Citizens United in Affordable Care Act Litigation, Part III

After my first two posts about the link between the Supreme Court's decision in Citizens United  and litigation under the Affordable Care Act, we have a third opinion from a federal circuit court.  The Sixth Circuit, in Autocam Corp. v. Sebelius (PDF), has rejected a First Amendment religious liberty challenge from manufacturing companies. It includes little discussion about Citizens United, but it does mention it.

Autocam’s attempt to fill this void by relying on freedom of speech cases, most notably Citizens United v. Federal Election Commission, is unavailing.  In Citizens United, the Court “recognized that First Amendment protection extends to corporations” and collected a significant number of cases recognizing this rule.  But these cases all arose under the Free Speech Clause. [citing the Third Circuit's opinion on this.] No analogous body of precedent exists with regard to the rights of secular, for-profit corporations under the Free Exercise Clause prior to the enactment of RFRA.  The Free Exercise Clause and Free Speech Clause of the First Amendment have historically been interpreted in very different ways. Id. (tracing the differences in the Court’s treatment of these clauses). Therefore, the Court’s recognition of rights for corporations like Autocam under the Free Speech Clause nearly twenty years after RFRA’s enactment does not require the conclusion that Autocam is a “person” that can exercise religion for purposes of RFRA.

 (some citations omitted)

It's curious that the Sixth Circuit includes the discussion of Citizens United , the First Amendment, and Free Exercise in its interpretation of whether a company is a "person" for purposes of the Religious Freedom Restoration Act. The statutory interpretation question is a fairly different matter than the scope of constitutional protection. I suppose, reading through a bit of the court's awkward analysis, one could argue that because there had been no precedent contemplating the kind of Free Exercise right anticipated in this case prior to Employment Division v. Smith, Congress did not contemplate that kind of right when it enacted RFRA.

Perhaps part of the court's awkward analysis arose because of a decision by the litigants.  Plaintiffs apparently only appealed a preliminary injunction denial on the RFRA claim and did not include a First Amendment claim in the appellate brief.

If that's the case, then the usefulness of Citizens United as analogy drops dramatically, which explains why the court's discussion is brief.

Citizens United in Affordable Care Act litigation, Part II

Following up on my earlier coverage of the 10th Circuit's opinion citing Citizens United v. Federal Election Commission, the 3d Circuit has concluded that Citizens United  does not compel a finding that a for-profit corporation can exercise religion. Here are excerpts from the majority's opinion (at Part IV.A):

Citizens United is thus grounded in the notion that the Court has a long history of protecting corporations' rights to free speech. 

... 

We must consider the history of the Free Exercise Clause and determine whether there is a similar history of courts providing free exercise protection to corporations. We conclude that there is not. In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.

(I interject here to remark that this line of reasoning does not strike me as terribly persuasive. First, there are numerous instances in which the absence of judicial precedent is not a justification for rejecting the argument of the parties. This distinction strikes me as too narrow a reading of Citizens United . It may be that the two are distinguishable, but absence of precedent is not among them. Second, by asserting that the corporation is "secular," it's hard to get around the conclusion that the majority opinion has, in circular fashion, presumed the conclusion.)

We are unable to determine that the "nature, history, and purpose" of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation--apart from its owners--can exercise religion. . . .

In urging us to hold that for-profit, secular corporations can exercise religion, Appellants, as well as the dissent, cite to cases in which courts have ruled in favor of free exercise claims advanced by religious organizations. See, e.g. , Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal ; Church of the Lukumi Babalu Aye, Inc. v. Hialeah . None of the cases relied on by the dissent involve secular, for-profit corporations. We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit secular corporations can exercise religion. As the Supreme Court recently noted, "the text of the First Amendment . . . givees special solicitude to the rights of religious organizations." Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC . That churches--as means by which individuals practice religion--have long enjoyed the protections of the Free Exercise Clause is not determinative of the question of whether for-profit, secular corporations should be granted these same protections.

(some citations omitted) 

(I interject again with two problematic point in this reasoning. First, the majority concludes that even though courts have recognized X, "[w]e will not draw the conclusion" that "it necessarily follows" that the courts will recognize Y. That may be true, but that does not explain why the two should be treated differently--except, as noted earlier, courts haven't done so previously, which is just restating a fact and is not a justification. Second, the majority does not claim that "churches" exercise religion, but that "churches" are a "means by which individuals practice religion"; but, in the paragraph before that, it claims that it "cannot understand how a for-profit, secular corporation--apart from its owners--can exercise religion." The distinction between whether members of a corporate form, whether a church or a for-profit corporation, can exercise religion within that corporate form is not readily explained in the majority's opinion, except that the church is the more common form for the exercise of religion.)

Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga. Conestoga "is a closely-held, family-owned firm, and [we] suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own." But, it is Conestoga that must provide the funds to comply with the Mandate—not the Hahns. We recognize that, as the sole shareholders of Conestoga, ultimately the corporation‘s profits will flow to the Hahns. But, "[t]he owners of an LLC or corporation, even a closely-held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so." "The fact that one person owns all of the stock does not make him and the corporation one and the same person, nor does he thereby become the owner of all the property of the corporation." The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold . . . that the free exercise claims of a company‘s owners cannot "pass through" to the corporation.

 (citations omitted)

(This holding is expressly contrary to the logic--but, admittedly, not the holding--articulated in Citizens United , where the majority concluded that the regulation, if allowed, "would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.") 

There are other excerpts, and a dissenting opinion addressing the matter, if you're interested in reading the whole 96-page opinion.

Citizens United in Affordable Care Act litigation

At PrawfsBlawg in January, I blogged about the Citizens United link to the Affordable Care Act litigation. I won't rehash that discussion, but I'll include the conclusion:

When it comes to for-profit corporations, however, there are hints (and this is my modest prediction) that the Court’s refusal to inquire into the purpose or form of the corporation in the election law context may very well apply to the religious liberties context. The burdens placed upon corporations are likely to face the same scrutiny, regardless of the purpose or the form of the corporation. And that means, businesses like Hobby Lobby, under the Court’s precedent in Citizens United, would be treated as any other individual, church, or non-profit organization making a Free Exercise claim. 

Today, the Tenth Circuit handed down an en banc opinion in Hobby Lobby Stores, Inc. v. Sebelius  (PDF). Here's the majority's discussion of "Corporate and For-Profit Free Exercise Rights" (V.A.2.b of the opinion), which ties Citizens United  and some other campaign finance cases in the Free Speech context into the Free Exercise context:

It is beyond question that associations—not just individuals—have Free Exercise rights: “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (emphasis added). Therefore, courts have “recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.” Id. at 618 (emphasis added); see also Citizens United v. FEC, 558 U.S. 310, 342–43 (2010) (“First Amendment protection extends to corporations . . . [, and the Court] has thus rejected the argument that . . . corporations or other associations should be treated differently under the First Amendment simply because such associations are not natural persons.” (internal quotation marks omitted)).

Accordingly, the Free Exercise Clause is not a “‘purely personal’ guarantee[] . . . unavailable to corporations and other organizations because the ‘historic function’ of the particular [constitutional] guarantee has been limited to the protection of individuals.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978). As should be obvious, the Free Exercise Clause at least extends to associations like churches—including those that incorporate. See, e.g., 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); see also Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 49 (1815) (Story, J.) (“[The] legislature may . . . enable all sects to accomplish the great objects of religion by giving them corporate rights for the manag[e]ment of their property, and the regulation of their temporal as well as spiritual concerns.”). 

Because Hobby Lobby and Mardel express themselves for religious purposes, the First Amendment logic of Citizens United, 558 U.S. at 342–55, where the Supreme Court has recognized a First Amendment right of for-profit corporations to express themselves for political purposes, applies as well. We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.

There are more citations in other opinions of other judges, if you're interested in reading. 

The IRS scandal and anonymity

​For all the discussion about the Internal Revenue Service scandal as it targeted Tea Party groups and others inappropriately, an item has struck me as one worthy of reflection: why the sudden interest in registering as a 501(c)(4) organization?

The answer: anonymity in political discourse.​

One striking feature about the response to ​the IRS scandal is the overwhelming call for more disclosure. But the proliferation of groups suggests that for many individuals--and their money--disclosure is not a preferred route.

The Supreme Court has had a complicated relationship with disclosure in the political context. Consider this robust statement in McIntyre v. Ohio Elections Commission​ (1995) (citations omitted):

​Writing for the Court, Justice Black noted that "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of political rhetoric, where "the identity of the speaker is an important component of many attempts to persuade," the most effective advocates have sometimes opted for anonymity. [T]he Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes.

​That kind of robust defense of anonymous political speech isn't very prevalent these days. From robust constitutionally-permissible disclosure requirements in the Bipartisan Campaign Reform Act of 2002, to President George W. Bush and Senators John Kerry and John McCain criticizing the "shadowy" 527 groups in the 2004 election, to today's call for further disclosure, "disclosure" is everywhere.

Disclosure, however, has two kinds of costs that are generally underdiscussed. The first is administrative. Smaller politically-oriented groups must comply ​with highly-detailed and specific regulations just as larger groups, but are less likely to be able to absorb the costs, or more likely to lack the sophistication that larger groups have. Perhaps that's a cost worth having, but it's one to recognize.

The second is about privacy and political persuasion. As McIntyre​ notes, there is a robust history of anonymous political discourse in the United States, and sometimes anonymity makes the message more​ persuasive. Disclosure removes that potential for persuasion. And it strips privacy away from the speaker.

Now, strictly speaking, donors to these 501(c)(4)s are not "speaking"; ​in the campaign finance they are contributing money to an organization, and some of the organization's funds are given to a political action committee, and much of that PAC's funds are used to promote a particular candidate. But we do know that "disclosure" in this context is designed to ferret out anonymous contributions to and affiliations with particular political causes--which might give us some pause.

So is anonymity in political speech a good thing? An important thing? Maybe not to the many commentators, but to the thousands of organizations and donors attempting to find some way around the numerous disclosure requirements elsewhere, there's great value in anonymity.​

Who's right? I'll look at some more about anonymity and political speech in the weeks to come.​

Pew survey of state election websites

I blogged earlier about the disconnect between what voters want from an election website and what states actually provide. A survey and accompanying series of infographics from Pew look at five things voters may want to access online: polling place lookup tool, registration status, absentee ballot status, provisional ballot status, and sample ballot.

To me, the most surprising fact is that just 25 states make a sample ballot online. In an age when long lines at the polling place are deemed a symptom of some larger problem, one would hope that simple things to speed up voters--like, perhaps, informing them well in advance about what will actually be on the ballot before they arrive at the polling place--would be at the forefront of solutions.

Indeed, Miami-Dade County in Florida had an extremely long ballot in the 2012 presidential election, including 12 constitutional amendments and 10 county questions, many of which had lengthy descriptions. The County moved to limit the number of items that could appear on the ballot; the state of Florida moved to limit the length of descriptions.

And while Florida does offer a sample ballot lookup tool, one solution for many states is to make this information available to voters as far in advance of the election as possible, especially in an easy-to-find online election database.

The basics of technology and voting

In an age when the debate about technology and elections looks at things like texting campaign contributions, or Internet voting, or online voter registration, it's perhaps worth thinking that for many localities, the debate is at a far more basic level. A fascinating study examines county websites and finds them sorely lacking in terms of what voters want.

The most shocking statistic (to me) is that almost one-third of counties lacked an ​elections website. And as elections are administered mostly at the local level, it's important to consider that, for all the abstract technological ideas we have for the future, there are still pretty basic technological hurdles that local jurisdictions need to overcome in the years ahead.