines the software, the hardware, the hiring practices, and the location of the franchisee. The relationship is one of joint interests and joint profits. Yet taking the next logical step—assigning joint responsibility—is framed as an “attack on free enterprise” (while using corporate leverage to get government loans, presumably, is not).

So, McDonald’s is hardly a small business. But is it a person? Individuals have wielded great—and in some cases, seemingly infinite—power since antiquity. J.P. Morgan had enough cash to bail out the federal government. Alexander and his army conquered the known world. Jesus, Muhammad, and Buddha all continue to inspire centuries after their deaths. When people wield the most power, they do so through institutions. McDonald’s represents the collective will and interests of a large number of people. But that does not make these people the business, or make the business a person.

In fact, the institutions’ ability to amplify peoples’ will while diffusing their responsibilities is what makes an institution so appealing to those who want to project power. As Schlosser tells it, in the 1950s, McDonald’s early investor Ray Kroc defined the business as a seller of franchises. Harry Sonneborn, who was CEO in the 1970s, said the company was in the “real estate” business. McDonald’s in the late 1990s defined its goal as “global realization.” Today, McDonald’s is a global institution with more franchises and retail property than any in the world—and the institution that manages all of this is, yes, a business.

That all of this is framed as being up for debate shows how far McDonald’s and corporations in general have gone in democratizing, not just burgers, but corporate talking points. The comment sections of articles involving the Seattle minimum wage fight are peppered with the pronouncements of new age social Darwinists and tycoons on the make. Some echo the claim of right-wing pundit Eric Erickson, that anyone making minimum wage over thirty has “failed at life” Others ponder the impact of a minimum wage hike on stock prices or burger prices. Still others ponder the future of a “free market society” where “third parties” can vote themselves higher wages without having earned “higher skills.”

Yet while these minimum-wage critics can imagine the options available to the worker, they are unable to apply that imagination to the company. The worker can “learn more,” they argue, but the notion that McDonald’s corporate might lower its fees or rent to ease the burden on franchisees is beyond imagining.

This crisis of imagination on the Right is mirrored by a crisis of confidence on the Left. While people—actual people—are pondering the wisdom of collective bargaining, voting, and organizing, McDonald’s is using those same tools to great effect. In this fight, McDonald’s is affirming the ideals that large companies often despise; if it can put aside its differences with competitors to pursue a collective goal, and if it can work tirelessly to reshape the law, then so can workers, organizers, and voters. So in one small sense, McDonald’s is promoting greater equality and freedom—just probably not the kinds it would prefer.

Shawn Hamilton is a New Jersey-based blogger and filmmaker. He is currently producing a documentary called Game Theory: Caste, Cartels, and College Sports that looks critically at college sports. He blogs at Dueling Interests and tweets @duelinginterest.