Law and Cultural Morality: Indictment is Not the Only Question in Ferguson

It seems that the nation is on the edge of its collective seat, awaiting the outcome of the grand jury proceedings in the shooting death of Michael Brown by Ferguson, Missouri police officer Darren Wilson. The odds seem to be running high that Wilson will not be indicted. I understand why the indictment has become such a focal point, but I'm concerned about the conflation of the indictment with a determination of right-and-wrong. 

Our culture often mashes up these two concepts -- law and morals -- with very odd and often very contentious results. For example, many people in this country do not have appropriate immigration documentation, and many people in this country do not have appropriate motor vehicle registration documentation. Segments of our citizens declare those in the first category to be morally wrong bad or even evil people and brand them with the label 'illegals.' Yet few would deem any American with an expired inspection sticker as an evil person, even though they, too, are breaking the law. 

There are many crimes we are willing to forgive, like the kids selling lemonade in the driveway who don't have their food vending permits and aren't paying business taxes. And there are many wrongdoings that are not considered crimes, like all the crap corporations put in our food, or  cosmetic companies putting lead in our lipstick, or the damage fracking does to drinking water supplies, or Walmart making its minimum wage employees buy uniforms for work. It seems the bigger and more institutionalized the evil, the less likely it is to be considered illegal.

If the grand jury were to indict Darren Wilson, it would comprise an official statement that our criminal justice system found there was a base level of illegality AND wrongness in Wilson's actions. Yet, an indictment is only a charge -- the matter would still have to go to court, and another jury would still determine his criminal culpability.

But, if the grand jury does not indict him -- the more likely scenario -- this is merely a statement that the evidence of the shooting itself did not meet the parameters to be charged as a crime. It is NOT a statement that it was the right thing to do.

The moral questions surrounding this tragic death embrace a far larger context than the instant of pulling the trigger. The moral questions -- the questions we should all be asking of our communities, our police, our public officials, our selves -- involve the whole interaction between Wilson and Brown, both on the immediate concrete level and on the larger symbolic level. 

In the realm of the immediate and specific, I have many questions. The primary one is, How did we get from two young men walking down the middle of the street to a heated confrontation at the cruiser? The officer may not have done anything illegal -- but I suspect this must have involved issues of attitude and communication on the part of both the young men and the officer. Now, young men (of any race or ethnicity), and for that matter, young women, can certainly engage in teenagerish disrespectful behaviour to anyone in authority from parents to teachers to police officers. This is not, however a shooting offense, and the adult in the situation has the responsibility to roll with the attitude and let it go or turn it into a positive moment. Of course I don't even know whether these young men did demonstrate attitude or not -- nor do I really care, because the officer surely should have the communication skills to cope with two young men walking down the street without turning it into a national incident. In that regard, obviously, he failed utterly.  Why was that, and how can we change it for the future? 

The second question I have in this same realm of the concrete is, How did we then get from arguing at the cruiser -- assuming that's what happened -- to being shot in the street? The confrontation has been broken at that point. There's no further threat. There's an unarmed individual walking or running away. Surely, again, the officer had the skills and resources to address this in a non-fatal manner; to control his anger over whatever was said or done. Surely the officer should have had the skills to realize that he was making decisions in anger, and to call for backup in containing an unarmed teenager.  But apparently he didn't. Again, why was that, and how can we change it for the future -- not only in Ferguson, but everywhere? 

Then their is the realm of the symbolic. This incident was both an actual tragic event where Darren Wilson shot and killed Michael Brown, and a transcendent incident in which a white police officer shot and killed an unarmed young black man, and in so doing became perceived as emblematic of race relations in America. Why are so many young black men incarcerated, arrested, or shot? Or, going beyond the criminal justice system, Why did far more black farmers and homeowners lose their land during this recession? Why do some many more black women die in childbirth, and why do black women die 5 times more frequently from breast cancer than white women? Here is where the deepest evil of the situation lurks -- in the painful and blatantly obvious multi-tiered reality that is our nation, in which the risks, perceptions, and rewards of living in America are drastically different for one set of people than they are for another set of people. This is injustice and inequality in a pure and painful form -- all the more so for the fact that it is ignored until a bullet crosses from one of those tiers to another and leaves a wake of (very understandable) rage and frustration.

None of these questions -- neither the concrete questions of policy and community policing practices and personal communication and anger management skills, nor the larger questions of whether we are ever going to make good on that bad check Dr. King referred to in the speech at the civil rights march on Washington -- will be answered by the indictment or the anticipated lack of one. 

But these are the very questions we need to address head-on. We should not let the focus on one particular thread in that discussion -- the grand jury indictment -- dissuade us from the overarching questions that will shape the future of equality and justice in America. 

Hope and Exploration: Musings on the Movie "Interstellar"

LEM, Cradle of Aviation Museum Photo: Cindy Hill

As a kid, my dad -- an engineer at Grumman Aerospace - would wake me up to watch the moon launches. I remember putting together those plastic models of the LEM like the one that featured prominently in the movie Interstellar. Not too long ago, I visited one of the two remaining intact LEMs with my dad at the Cradle of Aviation Museum on Long Island. So seeing that model break in the movie hit a chord with me.

But it didn't hit me quite as hard as the scene where a teacher explains that the elementary school textbooks have been revised to explain that we never really did go to the moon, and the space program was really a propaganda effort designed to make Russia waste its money. You see, with the planet dying, the government had decided that people should not hold out hope that there was something in the universe beyond our own world.

For years I've been chanting the mantra "Fund NASA". Friends mostly think I'm nuts, and say we don't need to waste money finding water on Mars when there are people starving here on earth.  But isn't that the point -- if we can put a man on the moon, as the saying goes, then we can do just about anything. If we can get a ship to mars, surely we can balance national budgets, develop cleaner energy, end child abuse and animal exploitation. Isn't funding NASA all about funding hope, engineering a positive can-do attitude, demonstrating leadership and goal-setting and the power of accomplishment?

So that's my perspective from the light side of my mental moon. The dark side of my brain, however, has, appropriately, darker thoughts.  Humans aspire to exploration, sure. Yet when has human exploration ever proceeded without genocide, war, and ecological destruction? Those great Brits and Scots who mapped Africa did so to lay in railroads, mine the gems and minerals and later drill for oil, pausing along the way to engage in the slave trade, create colonies, and muddle through the ongoing wars of post-colonialism. The Spaniards and later the British landing in the Americas killed off the better part of a hemisphere's worth of humans, first through disease, then enslavement, war, and forced exclusion from their homelands. Our ocean explorations led to offshore garbage bights and oil drilling.

We explore to conquer; we conquer to control; by controlling we kill. As Oscar Wilde framed it, Each man kills the thing he loves. Until we can control the strength of our conquering grip, might we be better off NOT going to the moon, or Mars, or anywhere else we are bound to exploit and destroy? The LEM, after all, is the ultimate symbol of hope, NOT because it carried explorers far away -- but rather because on the ill-fated Apollo 13 mission,  it served as a lifeboat, and brought those courageous explorers safely back home. And that was an extraordinary example of human accomplishment.

Governments create hope and set the tone for optimism and progress in society through funding forward-looking programs. When the theme of governmental action runs heavily towards the negative -- the war on drugs, the war on terror, an assault on immigration, an assault on leaks of governmental information--rather than the positive, there is no inspiration for innovation other than building better prison walls. But before I built that wall, I'd want to know what I was walling in, and walling out, and why. And then I'd want to climb over that wall, and go out to explore.

I've come to realize that funding the space program is not the only way to engineer hope and instill optimism in the hearts and minds of young people across the country and around the world. But we do need to fund those things we want to see growing around us, and not just fund the fight against those things we want to stop. That means our legislatures and Congress putting their money into schools and colleges, health and mental heath care, alternative energy development, agriculture, pollution control, climate resiliency.

If you fund the war on drugs you'll get a drug war. If you fund the war on terror, you'll get a terrorism war. Fund a positive future and you'll get a positive future.  And that -- like the space program -- is worth exploring.

When Law and Ethics Meet Mental and Physical Health Events

The 1989 U.S.Supreme Court decision that guides prosecutors, grand juries, and juries in determining whether to charge or convict a police officer of excessive use of force is particularly interesting because it involved a man who was suffering from an episode of low blood sugar related to diabetes.  It is not uncommon for individuals suffering from diabetes, epilepsy, or other physical health conditions to run into confrontations with law enforcement officials, often ending up at the receiving end of considerable force or restraint -- sometimes even death.  Often individuals experiencing such events can not hear, or can not respond to, officer instructions to stop or kneel or drop what is in their hands.  Sometimes they may be flailing or cursing as part of the pattern that precedes a seizure or blackout.

Some years ago a very pregnant friend of mine, wearing her husband's large overcoat, passed out in Penn Station and woke up with a cop putting the boot to her on the presumption that she was a drunken wino or wasted heroin addict. Never mind that one might reasonably question whether cops should be putting the boot to passed-out winos or heroin addicts instead of calling an ambulance, but in this case it was merely the grace of whatever Deity was watching out for this unborn child that neither it nor the mom wound up with permanent injuries.

The standard set by the U.S. Supreme Court requires prosecutors, grand juries and juries to consider what a reasonable police officer, in light of their knowledge, training and concern for other members of the community, would do if faced with exactly the same circumstances. If the person is acting strangely, appearing agitated, does not respond to commands, then by law a level of force, up to and including deadly force, can be used to subdue that individual.

With a steeply increasing percentage of our population taking pharmaceuticals for mental health issues -- anxiety, depression, ADD -- these conflicts and their often deadly results seem to be getting all the more common. At the same time, public acceptance of the legally-sanctioned response is diminishing. Large segments of the public are expressing dismay when police promptly shoot a young man who seems to be in a daze and is chanting, 'shoot me, shoot me now, shoot me'.  The public is baffled, hurt and angry when police promptly shoot and  kill a man who is experiencing a medication error episode and is swinging around a shovel in his own front yard. Every one of us with a friend or relative who sometimes has moments where they can't respond swiftly to a police command to get down, or a friend or relative who might sometimes slip into a seizure with unpredictable behavior, now has to ask ourselves if that person is at mortal risk going out in public places. Any parent or spouse or friend whose loved one goes into one of these episodes now has to wonder what to do: Calling for help will wind up with police dispatched, and the request for help might well end with a body bag instead of assistance.

The problem is a disconnect between the law of what the police CAN do -- what they are legally authorized to do -- and the ethics of what they SHOULD do.  Just because you are allowed to do something legally doesn't mean you necessarily should assume it's the right thing to do. And yet, how do we go about training police officers to follow established protocols for community safety on the one hand, yet exercise the ethics of discretion on the other?

Or, are we asking too much of law enforcement to expect them to be able to discern a medical situation from a criminal justice situation? In years long ago, when the mental health field was dominated by residential institutions, there was another response option -- the men in the white coats with straight jackets. When we as a society collectively determined that large mental institutions and those guys with the straight jackets were inhumane, we did not create any alternative to take their place.  You can call an ambulance -- but if the person is bouncing around or swinging or throwing things, the ambulance personnel will ask for police back-up. There's no other choice. There's no middle ground. There's no protocol for identifying and differentiating a person who is acting in a disturbing manner from a medical event from a person who is acting in a disturbing manner from an addictive substance habit or through sheer criminality.

Nor is there any ethical guideline in our culture for determining where along the spectrum of medically and chemically induced behavior our official response should differ. Should the person throwing things around a store and cursing in the midst of a pre-seizure event due to epilepsy be treated by medics, but the person throwing things around a store and cursing due to PCP in their pot or a bad meth experience get shot by police? Is the person chanting 'shoot me' horribly depressed and suicidal such that they should receive emergency mental health counseling, or are they a split second away from swinging a knife at someone nearby and thus present a severely dangerous threat to the community and must be shot? Who is going to decide which is which, and how?

The legal standard itself is highly subjective. There is no checklist, there is no explicit court ruling that lists precise actions or timelines required; instead, individuals have to compare the standard to the facts and determine if the officer's actions were legally warranted by the circumstances.  Obviously there are some cases where the answer is clear: the armed robbery in progress, the person holding a hostage at gunpoint, and similar situations warrant the force necessary to stop them in order to save other lives. A whole mess of other cases are not remotely as clear.

But beyond that legal standard, our society has not had the serious, focused, intense discussion necessary to establish ethical guidance for our official governmental response to incidents where individuals are displaying erratic behavior as a result of physical or mental health incidents or chemical imbalances. Should states and communities adopt laws and policies directing law enforcement to only use lethal force as an absolute last resort? Should police have more extensive medical training, and be given other non-lethal protocols for dealing with these cases? Should police be integrated with medical personnel who are charged with making swift assessments of the causation of these incidents? Should there be some other entity responsible for responding to incidents involving erratic behavior possibly related to physical or mental health? And are we all willing to pay for and support the development of these alternatives?

The conflict between law and ethics is that what the law says CAN be done is not necessarily what SHOULD be done.  The public is speaking loud and clear that we don't think the level of law enforcement force applied to individuals experiencing mental and physical health events is appropriate -- yet, we are not having the conversation about how we all SHOULD respond to such incidents, which leaves police as the default responders, and the legal standard as the default protocol. We don't like the rock, and we don't like the hard place, and we have not yet figured out what other options there might be.

Our society needs to engage in open, meaningful public discussion at every level from neighborhoods to Congress, with law enforcement, mental and physical health care providers, members of the disabilities community, and just plain caring citizens at the table. This is probably best started by urging your town and city governing bodies, which have oversight over community police entities, to begin the conversation with an eye towards transparency and vetting of local and state police protocols on use of force.  Law enforcement agencies are employees of us, the people.  We should be clear in our directives to our law enforcement agencies that we value the lives of the persons in our communities with physical and mental health issues, and want to ensure that they live with dignity and respect even when in the midst of frightening or disruptive health and medication events.

Toy Guns and Tragedy

**** UPDATE

I originally wrote this column in 2011. Since then we’ve seen quite a number of young men carrying pellet guns shot dead by police.  For example, in 2013, Andy Lopez, a 13 year old in California, was shot dead on the street while returning a pellet gun to a friend in the morning before school started. And in the summer of 2014, John Lopez, a 22 black man, was shot and killed in an Ohio Walmart while walking around the store shopping holding a pellet gun he had picked up off the store’s shelf, probably intending to purchase it.

While I continue to dislike toy and pellet and paintball guns precisely because they create unnecessary confusion, these tragic homicides were more about bad police protocols than about the products made by Crossman and AirSoft. It seems police nationwide are employing practices in which they issue one order—to put down a weapon, to drop to the ground—and then fire immediately when the order is not fulfilled. This protocol has led to the deaths of scores of individuals suffering from mental health or physical health or medication episodes which render it impossible for them to comply instantly; to the deaths of these two young men and many others like them who might be wearing ear buds or talking on the cell phone and not hear the order. It’s implication to anyone suffering a hearing defect or physical impairments making fast movement difficult is quite clear.  (Some witnesses in John Lopez’s case also suggest that the shots came before the directive to drop the weapon, and that the police never even identified themselves.)

The media-driven pervasive atmosphere of fear that wracks our country has obviously percolated deep into the hearts of our nation’s law enforcement officers. All those action movies in which the goal of the hero is to take out bad guys then walk off into the sunset without consequences are seeping into law enforcement consciousness – and civilians seem to be demanding it. But once a young man is dead on the ground – a father, a son, a friend, a neighbor, and employee – reality seeps back in: There are consequences, tragic and horrible consequences, both immediate and long-term.  Each death deepens divides, creates defensiveness, adds to the us-and-them mentality, which leads to more fear, which leads to more confrontations and more tragic results.  This is particularly true in the many deaths of young black men, where it is clear that deep-seated presumptions play into the chain of decisions, from whether someone calls the police in the first place to how those police view the unfolding events. 

I still don’t like toy guns – but civilians should not have to adjust their lives and habits in order to accommodate police protocols. Police work for us, and are answerable to us.  It behooves each of us in our communities to make it clear that we expect a community policing approach that respects all of our lives, that starts with the intention of protecting and respecting each and every one of us – which means not leaping to conclusions about an individual’s intentions.  Granted, these calls on the ground can be difficult, but transparency, clear protocols and training, community input and prompt professional communications with the public will go a long way towards establishing trust and renewing our faith that justice, rather than blind fear and prejudice, is being served.

******

ORIGINAL COLUMN:

Growing up in the 1960’s on Long Island, I had a gorgeous chrome pearl-handled cap pistol that was the perfect accessory for those occasions when I wore my red and white cowgirl hat and rode that squeaky-spring hobby horse through many living-room adventures. Later, it was tucked in my waistband as I raced my bike through the woods on a top-of-the-lungs charge, or crept through the underbrush imitating the war scenes we watched on the nightly news. Those rolls of red-paper-wrapped caps didn’t make much noise, admittedly, but they sure smelled good.

I was reminded of that cap pistol about a year ago when I stepped around the end of a set of shelves in the local bookstore while perusing new cookbook titles, and found myself staring down the barrel of a chrome revolver. My heart leapt to my mouth, my left hand flying outward to block the barrel and my right closing into a fist and curling downwards towards the much shorter person who was brandishing the weapon. I realized it was but a cap pistol, just like mine, about the same instant that the little pardner yelled BANG BANG BANG.

I expressed my displeasure at having a gun barrel shoved in my face to the parent of the young cowboy. The parent was irate--- at me, for daring to be offended that her precious baby was just playing with a toy, and it’s not her fault or the kid’s fault that I’m a ‘gun freak’ who assumes people would carry around real guns and point them at people, what kind of a world do I live in, and so on and so forth.

Be that as it may, I do not appreciate having a chrome gun barrel shoved in my face. It looks far too real, which creates far too many hazards. Like, if the little cowboy finds himself in a house with real guns about, he’s not likely to know the difference, having been raised with realistic looking toys but no genuine articles. And on another street, another person might not have stopped their punch which would have, in the least, broken his nose –or another person, civilian or law enforcement, might well have shot the boy first and taken a closer look at the gun later.

All reason why in my house, with its abundance of real guns, I never allowed any toy guns that looked anything like an actual firearm. Our water soakers were bright orange. Well, actually, I did cave on the pine-board rubber band guns – but I’m pretty sure most civilians and law enforcement officials can tell they aren’t real rifles with just a quick glance.  My girls shot real guns from a young age, with all appropriate range protocols in place. I did get a pistol safe—but immediately taught the kids the combination on it so they could get the handguns in case of home intrusion (or a rabid coyote coming after the chickens).

But something was nagging me about how incredibly realistic that chrome barrel appeared.  It wasn’t until a couple hours later that I realized it: The chrome-plated cap pistol that the young bookstore cowboy was brandishing at me was illegal. I wonder what his liberal, oddly anti-gun-but-pro-cap-gun mom would think of that.

Since 1988, federal law has required that all toy guns be clearly and obviously identified. Department of Commerce regulations, 15 C.F.R. Sections 1150.1 through 1150.5, require that all “toy, look-alike, and imitation firearms having the appearance, shape and/or configuration of a firearm and produced or manufactured and entered into commerce on or after May 5, 1989” be either completely translucent, or completely painted or finished in a day-glo type color not associated with a real firearm, or at the least have a blaze orange or brighter plug in the barrel, or the last 6 mm of the barrel painted blaze orange or brighter. 

Federal regulation of toy gun marking does not include paintball guns, BB guns, or compressed-air guns that shoot metal pellets. Although these are not “firearms” within the federal gun control law definitions, neither are they toys—they shoot real projectiles that, as every mother has warned, can take your eye out, or worse.  I realize this is confusing – air soft type guns that shoot plastic pellets DO need the orange tip, but other Crossman style BB and pellet guns that shoot metal projectiles DO NOT need the orange tip.

But before I rant along the theme of there’s-never-a-cop-when-you-need-one-to-arrest-parents-who-distributed-illegal-toy-guns-to-their-kids, I have to confess: my 1960’s cap pistol was apparently illegal as well. New York City has banned any toy gun that was black, blue, silver, or aluminum, since 1955. 

Subsequent amendments have expanded and clarified the New York City law.  Fines for sale of illegal toy  guns are escalating, and the City is collecting millions of dollars in fines from merchants selling illegal toy guns.

Other states have also adopted toy gun laws. California prohibits the sale of any imitation firearm which is not blaze orange or day-glo green, for example.

But realistic looking toy guns continue to make the news on a regular basis. In February 2010, BATF seized a shipment of 30 Airsoft replica rifles which were being imported through the Port of Tacoma for a Washington state retailer. Airsoft manufacturs BB guns, which are purportedly exempt from the toy gun marking laws under the federal regulations. However, it appears that the high-end Airsoft rifles, retailing (according to the Airsoft website) for $300 and up, are battery-operated; the compression which expels the projectile is created by a battery-driven piston. These models do not appear to meet the Department of Commerce exemption definition. Thus, they must be marked as toy guns—as they are pictured on the Airsoft website, with orange barrel-end markings. The seized Airsoft rifles were not appropriately marked. The latest news reports indicate that BATF intends to destroy the shipment; firearms advocacy groups are voicing their opposition to ‘toy gun control’.

Meanwhile , in early March 2010, a 3 year old girl in Tennessee shot herself fatally in the stomach with her stepfather’s pistol.  The mother and stepfather voiced their belief that the toddler mistook the firearm for the family’s Wii remote. The precise model of pistol is not identified in news reports; however, a photo on a local television news station’s website shows a small, matte black semi-automatic pistol next to the Wii accessory – and the similarity between the two is striking.  As of this writing it appears that no charges will be pressed against the parents in relation to the incident.

Internet buzz has made great hay over the fact that the Wii accessory in question is an illegal toy gun, without it’s requisite blaze orange markings. However, it’s doubtful that the result in this incident would have been different if the Wii accessory had been properly marked. This is not an incident of a civilian or law enforcement officer shooting a child because he or she thought the child was holding a real gun. This was an instance of a child picking up a real gun and likely trying to use it in the manner in which she’d seen her parents using the toy gun in the home. Blaze orange paint and more federal or local toy gun laws would not have changed this situation; nor is it likely that trigger-lock and gun storage laws would have made any difference, as according to local news reports, the firearm was out and loaded to respond to an apparent intruder on the property.  That it was left unattended for but a moment is a tragedy that will no doubt haunt these parents for the rest of their lives; but every parent will have to decide for him or herself whether having realistic-looking toy guns in the house, with or without a blaze marking, is worth the confusion it may cause. 

Firearms ownership is an extraordinarily valuable right. For myself, I’d rather impress upon kids the honor of that right, and not undermine its importance with a toy.

Polarization, Hyperbole and Post-Eristic Political Communication

Remember when they handed out buttons?

A lifetime ago, in a state far far away, I was a Democratic Party committeeperson, and as a member of DeSoc (the Democratic Socialist committee – remember the rose in the black fist?) and the Young Democrats, I was privileged to attend a number of campaign management and speech writing workshops.

The themes of those lessons all bore a positive message:  Don’t mention your opponent, as every time you do, you give him or her greater name recognition and thus boost their election potential.  Don’t dwell on what your opponent or the opposition party is doing wrong; always be positive, provide a message of hope and your vision for the better future. Present plans for resolution of conflicts, answers to problems, and options for emerging issues. This was how we were told to win: By persuading the other side to believe in you and the infallible logic of your ability to successfully lead or, at least, to make them feel good about themselves and the direction of their community or nation.

This is about 180 degrees from the current state of political communication theory today.

Polar Opposites

I’ve spent the last two decades trying to figure out why political candidate campaigns did an about face to become almost exclusively an exercise in opponent-bashing. Why would you say your opponent’s name once or twice per sentence in a very expensive television ad, in your website materials, in your press releases, in community or televised debates? Why would you waste every opportunity to talk about an issue by doing nothing but slamming your opponent candidate or party’s approach, without offering any hope or vision for the future? Obviously the dominant logic had changed dramatically, but I could not figure out why.

Over time, the opponent-bashing approach flooded into broader fields. With the advent of social media, the public jumped on the band wagon and whole-heartedly embraced the tactic of lobbing highly divisive negative memes and quotes into the blogosphere.

Liberals particularly have adopted this theory. In addition to candidate election campaigns, they have applied it to such wide-ranging subject matter as immunizations, firearms), and evolution.  They place the blame for everything from traffic snarls to global warming squarely on the Republicans.

Republicans are, of course, not averse to using similar tactics, though in past years they’ve combined this with sophisticated media techniques designed to maximize mass social persuasion, particularly in the use of theme language running through all campaigns from the local to the national level.  Their ability to tightly control these language themes has loosened somewhat with the advent of the Tea Party structure, as the national Republican Party hierarchy is not the well-oiled, close-tolerance machine it used to be. In my Democratic Party days, the problem with the left is that it was always fighting amongst itself while the right presented a single Borg-like structure. Today those positions have probably inverted.

Why Don’t You Get It, You Idiot?

Like Winnie the Pooh with hand on chin, I pondered and pondered the prevalence of these increasingly negative messages bombarding us daily with directives to get angry at the Other.  I spent long hours wondering whether they are contributing to the epidemic of depression, anxiety and suicide that surrounds us. I wondered whether they contributed to Congressional stalemates and the inability to move our country forward in many different realms.  All we hear, even from our most liberal, progressive Vermont Congressional delegates, is how it (whatever the topic of the day may be – global warming, health care costs, international violence) is the Republican’s fault and how they are a bunch of obstructionist uneducated embodiments of evil.  We do not hear the plan, the solution, the way forward, the message of hope.

When I spout my own message in that vein – which is, “Fund NASA” – I am greeted with jeers: Yeah, right, like that will happen and who needs it anyway. I’d say the biggest economic mistake our country has made in recent decades is pulling out of the Supercollider project in Texas. The point of these things is not necessarily that the Higgs Bosun could have been found in America instead of Switzerland, or that we need better freeze-dried ice cream. The point is that projects like landing a man on the moon pull the nation together with a unified positive goal, give us hope and a sense of excitement for the future, and bring that empowering sense that American ingenuity can accomplish anything. Funding pothole repair or yet another war may create a couple jobs, but nothing would shape the next generation of Americans like being woken up at 2 a.m. by their parents to watch a moon—or a Mars –shot launch.

It irked me that I couldn’t parse out the logic.

Then, I got it.

No wonder I had missed it – it’s a math thing.

Circle the Subarus

Here in Vermont, when faced with an assault on our local independent culture, my friends and I jestingly exhort, ‘Circle the Subarus!’. The reference is to circling the Conestoga wagons when a wagon train westward was under attack by – well, anything. (I’m old enough to remember when we used to say Circle the Volvos, but the Volvos have pretty well disappeared from around these parts.)

The rationale behind the old-school method of Positive Politickin’ that I was taught years ago was that you could already count on your Own Team to vote for you; that if you presented a compelling positive image, you could likely induce a good portion of the Uncommitted Middle to voting for you; and if you were really, really compelling, you might just convert a few members of the Other Team to vote for you. Thus, if there were 1000 registered voters in your district – 250 Republicans, 250 Democrats, and 500 Independents – as a Democratic candidate the logic would be that you already had 250 Democratic votes, and you needed to get 251 Independents to be your new best friends in order to win the election. You won them by being nice. (Decades ago my mother voted for, and has voted in every election since for, a Congressman who, in his first campaign, helped her move her loaded grocery cart over a curb and load the groceries into the trunk while he urged her to vote for him. She votes for him Because He Was Nice. That’s old-school Positive Politickin’.)

The polarizing, enemy-bashing approach to political campaigns and public issues is not remotely intended to make a single convert from the other side – or even to convert much of the uncommitted middle. The New Negative campaign theory is intended solely to solidify your Own Team, and to get it so riled up that every single member of it comes out to vote.

This New Negative logic arises out of a fatal mathematical flaw in the old Positive Politickin’ model: Most people don’t come out to vote. The old-school assumption that if you have 250 registered Democrats out of 1000 registered voters, you don’t have to worry about getting 250 votes, is a false one. 

In mid-term Congressional election years, about 40% of eligible voters vote in the federal elections. In Presidential election years, about 60% of eligible voters vote for the President. In either of those types of elections, far fewer people vote in the state elections, even though they took the trouble to go stand in line and walk into a voting booth. In off-year and primary elections, and in many state elections, voter turnout is often more like 25% of eligible voters.

That means out of those 1000 registered voters, you might only get 250 to show up to the polls at a state or local election, and only 400 to show up to the polls in a mid-term Congressional race. In the first instance, if you get your 250 Democrats to show up – you’ve won by a landslide. In the second, if you get your 250 Democrats to show up – you’ve won by a very comfortable margin.

In other words, the heart of politicking today is not to charm the middle and persuade a few swaying souls on the other side – it’s to light a compelling fire under your Own Team, getting them into such a cohesive, angry, roiling mass that they can’t help but show up at the polls, early and often, possibly dragging along some friends, family or co-workers in the process.

Preaching to the Converted

No one was every persuaded of the wisdom of a different position by being called an evil, uneducated idiot. But the goal of these vitriolic, polarizing, hyperbolic approaches is not to persuade the opposition – it’s to crystallize the proponents. It’s preaching to the converted.  It’s about making sure that the committed Democrat or Republican never even considers voting for an independent or progressive or other candidate because it would obviously be an act of treason; it’s about sulfur and brimstone and God being on the side of the winner.

Eristic argument is argument designed to win at all costs—argument that flays and eviscerates the opposition and leaves them a disemboweled smoldering mass on the sidewalk. Every now and then, in extreme circumstances involving justice or putting a stop to a horrific loss of life, that technique to conflict resolution may be warranted. In most situations – deciding where to go to dinner with your spouse, or trying to encourage a neighbor or patient to immunize their child – eristic effectiveness brings pyrrhic victory.

Whipping your own team into a frenzy is a post-eristic communication strategy—and ultimately, in the long run, as fruitless and self-destructive as beating up your spouse in public. It might get your vote out in the short run, but it also adds to the Other Team’s sense of cohesion by showing how nasty and horrible you and your team are. It reduces issue and candidate campaigns from meaningful dialogue and sharing of positions, to a mere war of numbers. It removes authority and control from the voters, who no longer are presented with two different visions of the future from which to choose between.

In this case, not only do you beat the other side to a pulp, but you polarize the sides of any political issue so extremely that any ability to work together, find common solutions, or build a better future is erased, because no one side can afford to loosen their grip on their core hyperbole-based voting block. It is, as William Ury calls it in the Harvard Negotiation Project’s ‘bible’ of conflict resolution, position-based bargaining – and no one can ever back down from a publicly stated position without losing significant face, and when you are preaching to the converted, face  (and faith) is your stock in trade.

A Way Out

The general public, including those affiliated with any of these political teams, holds the keys to the way out of this spiral-into-ineffectiveness which blackens our political landscape.  It involves two simple steps that are entirely within your power.

First, you can stop participating in it. Stop posting, reposting and repeating stories, social media memes, and slogans that are not aimed at promoting genuine understanding, betterment, and resolution to political issues. Is it phrased in such a way that you’d say it to try to convince your grandmother or best friend to agree with you on the subject? If not, don’t repeat it. Are the facts true? Don’t pass along inflammatory statements without vetting them, and knowing exactly what your purpose is in doing so. The dialogue will become meaningful and civil if you insist on engaging in civil, meaningful dialogue. Don’t buy into tactics of fear, anger, and accusation—especially accusation. Does what you are about to post encourage a solution to a problem – or just generically condemn people you don’t agree with, and who you probably haven’t even met?

Second, you can vote. When substantially greater than 50% of the eligible voters show up for elections, the preaching-to-the-converted method is no longer certain to win the day. You’ll notice that Presidential candidates rely on their parties, Congressional and state candidates to engage in the bulk of this post-eristic communication, thus cementing and motivating the party faithful, while they themselves engage in enough baby-kissing, grandma-hugging and flowerly feel-good language to entice just enough previously uncommitted voters to win the day.

Barack Obama was highly effective at this kind of old-fashioned political persuasion in his campaign appearances – a persuasive edge which, as Dan Rather recently pointed out in an interview on CNN, he lost once he was in office, as he’s been highly ineffective at persuading Congress to do most things. This is a good example of the backlash of post-eristic argumentation strategies. Obama won the people’s confidence through his heuristic, hope-based campaigning, but the polarizing approaches of his party and Congressional candidates made coalition building all but impossible.

If sizeably more than 50% of us also showed up at Congressional and local elections, the mass-media strategies of parties and candidates would change significantly. The math would no longer favor the post-eristic approach. Candidates could go back to saying, Vote for me because I have a better plan.

And some of the just might. Then we’d all win.

Oh – and fund NASA.

Science and Fallacies: False Dichotomies Are a Weak Foundation for Law and Policy

Fallacies, like false dichotomies regarding who believes in 'real science', 

are shaping a number of our most important law and policy debates. 

         Several of today’s most vehement public policy debates are predicated on a chaotic combination of false dichotomy and a claws-out catfight for control of the dominant cultural and media narrative.  The arguments proffered over these vital public issues – immunizations and GMOs chief among them, although the disagreements over climate change, teaching evolution in schools, and abortion all bear similar elements –are ill-structured, fallacy-based, logically-inconsistent, and hyperbolically divisive.   And on such foundations are our laws written and enforced.

The dominant narrative regarding immunizations goes like this:

 “Government and pharmaceutical industry scientists say immunizations are not harmful and are for the common good, and anyone who does not believe this is an ignorant, uneducated, anti-science, superstitious, obstructionist, probably Christian-southern-Republican, idiot and should be punished by being forced to immunize their children.”

The dominant narrative regarding GMOs goes like this:

“Government and agricultural industry scientists say GMOs are not harmful and are for the common good, but anyone who believes this is an ignorant, uneducated, unreasonable, gullible, obstructionist, probably Christian-southern-Republican, idiot, and the agriculture industry should be punished by being forced to label and disclose to the public any molecule of GMO material included in any food product.”

Individuals who question vaccination policies (as well as climate change data or any other official reports bearing numbers and lab studies) are scathingly branded ‘anti-science’ and marginalized by those controlling the media narrative. Yet individuals who question GMO data are deemed cultural heroes who are battling ‘junk science’ and preposterous industry-funded studies.

These two false dichotomies – if you value science over superstition, you won’t question vaccines; and if you believe those industry shills and their junk studies about GMOs, you’re an idiot—are logical fallacies that serve only to divide the public into ever more distant and angry diametrically opposed camps.  Being called a superstitious idiot never changed anyone’s mind, ever.  

This means that as laws are adopted and enforced on these subjects—as parents are threatened with jail for not immunizing their kids, and huge lawsuits loom over GMO bans and labeling—Americans will be splintered into warring camps.  True, there are winners and losers in every policy debate. But where the process is fair and civil, where the arguments are based on reason and rationality rather than philosophically inconsistent (a.k.a. arbitrary) rhetorical fallacies, most losers can find a way to live with the results, content that they were heard and respected in the process.

Much of this rhetoric has recently focused on the question of whether or not you ‘believe in science’ as well as whether or not the data at issue is ‘real science.’ The arguments which result in marginalizing some people as being ‘anti-science’ assume that ‘science’ is immutable, absolute, not subject to question—and apparently something performed or funded only by entities some group of people decides they like, such as Merck rather than Monsanto.

I run into logical, emotional and philosophical problems with this initial premise. To me, science IS inquiry; science IS an ever-changing understanding; science IS something performed by and participated in by every one of us every day, and not purely the realm of experts in any camp. Science is of course informed by our cultural precepts, including our language, our faith, our emotions – it always has been.  

Following this alternative premise about science, then, I come down squarely in the camp of questioning the various industry-sponsored GMO studies – questioning, mind you, not outright rejecting on account of their source. I’m perfectly willing to accept the industry- and government-science supported notion that eating an ear of GMO corn is not likely to kill you, at least not directly or in the short term. Besides, killing off their customer base too quickly would be bad for business – heck, any virus knows that killing off the host too fast is bad strategy.

My concern in the GMO debate is that this attempt to vilify and discount all studies indicating that GMOs are not, in themselves, harmful, diverts the public policy arena from addressing the bigger-picture issues. For example, many GMO crops are manipulated to be pesticide and herbicide resistant, allowing—encouraging—far greater use of these chemicals which disrupt our ecosystems and quite possibly human health.  Most GMO crops are also gene-patented, which I—a dedicated open-pollination seed saver—find most troubling of all.

I personally find this heated public argument over GMO labeling and the question of whether eating GMOs is bad for you to be doing more harm than good.  It strikes me as the same structuring of public policy and law that led Americans to argue over whether the Government could look at your kid’s library records via the Patriot Act – while not raising one complaint over the complete and total surrender of your internet and telephonic communications privacy by warrantless and sealed-warrant FISA court investigations. They robbed the whole store, and we felt good because we got to keep the candy bars.  

By getting enraptured by the passion of proving that GMO science is junk science, we’ve lost sight of the real issues. Allowing companies to patent indigenously developed seed strains, allowing a tiny handful of companies to come into possession of an ownership interest of the world’s seed – and thus food –supply is a terrifying evil.  Having been duped by our vanity over science-based arguments into plunging down this side-show path about labeling and the safety of GMO produce items, we are missing the opportunity to have meaningful, substantive impact on this issue which may well shape the future of humanity.  The GMO industry will make a great show of fighting us all over labeling, then concede, leaving us once again standing in an empty store holding the candy bars with a dumb smile on our face.

My assertion that this labeling debate is a side show does not sit well with my liberal friends, to say the least—but that is nothing compared to what happens when I apply the same premises and logical inquiry to immunizations. If I should not believe the agricultural industry studies on GMOs, why should I believe the pharmaceutical industry studies on immunizations? This pronouncement is met at dinner parties with the most disdainful astonishment. The response, usually, is ‘Well, that’s different,’ followed by, ‘But it’s science.’

Well, there’s a logical argument for ya.

I know, there is a significant body of data and studies from a wide variety of sources indicating that most vaccines in use today have very low risks of direct harm to the recipient, and that the public in general benefits relative to particular diseases when a significant portion of the population is immunized. I did immunize my child – but not on the standard schedule, in fact, she did not receive some of the required child immunizations until well into her teens, when she talked through the issues with her doctor and made her own choices on them.  This failure to comply utterly with what ‘science’ tells us has resulted in my being called the most extraordinary names. It’s also led to significant bafflement, since I’m not uneducated, ignorant,  Christian, southern or Republican or any of those  other horrible false-dichotomy labels heaped on the people labeled as ‘anti-vaxxers.’ 

I have seen all the studies, is my response, and science thrives and develops by being challenged. That’s the whole reason we have peer-review journals – so that studies apparently performed along accepted standards of scientific inquiry can be challenged, duplicated, and debated.  I never was particularly concerned about the correlation between vaccines and autism myself, but I’m delighted that enough people raised that challenge that long-term detailed studies were undertaken on the subject. I tend to believe that knowledge about both immunizations and autism was substantively advanced by these studies—and that is  a very good thing indeed for all of us.

What most concerns me is the absolutist, hyperbolical position of the ‘pro-science’ camp, which asserts a downright tyrannical proposition: No one has any right to question the ‘science’ on this subject.  This position ignores, indeed attempts to stomp out, the notion that people have very, very good reason to question Government and industry findings regarding human health.

Unethical government-sponsored medical practices and public health scandals abound in living memory of many Americans.  The Tuskegee experiments lasted until the 1980s; the eugenics programs into the 1930s.  Forced lobotomies and forced sterilizations continued well beyond the eugenics program, and state law still allows court-ordered sterilization of individuals with developmental disabilities.  From 2001 to 2004 Washington DC and federal agencies covered up the fact that harmful levels of lead were in the public drinking water. Americans have good reason to start with the presumption that the Government is not telling the truth regarding health-related information.

Even removed from Government and industry influence, scientists frequently determine that what they declared with absolutely certainty at one point in time is actually absolutely wrong. For example, for a dozen years or more, ‘science’ in the form of respectable entities from the Mayo Clinic and National Institutes of Health on down have touted niacin supplements – vitamin B3 – as a natural means of cholesterol control. Niacin is cheap, available over the counter (unlike prescription statins), and in fact is highly effective at raising HDL (“good cholesterol”) and lowering LDL (“bad cholesterol”).

Last week, a prominent peer-reviewed medical journal published a report indicating that despite the fact that it raises good cholesterol and lowers bad cholesterol, niacin does nothing to stop heart disease. In fact, the study concluded, taking niacin supplements increases your odds of dying prematurely.  ‘Science’ said for years, with no reservations, this stuff is fabulous; now science says oops, actually it’s killing you.   This is hardly a one-off – remember DES? It was administered liberally to pregnant women from the 1940s to the 1970s to reduce pregnancy complications, and created a generation of DES sons and daughters with significant debilitating medical problems. 

So how does logic dictate that anyone who questions immunizations – particularly immunizations that have not been around for 50 years so that we can see the long-term impacts and unexpected generational consequences –is ignorant, uneducated, or an idiot?  The more you are educated about the American medical and pharmaceutical industry and its studies and programs, the more you have reason to question. ‘Science’ changes its mind every week about something affecting our health. Coffee has gone from being good for you to being bad for you so many times that I don’t bother to look anymore. Margarine was better for you than butter; now butter is better for you than margarine. Yet somehow, we are told, all immunizations are absolutely good all the time without fail or change in thinking, and if we don’t believe that, then we are idiots.

Increasingly, the law says we are more than idiots. If we doubt, if we question, if we hesitate to immunize our children on the mandated schedule out of concern for the risks (and there are genuine risks – you can check out the data at the U.S. Department of Health and Human Services Vaccine Compensation program, which has paid out compensation for over 3500 claims of death and serious bodily injury since the program’s inception in 1988, and they only pay for a very narrow range of claims for a small number of vaccines that do not, for example, include flu shots) we can be legally punished. Our kids can be precluded from attending public schools; in some states we might even be thrown in jail, which has long been the political response of tyrants to people who do not agree with them.

The Americans who dominate our present cultural narrative waive the flag of righteous, patriotic Science and wield it as a banner to vilify and marginalize those with alternate points of view. Fallacies, like the false dichotomy that anyone not with ‘real science’ is an idiot not worthy of discourse, have always been the scurrilous weapon of eristic argument – argument aimed at defeating, squashing and humiliating an enemy rather than engaging in heuristic inquiry and persuasive techniques designed to work together towards a common goal.  

Is a nation of those who sign on to the dominant narrative lined up to legally bulldoze those who bring a different perspective to the table really where we want to be going?

Or worse – is it where we have already arrived?

Citizen's United: It Doesn't Say What You Think It Says

Citizens United. 

To paraphrase the character Iago Montoya in The Princess Bride, you keep using these words, but I do not think they mean what you think they mean.

The present cultural mythology is as follows: In the Citizen's United case, the U.S. Supreme Court declared corporations to be people, declared the expenditure of money to be free speech, and allowed corporations to donate unlimited amounts to political campaigns and thus buy elections.

That myth is incorrect on all three points. Since many of the individuals now advocating for a Constitutional Amendment to 'overturn' Citizens United are also railing about the teaching of the myth of creation in public schools, and advocating fact-based scientific education, I strongly urge you to use the same approach here. Read the actual decision and base your arguments on the accurate facts and not the emotionally and politically manipulative spin which has been created and marketed by vested interest machines.

A few journalists and bloggers -- including Dan Abrams, son of the attorney who argued the case for Mitch McConnell, The Media's Shameful, Inexcusable Distortion of the Supreme Court's Citizen United Decision -- have pointed out just how drastically the media (and the Democratic party) have mis-reported Citizens United, but those voices seem to be whistling into the wind. Now that the Dems are strongly advocating a Constitutional Amendment, it is time to exercise the duties of citizenship and read these criticisms as well as the decision itself, and the history of campaign reform legislation and First Amendment cases in the US, and make a knowledgeable decision regarding our country's course of action on campaign financing.

There is also this brilliant analysis in TruthOut that I urge everyone to read and share, specifically about the proposed Constitutional Amendment: The Problem with Citizen United is Not Corporate Personhood.

Read It.

You need to read the decision, and read it several times over, carefully. It is not long and it is in accessible English.  Here are two links to it, the first from the Cornell Law School library Legal Information Institute, the second from Bloomberg Law:

http://www.law.cornell.edu/supct/html/08-205.ZS.html

http://www2.bloomberglaw.com/public/desktop/document/Citizens_United_v_Federal_Election_Commission_130_S_Ct_876_175_L_

Corporations Treated as People at Law.

The Citizens United case did NOT establish the proposition that corporations are treated as persons at law. That has been the case internationally since the inception of corporations, and in the United States since at least 1819, when the U.S. Supreme Court recognized in The Trustees of Dartmouth College v. Woodward that corporations are, at law, the same as persons for purposes of entering and enforcing contracts; in 1888 when in Santa Clara County v. Southern Pacific Railroad they stated that equal protection of the laws for all persons includes corporations; and in Pembina Consolidated Silver Mining Co. v. Pennsylvania in 188 they held that "Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."

The purpose of corporations is to create a legal entity -- effectively, a person for legal purposes -- separate from the individuals who found it; an entity which can engage in contracts, sue and be sued, be subject to regulation and penalty, and most critically to raise money for ventures while limiting or eliminating the risk of the personal assets of the founders and directors. That corporations are considered people at law is a well-established traditional legal principle that was in no way affected by the Citizens United decision. 

Corporations are the creations of law, and there is good reason to engage in serious and sober reflection as to whether our corporate laws are serving the best interests of the public, or whether they ought to be changed. Perhaps there should be regular review of corporate actions with far more discretion left to state governments to deny requests to renew corporate charters based on a list of publicly important factors like pollution, job creation, social justice and so on.  Perhaps we should look to a Rhenish system of capitalism, requiring labor, environmental interests, community and social justice interests to have voting representatives on all corporate boards.  A Constitutional Amendment to 'overturn' Citizens United could re-direct the way that business corporations buy elections -- but it won't do anything to affect fundamental corporate structure or corporate responsiveness to public needs from jobs to a clean environment to progress in the creation of services and invention and manufacture of goods. 

Money is Speech; Corporate Political Speech is Protected.

The U.S. Supreme Court held clearly in 1976 in the case of Buckley v. Valleo that spending money to influence elections is First Amendment protected free speech. Advertising --the expenditure of money to promote goods and services -- has been considered First Amendment protected free speech since the 1940s, though a string of cases has been differentiating between 'commercial speech' which can be more strictly regulated, and 'political speech' which is entitled to the highest protection and deference.  For example, the First Amendment protects outright lies in political speech and, subject to private civil action for defamation, in journalism. But commercial speech that falsely markets a product through deception can be punished by the government. 

Despite the limits of advertising regulation, the expenditure of money to promote a product, idea, service or position has been considered an exercise of Free Speech since the 1940s.  You -- whether you are a person or entity -- have the right to shout your political opinion from the rooftops with the upmost First Amendment protection, and if the rooftop you can afford happens to be a half-hour infomercial on a Fox channel, that's political free speech.  

All free speech can be regulated to some extent. 'Time, place and manner' restrictions are the most common and, if uniformly applied, most frequently upheld. This would include requiring protest marches to obtain permits or preventing protestors from blocking an alley which provides fire truck and ambulance access. But restrictions which attempt to restrict some speech based on the content of the message, or the identity of the speaker, are highly suspect under First Amendment law. "Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content.  The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers." Citizens United.

The Citizens United decision did NOT establish the proposition that spending money is a form of First Amendment protected expression; nor did it establish the proposition that the First Amendment applies to corporations (held by the U.S. Supreme Court in the 1970s in First Nat'l Bank of Boston v. Bellotti) and specifically to corporate free speech (NAACP v. Button).  

Direct and Indirect Spending; Non-profits and Unions.

Citizens United did not in any way alter the present restrictions on corporate (including non-profit), union or individual direct contributions to political campaigns. I'll repeat that because it's important. Citizens United did not in any way alter the present restrictions on corporate (including non-profit), union or individual direct contributions to political campaigns.  Corporations are prohibited from making direct campaign contributions from their own treasuries; they must establish specially designated and disclosed PACs for doing so. Citizens United did not change this. 'Overturning' Citizens United with a Constitutional Amendment would not in any way alter the ability of PACs -- or any wealthy individuals, like those 400+ billionaires we keep hearing about -- to 'buy elections.'

Citizens United only addressed indirect political expression, that is practices also commonly called electioneering.  Indirect political expression would involve me, or you, or a union, or a corporation, standing in the town square (or broadcasting on a paid ad on CNN, or taking out a page in the N.Y.Times) saying, "I don't work for the Ralph Nader for President Campaign, but by God, I've voted for this guy for decades and you should too. Get those dangerous Corvairs off our streets now!".

The Bipartisan Political Campaign Reform Act of 2002 had banned electioneering type communications within 60 days of a general election, and had banned such communications if paid for by corporate -- including non-profit -- or union general funds. In other words, I as an individual could still buy my half-hour Pro-Ralph-Nader infomercial to air on late-night tv up to 60 days before the election, but my nonprofit organization which advocates freeing the road from the dangers of old Corsairs could not do so despite the message content and timing being identical.

Much hay is being made over Teddy Roosevelt's 1907 Tillman Act which prohibited corporate contributions to campaign. This act was followed by several amendments in an anti-corruption vein. Although it was a lovely sentiment designed to assuage the public's concerns about corporate involvement in politics, there was no FEC, no enforcement, no public disclosure of campaign finance, and such prohibitions are super easy to dodge. A common tactic then, as now, is for corporate directors or trustees to write maximum-contribution checks in their own names, then draw bonuses from the corporate treasury for reimbursement.

In 1947, Congress passed the Taft-Hartley Act which again banned corporate and union campaign expenditures -- this time because the public and Congress were afraid that labor unions were getting to strong and engaging in corrupting influence in politics. Like the Tillman Act this prohibition had little practical effect -- though it marks the beginning of the erosion of legal protection for trade unions.

You could perceive of Citizens United as overturning parts of the Tillman Act and Taft-Hartley, but these were really non-existent from their inception. Enforceable campaign finance law really did not start until the Federal Election Campaign Act of 1971, and that statute did not prohibit these independent expenditures.  The Bipartisan Political Campaign Reform Act of 2002 was the first modern direct attempt to prohibit corporate, non-profit, association and union independent expenditures. Citizens United overturned the ban put in place by the Bipartisan Political Campaign Reform Act of 2002 on electioneering communications by corporations, non-profits (the case particularly involved a non-profit), associations and labor unions.

Foreign Corporations.

Pundits and politicians including President Obama are saying that Citizens United opens the door for elections to be bought by foreign corporations. The Citizens United decision only addressed 2 USC 441b, and did not even look at 2 USC 441e, which explicitly prohibits foreign nationals from participating in political campaigns and electioneering.  FEC regulations at 11 CRF 110.20(i) state:

A foreign national shall not direct, dictate, control, or directly or indirectly participate in the decision making process of any person, such as a corporation, labor organization, political committee, or political organization with regard to such person's Federal or non-Federal election-related activities, such as decisions concerning the making of contributions, donations, expenditures, or disbursements in connection with elections for any Federal, State, or local office or decisions concerning the administration of a political committee.

This absolute, broad prohibition was not in any way altered or affected or even considered by the U.S. Supreme Court in Citizens United.

Anonymity

Another popular myth is that Citizens United overturned the Bipartisan Political Campaign Reform Act of 2002's requirement of disclosure of the sources of funds for political ads. Citizens United UPHELD, by an 8-1 vote, the requirement of disclosure of donors to political advertisements.

Anonymity in politics, and in public issues advocacy generally, is an interesting subject. I was railing against anonymity in letters-to-the-editor and commentaries in online news journals in a Communications Ethics course that I teach at Champlain College one day, when one of my students reminded me that most of the most critical advocacy at the time of the American revolution, including the Anti-Federalist Papers, were published anonymously.  Seeing a friend wearing a button for a political candidate, or seeing a lawn sign in the front yard of a local business advocating for a vote on an issue referendum, can carry a lot of positive weight -- if my friend is voting for Ralph Nader, maybe I will have to look into the guy and see what he's about.  But there is no denying that identifying yourself in a public statement about politics can spark profound negative and even violent backlash. Our First Amendment protections and the realm of political speech in America has long protected anonymous speech, and leaves it to the listener to decide whether to embrace or reject a message that comes from an unidentified source.

Be that as it may, Citizens United upheld the requirements of disclosure -- and the public should be extremely cautious that any attempt to 'overturn' Citizens United by Constitutional Amendment does not throw that baby out with the bathwater.

Effects You Might Not Have Considered.

At its core, the Citizens United decision overturned the prior Supreme Court in 1990 in the case of Austin v. Michigan Chamber of Commerce, which had upheld the state of Michigan's ban on independent corporate electioneering expenditures. In that case a Chamber of Commerce had sought to run an ad expressing its favorable sentiments towards a pro-small-business candidate for state assembly.  Under Citizens United, it is true that Exxon or Monsanto could buy electioneering communications indicating that they favor a candidate that is pro-oil-industry or pro-GMO, but local chambers of commerce could also run infomercials about which candidate has a better track record for small business support, and environmental organizations can promote the candidates who have committed to cleaning up air and water and developing alternative energy.

I notice that in the rush towards a Constitutional Amendment to 'overturn' Citizens United, no one is talking about the fact that it places non-profits and unions on equal footing with commercial business corporations. Business corporations with multi-million-dollar coffers will always find a backdoor way to fund political elections. Unless voters stop voting for candidates with deep pocket support, this trend will not stop. But labor unions and non-profits have had a harder time moving funds into advocacy arenas due to stricter limitations and monitoring of their funds and activities. Overturning Citizens United won't daunt billionaires -- and individual billionaires were never affected by the decision anyway -- but it will extinguish an avenue of political participation and communication for non-profits and unions.

The Deputy Solicitor General for the FEC, Malcolm Stewart, argued passionately that allowing the case of Austin v. Michigan Chamber of Commerce to stand would give the government the power to ban books published by corporations or unions if somewhere within that book they advocated or opposed the election of any given candidate or elected official. Electronic distribution of political books could be prohibited; unions and non-profits could be fined or face criminal charges for hiring a writer to write a book critical of a union-busting candidate or a candidate who had worked for a polluting company.

There are many potential fixes of the problem of big-money influence in politics -- the main one being a knowledgeable electorate who demands that candidates not take big money, and who does not elect such candidates. There is nothing whatsoever stopping political parties from declaring their own policies against taking corporate donations, or indeed from taking any donations over a certain dollar figure, say $1000.  It is ironic to hear that the Constitution must be changed to stop people from buying elections, from the very public officials who are apparently offering up elections for sale. It's not much different from the inspector in Casa Blanca stating he is shocked, shocked to find there is gambling at Rick's while being handed his winnings.

A Constitutional amendment overturning Citizens United will not get money out of politics, will not reduce monied influence -- corporate or not -- in elections, will not make corporations more responsive to the needs of the public, and will curtail unions, associations, non-profits and small businesses right along with the Exxons and Monsantos and Cargills of the world. It could wind up banning books and magazine and newspaper articles and radio interviews right along with prime-time television advertisements.

I do not think it means what you think it means. It is time for thoughtful, meaningful dialogue on the future of our democracy -- not profound gestures like a Constitutional amendment undertaken in knee-jerk fashion without thinking through all the factors, reasoning and consequences.