What the Supreme Court’s refusal today to agree to decide whether to strike down the federal statute that bars corporations from making contributions directly to candidates and political parties might suggest about the outcome of Hobby Lobby

When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati­tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. … To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi­cal process.

– John Roberts, McCutcheon v. FEC, Apr. 2, 2014

My reaction when I read that last: OMG! You mean it’s finally occurred to Roberts and Kennedy that CEOs of publicly-held corporations don’t actually necessarily share the same political views as all those other members of these “associations of citizens” from whom the CEO, er, the corporation, derives its First Amendment speech rights?  (And religious rights, too, although that’s another case, isn’t it?)

Actually, that was a comment I posted to a Slate article last week about McCutcheon that included the above quote from that opinion.  The religious-rights cases I had in mind were, of course, the Hobby Lobby Stores v. Sebelius and Conestoga Wood Specialties v. Sebelius, the for-profit-corporation ACA-contraceptive-mandate cases, which were argued at the court on Mar. 25.

A recurring theme in my posts on AB about the Supreme Court, including this one on the Hobby Lobby argument, is that the conservative justices have what amounts to a precise 1980s-era Conservative Movement legislative agenda that they are hellbent on making the law of the land, and that one of their tactics to quietly segue back and forth between mutually exclusive pronouncements of law–something that was illustrated yet again today in the court’s decision to agree to hear a case concerning interpretation of Federal Rule of Civil Procedure 8, the key statutory procedural rule laying out “pleading” requirements.  It’s clear that court’s decision next term in this new case will reverse, but only to narrowest extent necessary, two relatively recent opinions of theirs in which they outright rewrote the key subsection of Rule 8 in order to impose a longtime policy choice of the Conservative Movement.

In the case rejected today, Dart Cherokee Basin Operating Co. v Owens, the Chamber of Commerce, as well as the member of the de facto-gatekeepers Supreme Court bar–i.e., a small cadre of extremely expensive Washington, D.C.,-based Supreme Court practitioners almost all of whom served early in their careers as Supreme Court law clerks–who is representing the corporate petitioner, after all, pointed out that another law, the one of unintended consequences, means that a slight revision to that earlier court-rewrite of Rule 8 is necessary to serve another Conservative Movement interest: killing class action lawsuits filed in state court by forcing them into federal court.

But I digress.  Slightly.  While Scalia and two or three of the other justices are willing to do this seguing-back-and-forth thing, shamelessly and baldy even in opinions issued in the same court term, even a single day apart, Roberts and Kennedy apparently are not.  Last spring, when the University of Texas affirmative action case, which was argued early in the court’s term, in October, remained remained unresolved until the final days of the term in late June, pretty much everyone was surprised.

But not me. The problem was that later that term, a case in which they planned to gut the Voting Rights Act would be argued, and a basis for the states’-rights ruling they planned to issue in that case would conflict in part with the anti-states’-rights ruling they wanted to issue in the affirmative action case.  And–for obvious reasons–campaign and election law trumps affirmative action law in importance to them, any day of the week.  Or at least on the last Monday and Tuesday in June.  Thus, the Politico headline on Jun. 24, 2013: “SCOTUS passes on big affirmative action decision.”  The Voting Rights Act opinion was issued the next day.

This term, the highest-profile cases are Hobby Lobby/Conestoga Wood and McCutcheon, the latter which of course parlayed Citizens United–which premised its ruling regarding corporations not on a pronouncement that corporations are people but instead that corporations are “associations of citizens” and derive First Amendment rights from the First Amendment rights of their human-citizen shareholders.

Which presents the question of why CEOs of publicly-traded corporations should be entitled under the guise of the First Amendment’s speech clause to co-opt the free-speech rights of people–including, as I pointed out on the eve of the Hobby Lobby argument, and several other times, as well, public-union pension fund participants–whose political views and economic interests diverge significantly from the corporate CEOs who are now, courtesy of Citizens United, using shareholder money to (loudly, yet anonymously) express their own political views via PACs.

This derivative-First-Amendment-rights-of-shareholders point has, best as I can tell, been mostly ignored, probably because most people think that Citizens United actually declared corporations themselves people.  Which it didn’t.

But somehow, the derivative-First-Amendment issue–derivative of whose First Amendment rights?–did manage to penetrate the Hobby Lobby/Conestoga Wood argument.  Roberts indicated that, yes, there is a question of whose opinions corporations derive their First Amendment rights from, and that a ruling allowing only closely-held non-publicly-traded for-profit corporations to derive their First Amendment rights from their shareholders might be just the ticket here.

But a ruling of that sort poses the problem of a partial conflict with Citizens United, which made no such distinction.

Today, in a case called Iowa Right to Life Committee v. Tooker, the court denied a petition, filed by the same uber-rightwing-activist lawyer who represented McCutcheon, that asked that the court to strike down an Iowa statute that, like federal statute, bars corporations from making contributions to candidates and party committees.  Citizens United allows corporations to spend unlimited amounts ostensibly independently to support or oppose candidates. And McCutcheon allows individuals to contribute to as many candidates as they like.  The Iowa Right to Life Committee, which is not a for-profit corporation, sought to mesh the two opinions into one that allows corporations, for-profit and nonprofit alike, to contribute to party committees and to as many candidates as they wish.  Lawrence Hurley of Reuters writes:

By opting not to hear the case, the court left intact an 8th U.S. Circuit Court of Appeals ruling from June 2013 that upheld the ban. By so doing, the court indicated it was unwilling for now to press ahead with further deregulation of campaign finance following the 5-4 ruling on Wednesday in the case of McCutcheon v. Federal Election Commission.

Iowa Right to Life Committee Inc, an anti-abortion group, challenged the ban, saying it violated the free speech and equal protection of the law provisions of the U.S. Constitution. The group sued after Iowa revised its laws in light of the 2010 Supreme Court ruling Citizens United v. Federal Election Commission, in which the court said corporations and unions could make unlimited independent expenditures that are not coordinated with a campaign.

The Iowa law was changed to allow for independent expenditures by corporations and unions but the ban on direct contributions to candidates and committees by corporations was left intact. Unions can make such contributions.

My guess is that the Five decided to forego this opportunity because the amounts of money at issue in direct contributions from rightwing nonprofits would likely be less than those of unions, environmental groups, and such–and because they’re likely to rule for Hobby Lobby and Conestoga Wood as “associations of citizens” of like-minded shareholders.  Which, Citizens United notwithstanding, publicly-held corporations are not.

And, notwithstanding Roberts’ odd conflation, during the Hobby Lobby/Conestoga Wood argument, of the financial interests a for-profit corporation has in not suffering racial discrimination, and a for-profit non-religious-purpose corporation’s derivative exercise of religion–a truly ridiculous, but almost-entirely unnoticed, analogy, there really is a limit to how far the definition of “person” can be stretched for First Amendment purposes, without entering the realm of the patently absurd.

A broad ruling of the sort that Iowa Right to Life Committee sought could have sparked–probably would have sparked–broadly supposed proposed laws, or possibly SEC regulations, actually prohibiting publicly-held corporations from contributing to political parties, candidates, and PACs and other independent political expenditures, without first putting the matter to a vote by the members of their associations of citizens.

Which, regarding PACs and other independent political expenditures as per Citizens United,  would be a terrific option for Democrats to propose as legislation and to campaign on.


UPDATE: The Supreme Court also today declined to hear another high-profile corporate-First-Amendment-rights case, one that cutely combined Citizens United’s corporate-free-speech rights with Hobby Lobby/Conestoga Wood’s corporate-right-to exercise-religion claim.

Given that the claim there was a free-expression-in-the-exercise-of-religion argument brought under the First Amendment’s speech clause rather than directly under its free-exercise-of-religion clause, the court’s refusal to hear the case doesn’t portend much about the outcome of Hobby Lobby/Conestoga Wood, though.


Cross-posted at Law of the Jungle.