Hobby Lobby Ruling Fuels Amendment Push
Posted at 3:41 p.m. on July 2
(Tom Williams/CQ Roll Call File Photo)
In its recent ruling to confer religious liberties on closely held corporations, the Supreme Court makes no mention of its 2010 Citizens United v. Federal Election Commission ruling.
Yet the high court’s Burwell v. Hobby Lobby Stores ruling grows directly out of its Citizens United decision to reject limits on independent corporate political spending. And the 5-4 Hobby Lobby ruling deepens the rift on Capitol Hill between liberals agitating for limits on corporate power and conservatives railing against government intrusions on free speech.
Senate Democrats have already scheduled a vote on a constitutional amendment that would give Congress and the states the power to restrict political spending. Such an amendment directly challenges both Citizens United and the court’s landmark Buckley v. Valeo ruling, which in 1976 upheld limits on campaign contributions but found caps on political spending unconstitutional.
The Hobby Lobby ruling has stoked liberal anger over the court’s expanding “corporate personhood” doctrine, which critics on the left argue threatens a host of environmental, civil rights and consumer safety laws. Now some Democrats on Capitol Hill are considering additional amendments that go beyond campaign financing to more explicitly spell out that corporations are not people.
On the day of the Hobby Lobby ruling, Sen. Edward J. Markey, D-Mass., announced that he would sign onto a joint resolution authored by Sen. Jon Tester, D-Mont., that proposes a constitutional amendment stating the terms “people,” “person” or “citizen” as used in the Constitution do not include corporations, limited liability companies or other corporate entities. Rep. Jim McGovern, D-Mass., is rounding up support for a House version of the measure.
“From Citizens United to Hobby Lobby, Supreme Court majorities continue to extend our basic Constitutional rights — the inalienable rights held by individuals — to corporations,” Markey said in a statement. “Corporations are not people, period.”
Markey and Tester are also co-sponsors of Democrats’ amendment to limit campaign spending, which is authored by Sens. Tom Udall of New Mexico and Michael Bennet of Colorado and is slated for a vote this summer. Senate Democrats also plan a vote on the newly reintroduced campaign disclosure bill known as the DISCLOSE Act. Democrats say the various measures go hand in hand.
“It’s going to take a comprehensive approach to campaign finance reform to make sure that elections are in the hands of people and not corporate voices,” said Tester spokeswoman Marnee Banks.
Conservatives reject proposals to amend the Constitution out of hand, arguing that the Udall-Bennet measure is over-broad and would free Congress and the government to arbitrarily silence American citizens.
“If adopted, Sen. Udall’s constitutional amendment would help entrench those in Congress by insulating incumbent politicians from criticism and from granting members of Congress unprecedented power to regulate the speech of those they serve,” said David Keating, president of the Center for Competitive Politics, in a statement to the Senate Judiciary Committee last month.
But the movement to amend the Constitution has won some popularity outside the Beltway. On the day of the Hobby Lobby ruling, activists in California were celebrating the state Senate’s approval of a bill calling for a convention to amend the Constitution to get money out of politics.
“We feel like if we can win some victories here in California, the biggest state in the union, then it can be an example and give hope to people around the country,” said Kai Newkirk, co-founder of an anti-corruption group dubbed 99Rise. The group organized a 47-day march from Los Angeles to Sacramento, and is in the midst of a 24-hour “occupation” and vigil at the state capitol there.
The Hobby Lobby ruling hinges on religious freedom, not the First Amendment, but it has campaign finance implications, legal scholars say. The ruling challenges the traditional distinction between nonprofit and for-profit corporations, noted law professor Tamara Piety at the University of Tulsa. The administration had exempted religious nonprofit corporations from its contraception mandate, but not for-profit companies. The high court rejected that approach, saying tax-exempt and for-profit corporations must be treated the same.
“Not all corporations that decline to organize as nonprofits do so in order to maximize profit,” wrote Justice Samuel A. Alito Jr. in the court’s majority opinion. “For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.”
Religious advocacy groups are no doubt taking note. Abortion opponents not only rallied behind the Hobby Lobby challenge, but have led a series of successful legal challenges to the campaign finance laws, with the help of Indiana election lawyer James Bopp Jr., the general counsel of the National Right to Life Committee.
Senate Democrats’ remedy — to amend the Constitution — is a long shot at best. It would take either two-thirds of each house of Congress or two thirds of state legislatures to even propose such a fix, and three-fourths of the states to ratify it.
But the Hobby Lobby ruling further spotlights the growing treatment of corporations as people, said John Bonifaz, president of Free Speech for People, which promotes amending the Constitution to restrict campaign money: “I do think this case is a wake-up call to people who may have been looking at Citizens United solely as a campaign finance matter.”
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