Justice Ginsburg’s impassioned dissent in the Hobby Lobby case warns about the “startling breadth” of the court’s holding that some for-profit corporations have religious freedom rights. She, like Sandra Fluke, is worried about a wave of religious freedom claims by other corporations. But another possible outcome of the case may be more to her liking: Hobby Lobby could eventually force the court to take a more sympathetic stance toward campaign finance regulation.
The Hobby Lobby decision involved two family held corporations that operate their businesses on religious principles and object to the Affordable Healthcare Act’s requirement that their insurance cover drugs they believe to cause abortions. Writing for the five conservative justices, Justice Alito held that the corporations qualify as “persons” under the Religious Freedom Restoration Act, and that the government failed to use the least restrictive means of accommodating their religious objectives. Alito was careful to emphasize that the decision covers only closely held corporations — that is, corporations that only have a handful of shareholders — not large corporations like General Motors or IBM. But Justice Ginsburg rightly points out that the logic of the decision also extends to any big corporation that can demonstrate that it is religiously oriented.
Here’s the connection to campaign finance. In the Citizens United decision striking down restrictions on independent expenditures by a corporation shortly before an election, the court emphasized that the protection for free speech in the first amendment does not distinguish between human speakers and corporations. It says simply that “Congress shall make no law … abridging the freedom of speech.” The court also rejected the suggestion that some corporations — such as for-profit media corporations — should be treated differently than other corporations for free speech purposes.
The first part of this logic is quite similar in the two cases. Like Citizens United, the Hobby Lobby majority concluded that there is no basis for distinguishing between corporations and natural persons. But the court is much more comfortable drawing distinctions among corporations in Hobby Lobby than it was in Citizens United. In Hobby Lobby, Justice Alito dismisses concerns that it will be too hard to distinguish those that are entitled to protection from those that are not. He writes that the government has more scope to regulate ordinary for-profit corporations than those that are religiously oriented. As the court becomes more comfortable making nuanced determinations in the religious freedom context, it also may become more willing to make distinctions in the campaign finance context.
There is another way in which Hobby Lobby subtly adjusts Citizens United as well. In Hobby Lobby, Justice Alito is careful to insist that the purpose of corporate rights is to further the interests of the individuals involved, such as shareholders, officers and employees. “When rights, whether constitutional or statutory, are extended to corporations,” he writes, “the purpose is to protect the rights of these people.” This emphasis on the interests of the people involved may breathe new life into the argument (rejected in Citizens United) that campaign finance regulation can be justified as ensuring that shareholders are not forced to subsidize political expenditures they do not like.
I do not mean to suggest that the logic of Hobby Lobby can simply be transplanted directly into campaign finance and other areas involving the rights of corporations. There obviously are important differences. The court decided Hobby Lobby on statutory grounds, under the Religious Freedom Restoration Act, rather than under the Free Exercise Clause of the Constitution. Hobby Lobby thus is not technically a constitutional case, whereas Citizens United is. The distinction between religious and non-religious corporations also is different than the distinction between a media corporation like The Washington Post and the corporation that litigated the Citizens United case.
But the message of Hobby Lobby — which calls for sensitive treatment of the distinctions between different kinds of corporations, and solicitude for the interests and perspectives of the people involved — seems to me to have very important implications for the campaign finance context. Whether the Court’s Hobby Lobby decision does indeed have “startling breadth” remains to be seen. But if it does, some of that breadth may show up in surprising places, like the court’s future campaign finance cases.