HOBBY LOBBY AND THE PATHOLOGY OF CITIZENS UNITED
Ellen D. Katz*
The Supreme Court is presently considering a contentious dispute involving
access to contraception, the requirements of the Affordable Care Act, and religious
objections to those requirements raised by several for-profit corporations and their
owners. Specifically, the Court must decide whether the ACA’s requirement that
employer-sponsored health plans provide all types of FDA-approved contraception
burdens free exercise rights protected by the Religious Freedom Restoration Act
and the First Amendment. 1 Complex and consequential in numerous respects, this
question has relevance here, at a symposium on campaign finance reform, because
of the way in which Citizens United v. Federal Election Commission2 bears on its
resolution.
The pending ACA dispute might have arisen absent Citizens United, but the
ruling decidedly laid the foundation for it. Four years ago, Citizens United held that
for-profit corporations possess a First Amendment right to make independent
campaign expenditures, and, in so doing, invited speculation that such corporations
might possess other First Amendment rights as well.3 The petitioners in Conestoga
Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are
*
Ralph W. Aigler Professor of Law, University of Michigan Law School.
See Sebelius v. Hobby Lobby Stores, Inc., 134 S.Ct.678 (Nov. 26, 2013)(granting petition for
certiorari); Conestoga Wood Specialties Corp. v. Sebelius, 134 S.Ct. 678 (Nov. 26, 2013) (granting
petition for certiorari).
2 558 U.S. 310 (2010).
3 Id.
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among the intended beneficiaries of the Free Exercise Clause, 4 and, along with the
respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons”
under RFRA. 5
To be sure, neither suggestion follows inexorably from Citizens
United and the precedential role of the case in the pending disputes remains to be
seen.6 Still, it seems fair to say that the Court’s fidelity to the Citizens United will
shape how it evaluates the pending cases.
Citizens United, moreover, promises to influence Conestoga and Hobby Lobby
in a distinct way. Apart from its concrete holding and the ramifications of it, Citizens
United approached precedent in a manner the Court is likely to follow in the pending
ACA challenges. As explained in more detail below, Citizens United reads as if the
Court either misunderstood or misrepresented applicable precedent, but the
decision is better understood to have reconceptualized what precedent is. Citizens
United cast off both the limits and the normativity of prior holdings, and thereby
embraced an approach to precedent that is both troublesome and consequential.
Far from an aberration, this approach has shaped other decisions, and now seems
poised for reprise in the pending ACA cases.
Two passages from Citizens United capture its singular approach to
precedent. The first states that “political speech does not lose First Amendment
protection ‘simply because its source is a corporation’” and that the Court has
Brief for Petitioners, Conestoga Wood Specialties Corp. v. Sebelius
Id.; Brief for Respondents, Sebelius v. Hobby Lobby Sotres, Inc., at.
6 Many of the briefs filed in ACA cases do not mention Citizens United at all, while others do so only in
passing. See, e.g., Brief for Petitioners, Sebelius v. Hobby Lobby Stores, Inc., (others).
4
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2
“rejected the argument that political speech of corporations or other associations
should be treated differently under the First Amendment simply because such
associations are not ‘natural persons.’” 7 The opinion cited First National Bank of
Boston v. Bellotti as authority for both propositions, which is puzzling since Bellotti
endorsed neither of them.
The language Citizens United quoted from Bellotti does indeed come from the
decision, and yet, the Bellotti Court never “rejected the argument that political
speech of corporations . . . should be treated differently under the First Amendment
simply because such associations are not ‘natural persons.’” 8 In fact, the Bellotti
majority expressed no doubt that the political activities of corporations could be
regulated more extensively than the political activities of individuals.9 That is, it
never questioned the notion that corporations were artificial, state-created
institutions vested with special privileges that justified additional regulation in the
political sphere.10 Instead, the Bellotti majority crafted what it described to be a
limited exception to that principle. It allowed corporations to make expenditures in
connection with referenda because it believed the First Amendment interests of
others would be served by allowing such expenditures. In so doing, the Court
Citizen United, 558 U.S 310 (2010) (quoting First National Bank of Boston v. Bellotti, 435 U.S. 765,
776, 784 (1978)).
8 Citizen United, 558 U.S 310 (2010) (quoting First National Bank of Boston v. Bellotti, 435 U.S. 765,
776, 784 (1978)).
9 Id. at 789 (majority opinion) (“[C]orporations are wealthy and powerful and their views may drown
out other points of view.”).
10 See id. at 809.
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emphasized that it was not holding that corporations themselves enjoyed First
Amendment rights.11
As has been widely observed, Citizens United disregarded these carefully
crafted limits.12 The Court read Bellotti to support precisely what it disavowed,
namely that a corporation is entitled to make unrestricted expenditures in
connection with any election, not just a referendum, and that a corporation
possesses a First Amendment right to do. 13 No longer would the “special
advantages” corporations enjoy provide cause to regulate corporate political
activity, or, indeed, treat corporations differently from individuals engaged in such
activity. The Court said so explicitly, noting these advantages “do[] not suffice to
allow” the disputed regulations. But that holding was, without doubt, new law
despite the Court’s insistence that that precedent dictated this result.14
Similarly puzzling is Citizens United’s suggestion that that the problem
Congress intended to target in Bipartisan Campaign Reform Act (BCRA) – namely,
preferential access and the opportunity to influence – might not even be a problem
11Id.
at 776 (stating that the “Constitution often protects interests broader than those of the party
seeking their vindication.”).
12 See, e.g., Citizens United v. FEC, 558 U.S. 310, 442 (2010) (Stevens, J., dissenting) (“The only thing
about Bellotti that could not be clearer is that it declined to adopt the majority's position.”); Robert L.
Kerr, Naturalizing the Artificial Citizen: Repeating Lochner's Error in Citizens United v. Federal Election
Commission, Communication Law and Policy 15:4 (Fall 2010) (noting that Citizens United
“mischaracterizes” Bellotti.).
13 See Citizens United, 558 U.S. at 346-47.
14 See id. at 314.
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at all.15 Justice Kennedy’s opinion stated that “[w]hen Buckley [v. Valeo] identified a
sufficiently important governmental interest in preventing corruption or the
appearance of corruption, that interest was limited to quid pro quo corruption.” 16
Even if corporate independent expenditures could lead to ingratiation and
preferential access – something Justice Kennedy doubted – “[i]ngratiation and
access . . . are not corruption.”17 Congress was, accordingly, without authority to
regulate such practices. This, too, represented new law, but again Citizens United
insisted precedent dictated the result.
Notably, when Justice Kennedy said the governmental interest Buckley
identified “was limited to quid pro quo corruption,” he cited not only Buckley itself,
but also the dissenting portion of his opinion in McConnell v. Federal Election
Commission, which made precisely this point. 18 The McConnell citation was
necessary because Buckley and, indeed, the relevant precedent after Buckley
through McConnell and right up until Citizens United left no doubt whatsoever that
congressional power in the realm of campaign finance extended beyond blocking
See id. at 359. The BCRA provisions as issue in Citizens United prevented corporations and unions
from using general treasury funds for “electioneering communication,” a practice BCRA broadly
defined to include broadcast and related types of communication that mentioned candidates for
federal office during specified periods. See id. at 321. Congress meant for these provisions to rein in
so-called “issue advocacy,” namely, advertisements that were intended to endorse or condemn
candidates but did so without using words like “elect” or “vote” and hence fell outside the preexisting regulatory framework. See id. at 439-440 (Stevens, J., dissenting).
16 See id. at 359 (citing McConnell v. FEC. At 296 (Kennedy, J., concurring in part and dissenting in
part) (citing Buckley, at 26-28).
17 Id. at 360.
18 See id. at 359 (citing McConnell v. FEC. At 296 (Kennedy, J., concurring in part and dissenting in
part) (citing Buckley, at 26-28).
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quid pro quo corruption. 19 Notwithstanding what Citizens United said, the interest
Buckley identified was decidedly not limited to preventing quid pro quo corruption.
To be sure, long before Citizens United, Justice Kennedy disputed
congressional power to regulate campaign spending beyond what is necessary to
prevent outright bribery, and had expressly called on the Court to overrule Buckley
itself, primarily for the untenable line it drew between campaign contributions and
expenditures. 20
Hence, his inclination to cabin congressional power in Citizens
United was in of itself unsurprising. What is surprising, however, is the manner in
which he did so.
Dissenting justices often find themselves able to vindicate once losing
positions as the Court and applicable doctrine evolve. And yet, they typically do so
by explicitly overruling prior holdings that no longer command a majority on the
Court.21 Citizens United, to be sure, did its share of overruling,22 and yet it
nevertheless relied on Buckley and Bellotti for propositions they never supported.
Indeed, Citizens United read these prior decisions in a manner that would earn a first
year law student a very poor grade. The decision failed to distinguish holdings from
dicta and discarded carefully crafted limits in favor of broad principles that had
19
See generally Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009).
See, e.g., Randall v. Sorrell, 548 U.S. 230 (2006) (Kennedy, J., concurring); Nixon v. Shrink Missouri
Government PAC, 528 U.S. 377 (2000) (Kennedy, J., dissenting) (criticizing Buckley’s “wooden
formula”);
21 See e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, (1996), overruling Pennsylvania v. Union Gas
Co., 491 U.S. 1 (1989);Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, (1985)
overruling National League of Cities v. Usery, 426 U.S. 833 (1976).
22 See 558 U.S. at (overruling Austin v. Michigan Chamber of Commerce and portions of McConnell v.
FEC).
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been disavowed. All the while, Citizens United insisted that it was upholding long established principles rather than charting new ground.
The Court might have misread precedent or, alternatively, meant to obscure
the breadth of its holding, but neither possibility strikes me as plausible. The
novelty of the decision was widely noted, both by Justice Stevens’ dissent and in the
commentary that ensued, all of which made clear that Buckley and Bellotti were far
more limited than the majority allowed. 23 More probable, then, is that the Court
genuinely understood the earlier decisions to endorse the propositions for which
they are cited.
If that’s right, however, the Court necessarily held (and likely
continues to hold) an unconventional understanding precedent.
Indeed, Citizens
United may be best understood as reconceptualizing what precedent is and what it
does.
In Citizens United, past decisions were treated very much like legislative
history, namely, as narratives filled with data points that might be mined for
supporting arguments. Holdings (particularly limited ones) became contingent
explanations for those data points, while dicta was excised and transformed to
support binding rules. In so doing, Citizens United denatured precedent of what
made it precedent, by stripping the prior decisions of their normativity and
limitations and rendering them instead sources of useful fact patterns and slogans.
Citizens United, 558 U.S. 310 (2010) (Stevens, J., dissenting); Kerr, supra note; Richard Hasen,
Citizens United and the Illusion of Coherence, 109 MICH. L. REV. 581 (2010).
23
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Recall, for example, Justices Brennan and Rehnquist disputing the
significance of Title VII’s Bennett Amendment to an equal pay claim,24 or their
disagreement of the meaning of section 703(j)’s ban on preferential treatment,25
and Citizens United’s use of precedent comes into focus. The weight to accord a
particular statement or textual provision is a matter of perspective and desired
outcome. Buckley, after all, might have justified its decision to cap expenditures by
limiting congressional power to quid pro quo corruption. So too, Bellotti could have
justified it decision to allow corporate expenditures in referenda by recognizing
corporations to possess broad first amendment rights. That neither decision did so
is hardly dispositive, and becomes, at most, something to consider.
Needless to say, treating precedent like legislative history is a contentious
and consequential move. It terms of judicial craft, the approach ignores the vast
substantive difference between affirming an established principle and describing
and defending a new one. As such, it helps explain why the Court in Citizens United
was so insistent on issuing a sweeping holding despite the ready availability of
several more narrow ones, 26 and why it was so uncomfortable with the exemptions
Compare County of Washington v. Gunter, 452 U.S. 161 (1981); with id. at 194 (Rehnquist, J.,
dissenting).
25 United Steelworkers of American, AFL-CIO-CLC v. Weber, 443 U.S. 193 (1979) with id. (Rehnquist,
J., dissenting).
26 The Court, for example, might have held that BCRA’s corporate spending limits did not apply to a
full length documentary shown on video on demand; or it might have simply granted the relief
Citizens United initially sought, that, namely that BCRA was unconstitutional as applied to Citizen
United’s screening of the movie “Hillary.” See Citizens United v. FEC, 558 U.S. 310 (2010) (Stevens, J.,
dissenting); Hasen, supra note, at 591-94.
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BCRA granted to certain institutions. 27 Both moves, to be sure, might have occurred
even if the Court had been inclined to read precedent more conventionally. And yet,
both were facilitated by the Court’s belief that precedent dictated outcome, a belief
that made more limited rulings seem inadequate, and crystallized why the
exemptions BCRA granted to some institutions looked so problematic to the Court.28
The Court’s recasting of precedent in Citizens United appears to be part of a
larger project. Already manifest in other cases,29 it promises to shape resolution of
the pending ACA disputes. In fact, Judge Tymkovich’s lead appellate opinion in
Hobby Lobby Stores v. Sebelius, reads, in significant respects, much like Citizens
United on this point.
Hobby Lobby asks whether for-profit corporations are “persons” within the
meaning of the Religious Freedom Restoration Act (RFRA). The answer to this
question lies, primarily, in whether the Free Exercise Clause was understood to have
Citizens United, 558 U.S. at [Part III.B.2] describing BCRA’s exemption of media corporations “all
but an admission of the invalidity of the anti-distortion rationale” and “a separate reason” for
invalidity the law”).
28 Citizens United, 558 U.S. at [Part III.B.2] (questioning whether exempt institutions might be
subject to regulation absent an unequivocal constitutional ruling, and whether those exempted were
sufficiently distinct from those subjected to regulation).
29 For example, the stance is arguably manifest in Shelby County v. Holder, 133 S.Ct. 2612 (2013), in
which the Court relied equal sovereignty doctrine as the basis for striking down the coverage
formula set forth in the Voting Rights Act. Dicta from the Court’s earlier pass at the issue four years
earlier mentioned equal sovereignty, see Northwest Austin Municipal Utility District No. 1 v. Holder,
but, under no conventional reading of that language would it have been binding on the Court in
Shelby County. The Chief Justice nevertheless suggested it was, when he chastised Justice Ginsburg
for “analyz[ing] the question presented as if our decision in Northwest Austin never happened.” See
Shelby County, 133 S.Ct. at 2622-24, 2630 (majority opinion); id. at (Ginsburg, J., dissenting).
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protected such corporations when Congress enacted RFRA in 1994. 30 To answer
that, Judge Tymkovich’s opinion surveyed the relevant caselaw and read it to
recognize that these corporations were so protected. Much like Citizens United,
however, the relevant caselaw was more limited than the opinion allowed.
More specifically, the two lines of cases on which Judge Tymkovich relied, at
most, simply did not address whether for-profit corporations might be protected by
the Free Exercise clause. One set of cases recognized free exercise claims brought
churches and related institutions organized as non-profit corporations under
relevant state laws.31
The second group of cases involved free exercise claims
pressed by individuals in connection with restrictions on their for-profit business. 32
Under a conventional understanding of precedent, these cases can not be read to
establish that for-profit corporations possess constitutionally-grounded free
exercise rights. Nor do they establish that Congress necessarily intended to include
such corporations among the “persons” RFRA would protect, 33 particularly since
for-profit corporations had, at the time, yet to secure first amendment protections
for their activities in the political realm and precedent seemed decidedly against
See Hobby Lobby, 723 F.3d. 1114, 1133 (10th Cir. 2013) (concluding that RFRA meant to restore
Free Exercise jurisprudence to what it had been prior to the Employment Division v. Smith, which
itself did not address whether the Free Exercise reached corporations.)
31 See Hobby Lobby, 723 F3d at 1134 (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law”
prevailed on its Free Exercise claim);
32 See Hobby Lobby, 723 F3.d at 1134-35 (citing United States v. Lee, 455 U.S. 252 (1982) and
Bruadfeld v. Brown, 366 U.S. 599 (1961) (plurality).
33.
30
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such recognition. 34 weighs against the suggestion that Congress meant to include
for-profit corporations among the persons RFRA would protect.
Judge Tymkovich’s opinion nevertheless read this precedent as powerful
authority for that very suggestion. The opinion, for example, was unpersuaded that
the free exercise claims brought by the individual plaintiffs in Lee and Braunfeld
would have “disappeared” had their for-profit businesses been been incorporated.
While the plaintiffs in both cases notably lost on the merits, the supposition seems
to be that, had the facts been different and the plaintiffs had incorporated, their
corporate status would have changed nothing about the analysis. They might have
still lost, but the reason would not have been that for-profit corporations fall outside
the protection of the Free Exercise clause. That’s possible, perhaps, but that’s well
short of a holding under any conventional reading of precedent.
More broadly, Judge Tymkovich’s decision insists that a sincerely-religious
person might plausibly “find a connection” between his or her religious beliefs and
the pursuit of profit, either because the business serves the religious community or
because this person might be seeking to show that a corporation can make a profit
while adhering to religious values. It’s a provocative argument, but what’s most
interesting about it, for present purposes, is not whether or not it persuades, but
instead the purpose for which it is offered. After all, the statutory question Hobby
Lobby presents is not whether the interests of the “sincerely religious” should
34
See Austin v. Michigan Chamber of Commerce.
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survive a decision to incorporate for profit (and thus garner the benefits secured to
such corporations as state-created artificial entities).
Instead, the question is
whether Congress would have thought they did, based on applicable precedent at
the time Congress enacted RFRA.
Precedent at the time fell well short of recognizing the Free Exercise Clause
to protect for-profit corporations. The existing caselaw never confronted the
question, and instead recognized, intimated, or simply failed to foreclose the
prospect that far more narrow protection might be available to individuals despite
their profit-seeking motives, or their decision to form organizations like churches
that secured not-for profit status.
Indeed, the absence of first amendment
protection for corporate political activities weighs against the suggestion that
Congress meant to include for-profit corporations among the persons RFRA would
protect.
Judge Tymkovich’s opinion notes it is troubled “as we believe Congress
would be” by the prospect that a constitutional distinction could lie in the statutory
distinction between for-profit and not-for-profit status. And yet, the question is not
what Congress would find troubling, but what it thought when it enacted this
statute.
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