Spawn of Citizens United

During my six years as Executive Director of Indiana’s ACLU, if my youngest son called the office when I was out, he’d leave a message: “just tell her Satan’s spawn called.” (He found the popular caricature of the ACLU endlessly amusing.)

I thought about “spawn” when a Facebook friend pointed me to a recent, truly bizarre ruling from the Seventh Circuit Court of Appeals.

When the Supreme Court decided, in Citizens United, that corporations have a right to free speech, it drew a dangerous equivalence between individual human beings and the legal constructs created to simplify the transaction of business and commercial transactions. In the immortal words of Mitt Romney, the Court ruled that for purposes of free speech, “corporations are people, my friend.”

Citizens United was itself the spawn of a series of unfortunate Supreme Court rulings that effectively equated money with speech. It thus had the effect of handing a huge megaphone to corporate entities able to outspend–and thus “out-shout”–individual voters. The ruling has been exploited to allow for the creation of so-called “SuperPacs,” and it has raised a number of thorny issues, among them: what happens when shareholders don’t agree with the corporate “message”? What if they don’t agree that money should be spent for such arguably non-business-related purposes?

The problems and questions that have emerged in the wake of Citizens United point to the essential absurdity of treating artificial constructs as if they were people. And now the ruling is spawning even more nonsensical progeny. If you have had trouble getting your head around the nature of a corporate right to “free speech,” try this one: the Seventh Circuit says corporations have a right to the free exercise of religion.

The court came to this bizarre conclusion in a case brought by K & L Contractors, a secular, for-profit company that is challenging the Obama Administration’s mandate that contraception coverage must be provided by employers as part of their health insurance coverage.  The court ruled that the fact “that the Kortes’ [the majority shareholders] operate their business in the corporate form is not dispositive of their claim,” a proposition for which it cited Citizens United.

The result in this case is clearly contrary to the law prior to Citizens United. For decades, the law has essentially recognized a trade-off: if you opt to do business in corporate form, you get to take advantage of the benefits that status confers, especially the ability to limit your personal liability for debts the corporation incurs. In return, you follow the rules that apply to corporations, including loss of the right to impose your religious faith on your employees.

Even for individuals, asserting a religious objection to a law of general application is seldom seen as justification for ignoring that law. If my religion requires that I use cocaine, or sacrifice my first-born, or chain up my spouse, the courts are unlikely to give me a pass from the rules against those behaviors.

Let’s hope Citizens United hasn’t changed that result.

In fact, let’s hope the Supreme Court comes to recognize how reckless that decision really was, and limits or overrules it.