The Problem with an "Anti-Corporate Personhood" Amendment

Across the country, one of the rallying cries of the “Occupy” Movement has been the demand to eliminate “Corporate Personhood,” a concept that was cemented into law by a US Supreme Court decision commonly called the “Citizens United” decision [Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (2010)) The decision in essence, permitted corporations to spend unlimited amounts of money in political campaigns as an expression of First Amendment Speech rights. Since that decision, various groups and initiatives have arisen in an effort to overturn it and remove this Constitutional right from applying to Corporations. Unfortunately, in their passion to end corporate domination of US politics, it appears that some of these proposals may end up causing even greater potential harm to our society. A sober reflection on the issue suggests that a blanket “anti-Corporate-Personhood” amendment may not be the wisest route...and that better alternatives exist.

The effort to limit corporate control of the electoral process began in earnest with the McCain-Feingold Act, otherwise known as the Bipartisan Campaign Reform Act of 2002, which was adopted on March 27 of that year. The Act limited corporate contributions to campaigns, and prohibited the airing of corporate-sponsored political advertising in the weeks immediately preceding an election.

In an early test of that Act, Citizens United – a conservative advocacy group – challenged the right of the media to show the documentary “Fahrenheit 9/11,” which was highly critical of the Bush Administration, during the 2004 campaign. When the Federal Elections Commission held that showing this film was not prohibited by the Act, Citizens United then geared up for its own documentary. In the 2008 campaign, it promoted it's film titled, "Hillary: The Movie," which was critical of then-Senator Hillary Clinton, to DirecTV Satellite subscribers. With some troublesome reasoning, the Federal Election Commission and subsequent courts ruled against this movie, and the case reached the U S Supreme Court.

In 2010, a highly fractured U S Supreme Court ruled in a landmark decision in favor of Citizens United, striking several sections of the McCain-Feingold Act as Unconstitutional. It was a decision that was (and remains) highly controversial.

The Court held that the First Amendment Freedom of Speech prohibits government from censoring political broadcasts in elections when those broadcasts are funded by corporations or unions.

The Court decided by a slim 5-4 majority, but even the five Justices in the majority wrote three separate opinions. Justices largely seen as conservative (Alito, Roberts, Scalia, and Thomas) were joined by moderate/swing vote Justice Kennedy in the decision. The Courts liberal block (Breyer, Ginsberg, Sotomayor, and Stevens) opposed the decision.

The dissenting opinion was stinging in its criticism of the majority. In it, Justice Stevens argued that the Court's ruling

"…threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution…”

and argued that by addressing issues not raised not even raised in the court pleadings by Citizens United, the majority

"changed the case to give themselves an opportunity to change the law…The Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

The case raised eyebrows in many circles: The American Civil Liberties Union, normally identified with “liberals,” actually filed a brief with the Court in support of Citizens United because of the over-riding free speech issue. After the decision, it was discovered that Justice Thomas’ wife was the founder and president of Liberty Central, a conservative political advocacy group whose operations were directly affected by the decision, bringing into question both his ethical and legal right to participate in the decision.

In the wake of the decision, a number of proposals have been suggested to overturn it, or to find alternative mechanisms to limit corporate contributions in elections. Some groups have arisen - with growing public support – promoting a Constitutional Amendment that would declare that Corporations are not “persons,” and therefore not entitled to Constitutional Protections. One such group, “Move to Amend,” has proposed an Amendment, that reads in part:

“The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities, such as corporations, limited liability companies, and other entities, established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.”

While well-intentioned, I think this is a classic case of attempting to kill a gnat with a sledgehammer."

There are many rights guaranteed in the Constitution’s Bill of Rights in addition to Speech. The above amendment – which is growing in popularity and being promoted in towns and cities across the country – strips corporate entities of all Constitutional protections. Consider the following Constitutional Rights that could be affected:

Amendment I: Congress shall make no law…abridging the freedom of …the press.

Amendment III: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

These are all Constitutional rights currently enjoyed by all residents of our nation, including non-citizens and corporations. Amendments similar to the one proposed would eliminate these Constitutional rights for corporations.

Do we really want to live in a country where the corporate media – our magazines, television stations, radio reports, and internet providers – are NOT protected from Government censorship?

Do we really want a country where the military – which has already vastly expanded its domestic jurisdiction through the Patriot Act – can be stationed in your workplace against the will of that company?

Do we really want warrantless searches of our office desks, file cabinets, computer servers and systems, and office spaces by the local police, the FBI, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco and Firearms?

What about rights to Due Process? Equal Protection of the Laws? How about the Constitutional clause that prohibits Eminent Domain without proper compensation? Do wwe really want to say that businesses dont have these protections?

For over 200 years, a broad array of Constitutional Rights have protected the American people from intrusive government actions at home and at work. It is understandable that citizens want to reverse Citizens United; but the complete removal of all rights enjoyed by companies is a ‘cure” worse than the disease itself.

Reasonable limits (or prohibitions) on corporate contributions can be achieved through amendments that are far more ‘precise’ and less draconian than this. Professors Lucian Bebchuk at Harvard Law School and Richard Squire at Columbia Law School have proposed that legislation could be adopted, consistent with the Citizens United decision, giving shareholders (rather than Corporate Executives) the right to determine if or how corporate money could be spent in political activities. Since this could be done through simple legislation, it would be far easier than a Constitutional Amendment. Others have called for an simple Amendment that would declare that money is not speech, thereby empowering states and the federal government to re-implement McCain-Feingold or similar statutes.

These would both be easier and more effective restraints on the Citizens United decision, and avoid the danger of an greater erosion of American citizen’s Constitutional Rights.


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Mitt Romney: Bind US Spending to Foreign Corporate Investment

Mitt Romney, who prides himself on being the candidate with ‘business’ experience, has proposed some fiscal measures which evidence a decided lack of serious economic analysis.

In advertisements that have been running non-stop here in New Hampshire, Romney presents his three-point plan to reign in federal spending. In the ads, he proposes,

“…capping federal spending as a percentage of GDP at 20% or less…”

There are any number of issues Mitt is going to have to explain with this “plan.” He can start with any of these:

1) GDP, or Gross Domestic Product, is the value of all the goods and services produced within a society. In the United States, current annual GDP is approximately $14 Trillion dollars annually. With federal spending capped at 20% of this number, that would result in an annual federal budget of 2.8 Trillion dollars. The Fiscal Year 2010 budget is 3.45 Trillion, so Romney’s plan would require cutting spending by 650 Billion dollars.

To provide a sense of this proposal, the entire amount of Social Security payments made to retirees annually is 701 Billion. The total amount of “Discretionary Spending” (spending that excludes social security, medicare, interest, defense, and other ‘mandatory’ payments) is 660 Billion. If Mitt is not proposing cutting off social security or eliminating the military, it would appear that he is proposing an elimination of all discretionary spending whatsoever: Bridge Rehabilitation on Interstates, Superfund Cleanups of Toxic Waste sites, Food & Drug Administration approvals of cutting-edge pharmaceuticals, Coast Guard operations, Community Block Grants for Economic Development, Jobs Trainings Initiatives, and hundreds of other federally-designated programs. EVERYTHING.

2) By basing spending on GDP, his proposal means that the budget will always be out-of-synch with reality. The Budget for the future fiscal year is voted on during the current year, and it will be based on figures from the past year's GDP (which would still be in revision), resulting a two year ‘mis-match’ of GDP and spending authorizations.

3) By capping spending to a percent of GDP, Romney opens up the country to sudden, unexpected budget shocks since GDP is calculated after each quarter, but then revised in subsequent quarters.

For instance, on November 22 of this year, economists in Washington revised the third-quarter (July-August-September) GDP downward to a growth of 2% from their previous report of 2.5%. While a change in .5% may not sound like much, a .5% change in a 14 Trillion dollar GDP is a difference of 70 Billion Dollars in GDP. Under Romney’s plan, such a revision would result in the sudden elimination of 14 Billion in spending from the Federal Budget. For comparison purposes, that is greater than the entire annual budgets of the Departments of the Treasury, Commerce, Interior, and Environmental Protection.

4) Lastly, and perhaps most important, is the fact that Romney’s plan would make American Government expenditures dependent on the activities of foreign companies operating in the United States.

The GDP figure is obtained by adding up the value of all goods and services created in the US. It does not matter whether the goods produced are made by American or foreign companies, as long as they create the products on US soil. Currently, 3.2 Trillion dollars of our 14 Trillion GDP is derived from foreign companies doing business on US soil.

In other words, 22% of our total GDP comes from these firms. It also means, that under Romney’s plan, 22% of the American Government’s spending would depend on continuing product development by companies from foreign nations located in the US. That amounts to 760 Billion dollars of American spending being dependent on the level of foreign investment.

Again, for comparison purposes, that amount is the equivalent of our entire Defense Budget.

A curious proposal, coming from the candidate who has so willingly rattled sabers with Iran.


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Milton Hershey rejects HIV-positive Student: Official Statement & Reaction

In an almost incomprehensible burst of ignorance, prejudice, and chutzpah, the highly-vaunted Milton Hershey School (a private, tuition-free boarding school), issued a statement coinciding with World AIDs Day explaining their refusal to admit a student due to his HIV positive status.

What follows is the official statement by the school (in italics), with my commentary following in boldface type.

HERSHEY, Pa., Dec. 1, 2011 -- /PRNewswire/ -- The following statement was issued today by Connie McNamara, Vice President, Communications at Milton Hershey School:

Milton Hershey School had planned to file a request in federal court asking the court to review our decision to deny enrollment to a child who is HIV positive because of concerns for the health and safety of our current students.

Nonsense. There ARE NO significant health or safety concerns. HIV is not transmitted by saliva, sneezing, sweat or tears; it is not transmitted by sharing toilets or bathrooms, drinking glasses, laundry facilities, towels, beds, dorm rooms, or eating utensils. In addition, the student in question is on antiretroviral medications, reducing the ability to transmit the virus, even in the most conducive of circumstances through specific kinds of sexual acts or blood interaction, to a fraction of 1%. It is not surprising that a Hershey spokeswoman, appearing on Anderson Cooper 360 tonight, was unable to name the doctor or medical personnel that advised the school of any such “concern.”

We had been in discussions with the AIDS Law Project of Pennsylvania, which is representing this 13-year-old boy. Recognizing the complex legal issues, the School was preparing to ask the court to weigh in on this matter…

There are no “complex legal issues.” Persons with HIV are covered by the Americans With Disabilities Act. Under the ADA, all people, including those with disabilities, are given equal opportunity to use or enjoy a public accommodation’s goods, services, and facilities. Public accommodations include restaurants, hotels, theaters, doctors’ offices, dentists’ offices, hospitals, retail stores, health clubs, museums, libraries, private schools, and day care centers.

… Unfortunately, attorneys for the young man took the adversarial action of filing a lawsuit against the School.

The first resort of bullies when victims push back is to call the victims names; they attempt to characterize those who insist on their rights as crybabies, divisive or ‘adversarial.’ The young man’s legal suit is not out of place or adversarial; the fact is, Milton Hershey has no basis in medicine or law for denying the student admission, and the students suit against the School is an entirely appropriate avenue for redress. Hershey’s statement is the standard “blame-the victim” defense.

The decision to deny enrollment was a challenging one for us to make. Like all our enrollment decisions, we need to balance our desire to serve the needs of an individual child seeking admission with our obligation to protect the health and safety of all 1,850 children already in our care…

Again, the school takes the odd position that their school is somehow ‘unique,’ a phrase used later in this press release and used multiple times in media interviews. The ADA covers private schools; there is nothing about Hershey that would exempt them. There are hundreds of boarding schools in the United States, a number of which house over 1,000 students. There are schools designated as Military Academies, Therapeutic Schools, schools for Students in Recovery, Experiential, Learning Disabled, Religious, Fine-Arts based, Math & Science-based, and Performing Arts based. In spite of Hershey’s assertions, their duty to care for their residential students is no different than any other of these schools…and all are covered by the ADA.

Attorneys for this young man and his mother have suggested that this case is comparable to the Ryan White case. But this case is actually nothing like the Ryan White case.

Actually, it is precisely like the Ryan White case, which, ironically, we referenced in a blogpost yesterday [see below]. This is a decision to exclude a student based on ignorance of medicine and in violation of federal statute. It is based on the unreasonable fear & loathing of HIV, and nothing more.

Milton Hershey School is not a day school, where students go home to their family at the end of the day. Instead, this is a unique home-like environment, a pre-K -12 residential school where children live in homes with 10-12 other students on our campus 24 hours a day, 7 days a week.

Again, Hershey is by no means unique in this, as hundreds of boarding schools do likewise. Hershey is making the entirely illogical arguement that students with HIV should not live at their school because it is "home-like," "residential," and where "children live," (their words)...but should instead live at home - which is the ultimate 'residential setting.'

In order to protect our children in this unique environment, we cannot accommodate the needs of students …

Yes, Milton Hershey, you can, and you must. You must accommodate the daily medical needs of students with insulin-dependent Diabetes. Epilepsy. Asthmatics. It is part of running a boarding school. If you can not ensure that a resident takes a pill, you need to reconsider your ability to operate a boarding school.

…with chronic communicable diseases that pose a direct threat to the health and safety of others.

This is not an argument against admitting a student; this is evidence of your own medical ignorance. No health or safety threat is present.

The reason is simple. We are serving children, and no child can be assumed to always make responsible decisions that protect the well being of others.

This is a well-crafted innuendo concerning the prospective students sexual activities, implying that the student might attempt sexual activity with another student. Well guess what, Milton Hershey…if that is your concern, you have a much bigger problem than this one student: EVERY one of your hormone-exploding students might be tempted to engage in sexual relations with other students, and pass along not only HIV, but syphilis, gonorrhea, chlamydia, herpes, genital warts, scabies, hepatitis, and HPV. Your reasoning suggests that you should reject ALL students who might be tempted to engage in sexual activity; In that case, you might want to consider closing down entirely, because all teenage students present that risk.

That is why, after careful review and analysis, we determined we could not put our children at risk.

No, this was not after “careful review and analysis.” There is no analysis of the medical or legal issues; there is only an unwise, illegal, and cruel response based on hysteria that tarnishes the reputation of a once-respected institution.



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World AIDs Day: From Ryan White to the Repeal HIV Discrimination Act

Today, December 1, is recognized as World AIDs Day, which has been commemorated since 1988 as the world's first global Health Day. It is an opportunity for people worldwide to unite in the fight against HIV, show their support for people living with HIV, and to commemorate people who have died. An estimated 33.2 million people worldwide live with HIV today, making it one of the most pervasive epidemics in recorded history. Despite improved access to antiretroviral treatment and care in many regions of the world, the AIDS epidemic still claims an estimated 2 million lives each year, about 13% of whom are children.

The HIV epidemic looks very different than when it was first identified in the early 1980s, when it was known variously as “Gay Related Immune Deficiency” and “Gay Bowel Syndrome” (Immunologists have since determined that deaths from AIDs were actually occurring in the 1950s, but were not yet accurately identified). During the 1980s, entire neighborhoods were decimated as the virus spread, with little understanding as to how it was transmitted or how to control it. At the height of the crisis, 50% of Americans believed that patients with HIV should be quarantined. In 1992, while running for the US Senate from Arkansas, Mike Huckabee echoed this sentiment when he declared,

If the federal government is truly serious about doing something with the AIDS virus, we need to take steps that would isolate the carriers of this plague…. It is difficult to understand the public policy towards AIDS. It is the first time in the history of civilization in which the carriers of a genuine plague have not been isolated from the general population, and in which this deadly disease for which there is no cure is being treated as a civil rights issue instead of the true health crisis it represents.

But perhaps no chapter in American history displays the degree of fear and widespread ignorance of HIV transmission than the storm surrounding Ryan White.

Ryan Wayne White (December 6, 1971 – April 8, 1990) was a teenager from Kokomo, Indiana who contracted HIV from tainted blood received in a transfusion (Ryan had hemophilia). After his initial diagnosis, Ryan’s health improved and his mother asked if he could return to school. 117 parents (from a school of 360 total students) and 50 teachers signed a petition asking school leaders to ban Ryan from school, and the school prohibited him from attending. The Indiana State Department of Education insisted that school permit Ryan to attend.

When Ryan tried to return to school, many parents and teachers continued to oppose his attendance, even though medical authorities at the Center for Disease Control assured them that there was no danger. The New England Journal of Medicine published a study on HIV transmission that concluded,
“…the risk of infection was minimal to nonexistent, even when contact included sharing toothbrushes, razors, clothing, combs and drinking glasses; sleeping in the same bed; and hugging and kissing…”

Nonetheless, the school required him to eat with disposable utensils, use separate bathrooms, and waived his requirement to enroll in a gym class. When a bullet was fired through the Whites' living room window, the family decided to leave Kokomo, and Ryan enrolled in a new school in Cicero, Indiana. Ryan would win his court battles, but died in April 1990 – just one month before his graduation.

In his honor, Congress passed the Ryan White Care Act, which remains the largest program providing care for those with HIV in the United States.

Unfortunately, the fear and marginalization of people with HIV continues.

On August 2, 2011, we reported in this blog on the draconian – even medieval – law passed in Iowa in 1998 that criminalized potential HIV transmission as a Class B felony. The sentence designated the ‘carrier’ as a felon, imposed a sentence of up to 25 years in prison, and assigned him or her lifelong sex-offender status, even if the contact was consensual. Under this law, a person aware of his or her positive HIV status does not actually have to transmit the HIV virus, they only have to engage in intimate contact with another person, whether or not that contact is consensual, to be found guilty. The penalty exceeds that for manslaughter. Since the law was enacted, 26 people have been convicted under the law and nine people currently sit behind bars. [Iowa is not alone. 34 states have prosecuted individuals for criminal transmission (or potential transmission) of HIV.]

Seven weeks after we reported on the Iowa convictions, on September 23, 2011, Congresswoman Barbara Lee (D-California) introduced H.R. 3053, the Repeal HIV Discrimination Act. This bill would require a review of all federal and state laws, policies, and regulations regarding the criminal prosecution of individuals for HIV-related offenses. It is the first bill to take on the issue of HIV criminalization, and provides incentives for states to explore repeal or reform of laws and practices that unfairly target people with HIV for consensual sex. Forty different medical and care-giving organizations have signed on to support the bill. This bill recognizes that the earlier criminalization statutes are based, wholly or partially, on prejudice, ignorance, and poor science.

The following sound reasons have been offered for ending this criminalization of HIV positive people:

1) Criminalizing HIV increases the stigma associated with the illness. Increasing the stigma means that people will be less likely to reveal their status and obtain treatment.

2) HIV is no longer the death sentence it was in the 1980s, nor does it necessarily lead to AIDs. Modern antiretroviral drugs have turned HIV into a lifelong medical condition, not unlike diabetes and high blood pressure. Most state criminal statutes have wrongly assumed that transmitting HIV is akin to murder, and the penalties are excessive.

3) The more cases that come to court, the more people will believe that the responsibility for having safe sex should lie solely with HIV positive people. Safe sex should always be a shared concern.

4) The law has little effect on people's sexual behavior; it does, however enable lovers to use the law as a way of exacting revenge.

5) Prosecuting positive people for reckless transmission provides a disincentive for getting tested: those who know of their positive HIV status are liable under the law, but those who remain ignorant - even purposefully – are not.

6) Most laws do not understand the ways in which HIV is transmitted. Some apply to actions such as spitting (HIV can not be transmitted through saliva), and most apply to anyone who is HIV positive, even though scientific studies have shown that many of those on regular mediation are unable to transmit the virus.

7) Imprisonment does nothing to help people accept their HIV and take a safer attitude towards sex. In addition to imprisonment costs, taxpayers would be forced to cover HIV medical costs of approximately $35,000 per inmate per year. While in prison, the sharing of needles for injecting drugs and the high incidence of male rape and sex between men in prisons makes it likely that an increase in HIV transmission will actually take place behind bars.

8) Criminal cases require the police to investigate the background of anyone they suspect of having transmitted HIV. Accused persons could suggest any number of other possible partners as sources for HIV transmission; this represents a serious invasion of privacy for all actual or potentially named sexual partners – including those who claim to be supportive of such laws.

9) No other illnesses are treated with the same hysteria as HIV, and few people are ever criminalized for transmitting them. No state has ever prosecuted an employee of a nursing home for coming into work with a contagious flu and giving it to the residents, even if several of those residents subsequently died. HIV is only singled out in criminal cases because the stigma associated with it.

10) Statistics show that women often know their status through attending health clinics more frequently than men. As a result, an HIV positive man may accuse his female partner of infecting him, because she was diagnosed first, even if he infected her and was not diagnosed until much later.

Sign the Petition to Pass the Repeal HIV Discrimination Act


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Hallelujah Corporations...A Musical Satire

If any music video deserves to go viral, it's this one: a fantastic parody performed at the Grover Cleveland Dinner, held by the Carroll County (NH) Democrats (Funny, Great singing, and subtitles for ease of understanding)




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33rd Anniversary: Assassinations of Harvey Milk and George Moscone

Statement, November 27, 2011 by Stuart Milk, nephew of Harvey Milk, co founder of the Harvey B. Milk Foundation

My uncle Harvey Milk gave us his life 33 years ago, knowing that the first of any civil rights movement, who so clearly and loudly proclaim their right to equality, most often meets a violent and sudden end. George Moscone was a steadfast ally and friend of both my uncle and to the core principles of equality that Harvey represented.

Today the memory of both men stand as beacons of light not just in San Francisco, not just in California and not just in the US, but across the globe to all who are diminished for simply being authentic. I am frequently asked if I am deeply saddened that my uncle Harvey did not get to see all those who eventually would proclaim a right to live openly and thereby come to stand on his shoulders or that he also did not see all the places where the light of equality would burn brighter than the darkness of antiquated prejudice-and I have long replied, he did see all those open and proud people living an authentic life and he did see those cities and states and nations that would etch equality into both their laws and their societal values, for he could not have given his life without his seeing and visualizing the dream of that day and he has left us, all of us, with a compass based on hope, hope born of bullets, not smashing into his brain, but smashing our masks and our fear of authenticity.

We also offer timely reflection today on my uncle’s ground breaking collaborative work and his understanding and explanation that we are not weakened by our differences, in fact that our potential is only reached when the full diversity of all those that make up our communities are celebrated. Today his legacy is not of a people or community or a nation being better then another, but communication and teaching of the knowledge that we are so much less when we do not embrace, without qualification, all members of our unique and varied humanity.

My uncle’s legacy has many monuments, not the least of which are the openly LGBT public officials who, through their willingness to serve and live a publicly visible life, continue to offer Harvey Milk style leadership to a world yearning for these examples. And all our strong allies, like President Obama and Democratic Leader Nancy Pelosi here in the US, and our many new allies across the continents who fight everyday to keep us all embraced. And monuments to Harveys legacy are given light each day with every new young gay, lesbian, bisexual, and transgendered person who comes out and lives an authentic life – these are real tangible living monuments to Harvey’s legacy that have the clear impact to effect change, a real enduring societal change. For as my uncle said, when they know us, when we are visible to all in our lives, hate diminishes.

Today we both mourn our loss and celebrate the legacy we were left with. The memory of Harvey and George burns bright and they have inspired equality minded communities across the country and out onto the global stage to keep alive both Harvey’s dream of a truly inclusive society, without qualification and to follow the example of enduring and selfless collaboration that marked the life of both Harvey Milk and George Moscone.

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