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Sunday, June 5, 2016
HCR29: Legislators Vote to Abolish ERS, End Free Speech for Star-Advertiser
By Andrew Walden @ 9:56 PM :: 8148 Views :: Congressional Delegation, First Amendment

by Andrew Walden

Sometimes legislative irresponsibility can be a good thing. 

Since 2013, Hawaii legislators have been pushing substantive bills proposing a constitutional amendment to abolish ‘corporate personhood.’  Bills died in committee in 2013, 2014 and 2015.  This year legislators finally got one passed, but luckily for newspaper editors and State employees counting the days to retirement, it is just a resolution.

HCR29, adopted April 25 by the State House and Senate, “Urg(es) Hawaii’s congressional delegation to propose and pass a proposed amendment to the United States Constitution clarifying that corporations are not people with constitutional rights, and that unlimited campaign spending is not free speech.”

Throughout the entire legislative process, House and Senate, only Rep Bob McDermott voted ‘No.’  HCR29 passed the Senate unanimously while Senator Sam Slom was hospitalized.

Obsession over “Corporate Personhood” is the Birtherism of the Left so it is no surprise that the other 74 Hawaii legislators have lots of company in Dunning-Krueger World.  On a national level Senator Bernie Sanders has repeatedly sponsored the mis-named “Democracy to the People’ constitutional amendment, forcing the ACLU and others to patiently explain just how dangerous the idea is.  Sanders received 70% of the vote in the March 26 Hawaii Democratic Presidential Preference Poll.

“Corporate Personhood” reflects the fact that corporations are recognized under the law and have legal standing in a court of law.  If corporations had no legal standing (ie no constitutional rights) activists couldn’t sue corporations for pollution discharges or consumer fraud.  The stock and bond markets (and by extension the State Employees Retirement System -- ERS) would simply cease to exist.  Labor unions, churches and charities organized as non-profit ‘501’ corporations would also be instantly vaporized.  Under Sanders' proposed amendment, these organizations would all lose free speech because “the ability to make contributions and expenditures to influence the outcome of public elections (would) belong only to natural persons.”

Hordes of know-nothings think “Corporate Personhood” emerged from the US Supreme Court’s 2010 Citizens United decision.  In reality it is at the root of the US and English legal tradition.  For instance US Supreme Court Chief Justice John Marshall, in the well-known 1809 case, Bank of US vs Deveaux, explains:

…As our ideas of a corporation, its privileges and its disabilities, are derived entirely from the English books, we resort to them for aid, in ascertaining its character. It is defined as a mere creature of the law, invisible, intangible and incorporeal. Yet, when we examine the subject further, we find that corporations have been included within terms of description appropriated to real persons….

…for the general purposes and objects of a law, this invisible, incorporeal creature of the law may be considered as having corporeal qualities….

The national ACLU, July 24, 2012 testified before Congress on the subject of Citizens United with a simple message, “Do Not Amend the Constitution”: 

…(Proposed Constitutional) amendments targeting corporate personhood would have serious civil liberties implications in that they could inadvertently strip away, for example, Fourth and 14th Amendment rights that derivatively protect the “natural person” constitutional rights of shareholders and other stakeholders. Great care should be taken when legislating in this area. Any constitutional amendment restricting corporate speech would pose a danger that simply cannot be overstated for other rights and civil liberties….

While corrupt Hawaii Legislators pander to the progressive base, and raise money from special interest groups, they assiduously ignore the ACLUs suggestions for campaign finance reform which include:

Tighten Coordination Rules to Prevent Sham Independent Expenditures

Support Effective Public Financing

Speed Tax-Exempt Status Determinations

Mandate Lowest Cost Political Advertising

Attorney Ilya Somin writing on Volokh in 2010 goes further, explaining:

The first problem is that, like the “real people” argument, it applies to media corporations as well. On this view, the government would be free to censor the New York Times, Fox News, the Nation, National Review, and so on. Nearly every newspaper and political journal in the country is a corporation. If the Supreme Court accepted this view, it would have to overturn decisions like New York Times v. Sullivan and the Pentagon Papers case….

A second issue is that this logic applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If people using state-created entities don’t have free speech rights, they don’t have any other constitutional rights either. After all, the supposed power to define the rights of state-created entities isn’t limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property for private use without paying compensation because the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned by churches, most of which are after all nonprofit corporations). If the Free Speech Clause of the First Amendment doesn’t apply to corporate property, neither does the Free Exercise Clause. And so on…..

Wendy Kaminer of The Atlantic describes the blank looks she gets:

If progressives had their way, the ACLU's latest challenge to the NSA's domestic surveillance would easily be dismissed. ACLU v Clapper, filed in the wake of the Snowden revelations, is based on the ACLU's First and Fourth Amendment rights, which, according to progressives, ACLU should not possess. It is, after all, a corporation, and constitutional amendments aggressively promoted by progressives would limit constitutional rights to "natural persons."

"The words people, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities," the popular People's Rights Amendment declares.

I have repeatedly stressed the dangers of an amendment limiting constitutional rights to "natural persons," noting that it would deprive every non-profit, citizens advocacy group as well as small and large businesses of both First and Fourth Amendment rights, exposing them to warrantless searches and outright censorship of political speech. ACLU v Clapper makes clear that these threats to civil liberty are not theoretical….

Progressives are simply apoplectic about Citizens United, whether or not they understand it. Like the name "Karl Rove," the words "Citizens United" evoke a Pavlovian response. Many of its fiercest critics don't even know the facts of the case, which involved a challenge to campaign finance laws that criminalized broadcast of a critical movie about former presidential candidate Hillary Clinton during a blackout period before an election. "Do you think Michael Moore should be barred from establishing a non-profit corporation to air a movie critical of Rand Paul if he runs for president?" I'll ask the Citizens United critics. Often they look at me blankly, having no idea why the question is relevant.

Ilya Shapiro of CATO tries to be patient in this 2010 piece:

The blogosphere has been abuzz on the heels of the Supreme Court’s landmark Citizens United opinion.  Hysteric criticisms of the speculative changes to our political landscape aside – including the President’s misstatements in the State of the Union – one of the most common and oft-repeated criticisms is that the Constitution does not protect corporations. Several “reform” groups have even drafted and circulated constitutional amendments to address this concern.

This line of attack demonstrates a fundamental misunderstanding of both the nature of corporations and the freedoms protected by the Constitution, which is exemplified by the facile charge that “corporations aren’t human beings.”

Well of course they aren’t — but that’s constitutionally irrelevant:  Corporations aren’t “real people” in the sense that the Constitution’s protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn’t mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the “no rights for corporations” crowd be okay with the police storming their employers’ offices and carting off their (employer-owned) computers for no particular reason? — or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there?

Garrett Epps of the liberal-oriented American Prospect urges readers, “Don't Blame ‘Corporate Personhood.’"  Trying to talk reason to his magazine’s readership, Epps in 2012 pointed out:

“…the attack on “corporate personhood” reflects both a misconception of Citizens United and the problem with current First Amendment law. The problem is not that corporations are “persons” under the law. Corporations have always been “persons”—that is and always has been, in fact, the definition of a corporation, a “fictive person” able to own property and enter into legal agreements. Also, the problem is not the idea that corporate “persons” have free-speech rights. Of course they do. The idea that corporations have some of the free-speech rights that people have is essential to important Court decisions like New York Times Co. v. Sullivan(1964) and New York Times Co. v. United States (1971), which removed the threat of government censorship from American media. Nor is the problem the idea that “money is speech”; the First Amendment would be toothless if government could prohibit anyone from paying to publish thoughts or being paid to publish them.”  


Hawaii ‘Corporate Personhood’ Legislation:

HB119 of 2013: Text, Status

2013 Opposition: Testimony

  *   *   *   *   *

HB1499 of 2014: Text, Status

2014 Opposition: Testimony

  *   *   *   *   *

HB783 of 2015: Text, Status

SB217 of 2015: Text, Status

  *   *   *   *   *

HCR29 of 2016: Text, Status


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