Identity and Incorporation in Citizens United and Hobby Lobby

By Leo Coleman, Ohio State University

Citizens United and Hobby Lobby have been two of the most controversial decisions of the Supreme Court in recent years. Despite differences, they both raised the question of whether, and how, constitutional rights and legal protections may be claimed by corporations. Citizens United involved a First Amendment challenge to restrictions on corporate expenditures in political campaigns by a conservative interest group, while Hobby Lobby concerned a religious objection by the owners of two private companies to the Affordable Care Act’s contraceptive mandate for employer-provided health coverage. What made these cases controversial was the fact that the conservative majority on the Court appeared to grant constitutional rights to corporations—rights to speech and free exercise of religion—on the same basis on which individual men and women hold and exercise these rights. Activist critics of Citizens United have, accordingly, coalesced under the slogan “corporations are not people.” However, as a legal matter “corporate personhood” as such has not been in question in these cases, nor do these cases present simple contrasts between individuals and corporations.

In a forthcoming article in PoLAR (November 2014), I offer a close reading and analysis Citizens United, in the wider ethnographic context of activist political reaction to the decision, to explore how questions of personhood are, rhetorically if not legally, raised and resolved in particular ways in the case. I focus on the majority decision’s key principle that the “identity of the speaker” is no basis for regulation of political speech. I argue that this principle—on first sight a blind formalism—implicitly draws on and transforms a longer American lineage of claims about identity and rights, from the civil rights movement to identity politics, and in the process reinforces a wider cultural shift in common conceptions of personhood and in how agency is distributed between persons. I would like to expand this reading to incorporate Hobby Lobby, which on its face presents different legal concerns, to indicate how such an anthropological reading of judicial decisions might contribute to more formal legal analysis and activist critique alike, in particular by linking into one coherent strand of cultural and political argument the judicial reasoning of technically-different cases.

Justice Kennedy’s majority opinion in Citizens United rests on a long chain of precedent in holding that the identity of the speaker is no basis for making distinctions in law, but what is significant and novel in the decision is that Kennedy also situates corporate identity as a kind of public agency deserving special protections. Kennedy argues explicitly that corporations are specially authoritative speakers about the interests their identity implicates, and in his reasoning a corporation’s expenditures on campaigns earn protection not regardless of, but because of their special ability to aggregate money and agency. Corporations, he writes, have the voices that “represent the most significant segments of the economy” (a line Justice Kennedy quotes from an earlier dissent by Justice Scalia). Further, as I detail in my article, Kennedy’s decision draws from a neoliberal account of personhood and agency to make this kind of public agency and aggregation of money and power an equivalence, not a difference, between natural persons and corporations. Corporations are presented, in this account, as extensions of the individuals whose agency is distributed within their formal, legal structures, and individuals reciprocally share in this corporate identity, and benefit from its presence in the public sphere.

Hobby Lobby, through its argumentation about the interests and actions of the owners of closely-held corporations, links personal identity to incorporation even more strongly and directly than Citizens United. Justice Alito uses corporate-board resolutions, mission statements, and policies to tie the business activities of two private corporations to the personal religious convictions of their owners. Ultimately, Alito finds that the bodies of employees and the actions of corporate officers all implicate and extend the personhood and conscience of the owners, hinting that this corporate personhood and distributed agency implicates and expresses the personhood of the owners in ways superior to the merely individual agency and identity of corporate employees.

By way of contrast, we might note that in the oral arguments for Citizens United then Solicitor General Elena Kagan explicitly appealed to the individual rights of employees and shareholders, who might disagree with the corporate political speech enabled by their labor and money, to buttress existing restrictions on corporate political expenditures. Chief Justice Roberts was quick to parry this justification for regulation, noting that the Court had only ever allowed regulation of campaign finance based on the government’s interest in restraining corruption or its appearance. The Court could not, and would not, reach any consideration of the personal rights of individuals “inside” corporations. Ultimately, however, Kennedy’s decision transformed this limitation into a virtue, a principled judicial refusal to impugn the identity of corporations as speakers, along with an explicit claim that corporate aggregations of money were no more “distorting” than any other political aggregation of individual powers—electoral, representative, or otherwise. In Hobby Lobby, however, Alito goes out of his way to stipulate that it is not the rights of corporations as such that are being protected by their constitutional claims, but those of the people who are “inside” them. In both cases, a literal reading of “person” and the novelty of “corporate identity” ultimately results in treating people as corporations—with divided interests, distributed public roles, and plural sites of becoming, no one of which is finally more real than any other—rather than corporations as persons.

In an old decision of the DC Court of Appeals upholding campaign finance law, one that was overturned in 1976 by the Supreme Court’s narrower ruling in Buckley v. Valeo, the lower court judges had written: “It would be strange indeed if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money.” With these two decisions, the Roberts Court has achieved just such an extrapolation of substantial, individual personhood into the corporate form, and have extended the cloak of constitutional protection to this new legal identity in the public sphere. As I write in PoLAR, “Where once [it was thought necessary] to protect the rights of individuals inside corporations, now the Court recognizes the identity of corporations . . . ratifying a long-term cultural project of construing real people as more and more like corporations, and reconstructing this corporate personhood as the basis of citizenship.”

In sum, these judicial arguments do institute new personhood claims and distribute rights between unequally located actors, even if the Justices themselves do not explicitly broach how corporations are persons but merely assert that they are. Moreover, the activists and political critics who object to the extension of personhood to corporations have the pertinent challenge exactly backward. To overturn the logic of Citizens United, instead of arguing that “corporations are not people,” we might have to stress instead the more counterintuitive point that, when it comes to citizenship, people are not corporations.

Contributing Editors’ Note: This column by APLA Section News co-editor Leo Coleman is the first in a new series, “Legal Concerns,” part of wider initiatives by APLA to broaden our audience and bridge the gap between anthropological debates and legal arguments. We often interact with—or, indeed, act as—lawyers, judges, regulators, and other legal specialists in the course of our research, and we seek to create forums for creating and continuing such conversations between the many different perspectives on law. Thus, APLA has sponsored a Collaborative Research Network for “Law and Ethnography” within the Law and Society Association—look out for panels organized by the CRN at the 2015 LSA meetings! There will also be an off-site salon at the upcoming AAA meeting to publicize our journal, PoLAR: The Political and Legal Anthropology Review. “Legal Concerns” columns will highlight and contribute to these outreach efforts, reporting on collaborations between legal anthropologists and other legal specialists, or reflecting on the intermingling of legal and anthropological analyses in relation to current events or hot topics of legal debate. Please send proposals for the series and ideas for future columns to the contributing editors, Leo Coleman at Coleman.514@osu.edu and Allison Fish at aefish@ucdavis.edu.

About Jennifer Curtis

Jennifer Curtis is an Honorary Fellow in Social Anthropology at the University of Edinburgh: http://www.sps.ed.ac.uk/staff/social_anthropology/curtis_jennifer.

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