Editorial May 22, 2015

TheWeekinCongress.com

Editorial

Wandering through Senator Hatch’s substitute amendment to HR 1314, making the bill a vehicle for congressional involvement, among other things, in the trade negotiation process, we come upon the definition of United States Person. Under the amendment such ‘personhood’ is extended to a citizen of the US but is also defined as “a partnership, corporation, or other legal entity that is organized under the laws of the United States; and… under the laws of a foreign country and is controlled by a partnership, corporation, or other legal entity that is organized under the laws of the United States or United States citizens, or both.

The concept of corporate personhood under the recent Supreme Court decision in Citizens United vs the FEC annoyed many. Historically, though, the Supreme Court has supported the idea of corporations being a ‘person’ based on the Equal Protection clause in the 14th Amendment to the Constitution; “  “Bradley Smith reported on NPR in 2009 that “Corporations are associations of individuals, with a right to defend their interests.” And therefore are recognized under the equal protection clause.

Smith is right and we go also back to 1818 to see Supreme Court opinions based on that concept. Perhaps the best example of the Supreme Court on the issue was stated in 1823 by Chief Justice Marshall; “”The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men.”

So corporate personhood has been around for some time but it was the Citizens United vs the FEC that raised red flags among those concerned with undue financial influence by corporations on election campaigns. But Citizens United really had more to do with whether or not politically influential media, produced by a media company, could be aired within 60 days of a general election or 30 days of a primary election and, under the Bipartisan Campaign Reform Act, that corporations and unions were prohibited from using their general treasury to fund “electioneering communications”. Citizens United did allow corporations that are not media companies to air politically influential media and to use their treasury funds to support or oppose a candidate or an issue supported by a candidate. It did not establish corporations as persons beyond what the Supreme Court had already determined; that corporations are entitled to some of the protections individual US persons enjoy under the 1st and 14th amendments.

If the Supreme Court has not established directly that corporations are ‘a’ person, rather an association of persons under the same roof, if you will, what is the purpose of establishing corporations as US persons in the Hatch Amendment to HR 1314. Searching the bill for the application of the personhood concept we find two areas; “to ensure (when establishing standards under the bill) a level playing field for United States persons in international trade and investment; and “to seek commitments to work jointly to encourage and support anti-corruption and anti-bribery initiatives in international trade fora, including through the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development, done at Paris December 17, 1997.

So, the definition of a US person to include US corporations and foreign corporations owned by US corporations or citizens in the amendment would seem to have no purpose which is always something to pay attention to in legislation.

The arguments against corporations as persons on the same scale as an individual US citizen, while the conclusion of corporate personhood under Citizens United was very much misunderstood, still have some weight; while corporations may be a group of individuals unified under the purpose of a corporation there is certain to be persons within the corporation with different political views than those supported by the corporation and the resources for that person to express his or her position wane in comparison to a corporate war chest. Corporations, in terms of total taxes paid, pay less than individual taxpayers each year, and corporations can profit from war but it is individuals who fight them at the risk of death or injury.

Those contrasts should be kept in mind as Senators consider the Hatch amendment and question why, after 200 years of Supreme Court decisions, see fit to codify in law that those corporations are US persons but not clarify to what extent. Somewhere down the line the matter will spend taxpayer dollars in lengthy court hearings. ##

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Quotes on the Issues

On HR 1806 – America Competes Act

”“Republicans who wrote this legislation have decided that they know better than America’s scientists and innovators. They arbitrarily pick and choose research programs they like at the expense of those they ideologically oppose – in other words, not peer review but political review – and they cut key areas of research far below the levels appropriated for Fiscal Year 2015, including the Manufacturing Extension Partnership program and R&D for renewable energy technologies.  How ironic that we have an R&D bill on the Floor, and they are cutting R&D technology here.” House Minority Whip Steny Hoyer (D-MD)

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On FISA and Mass Surveillance Reform

  “The tragedy of the matter lies in the fact that the government — including the legislative and executive branches of government, aided and abetted by an unchallenged FISA Court, is working in collusion to mislead the American public about the ability of the legislation to truly do what most Americans want — a Constitutional process that a) actually catches bad guys, and b) respects and enforces privacy rights under the Fourth Amendment. Both are ‘do-able’ and there is no balance — we can have both.” J. KIRK WIEBE, retired National Security Agency whistleblower

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On Reauthorizing the Export-Import Bank

“When private sector lenders are unable or unwilling to provide financing, Ex-Im fills in the gap for American businesses by equipping them with the financing tools necessary to compete for global sales. In doing so, the Bank levels the playing field for U.S. goods and services going up against foreign competition in overseas markets, so that American companies can create more good-paying American jobs.

“Because it is backed by the full faith and credit of the United States, Ex-Im assumes credit and country risks that the private sector is unable or unwilling to accept. The Bank’s charter requires that all transactions it authorizes demonstrate a reasonable assurance of repayment; the Bank consistently maintains a low default rate, and closely monitors credit and other risks in its portfolio.” Rep. Gregg Harper (R-MS-3rd)

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Foreign Affairs

What to do about ISIS

“At the political level…all the candidates, including Democratic presidential front-runner Hillary Rodham Clinton, will have to clarify whether they are committed to destroying ISIS, not just containing it, and whether they are willing to go the lengths necessary to achieve that.” Philip Solondz distinguished visiting fellow at the Washington Institute for Near East Policy on CNN

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Syria

Islamic State is thought to be holding sway over half of Syria’s landmass after its seizure of Palmyra, where it has reportedly begun massacring a rebellious tribe and faces no opposition to sacking the city’s ancient ruins.” Kareem Shaheen reports in The Guardian.

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ISIS Defined by its Leader

“Islam was never a religion of peace. Islam is the religion of fighting,” Baghdadi stated. “No one should believe that the war that we are waging is the war of the Islamic State. It is the war of all Muslims, but the Islamic State is spearheading it. It is the war of Muslims against infidels.”  ISIS Caliph Baghdadi reported in the Christian Post.

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Yemen; Who’s Fighting Whom?

In recent months Yemen has descended into conflicts between several different groups, pushing the country “to the edge of civil war”, according to the UN’s special adviser. The main fight is between forces loyal to the beleaguered President, Abdrabbuh Mansour Hadi, and those allied to Zaidi Shia rebels known as Houthis, who forced Mr Hadi to flee the capital Sanaa in February. BBC

Yemen,  Iran, Saudi Arabia and Humanitarian Aid

“An Iranian cargo ship loaded with aid bound for Yemen has arrived in Djibouti and is anchored offshore, according to a US official.” “The diversion of the ship to the small African country where the UN is coordinating the response to Yemen’s conflict would defuse a potential crisis with Saudi Arabia, which had warned the ship not to proceed directly to Yemen.” Al Jazeera English

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