Hobby Lobby, Corporations as people, and Free Association.


The Left is losing its shit this morning over HobbyLobby v. Sebilious, handed down by the SCOTUS.

You’ll hear various wild claims that with this decision the Christian Right is reducing women to mere chattel and all sorts of horror stories and what not.

Of course, the case at hand was not really about Hobby Lobby not wanting to be forced to provide abortoficient drugs to employees. It was whether or not a federal agency could arbitrarily rule that Hobby Lobby must do so. You do realize the employer mandate wasn’t in Obamacare, right? That it was strictly a rule promulgated by HHS?  And this compelling government interest in providing baby killing drugs was so compelling the HHS Secretary Sebilius exempted non-profit corporations and other entities as well as certain favored groups to the extent that 190 million Americans employers would not be forced to provide the coverage that the federal government insisted was constitutionally mandated for Hobby Lobby to provide?

The Obama administration has repeatedly gone before the Supreme Court to argue that the power of the federal government to compel the people to do things they don’t wish to do is both constitutional and proper. And with one notable exception, the Supreme Court has repeatedly slapped down the administration, often unanimously, and often harshly. The Administration continues to argue that the Constitution, a document designed explicitly to limit the power of the federal government, holds no limits on federal power. That the Supreme Court rightly disagrees is encouraging. That so many on the Left don’t is cause for despair.

Many on the Left will shriek “Corporations aren’t people!” as they have been doing since Citizens United was decided. Mind you, CU was the case where the Obama administration argued it had the right to ban books, specifically books that were political speech, the very speech the 1st Amendment was created to recognize as a natural right, beyond the scope of power of any legitimate government.

Back to “Corporations aren’t people!” as the rallying cry of the Left- Of course they aren’t. No serious constitutional argument has ever held that they are. Corporations are a legal recognition that multiple people gather together as an entity. For legal purposes, the resulting group is treated as an “artificial person” under the law. This is for liability, accounting, and taxation purposes. Of course, when the Left rails against corporations, they generally mean those organized as for-profit businesses. But that is hardly the only type of corporation. Virtually any group of two or more people can be organized as a corporation. Churches, unions, political groups, non-profit groups, charities and others are chartered as corporations.

The Left isn’t against corporations that support its agenda. Every time you hear the Left cry the end of democracy because of Hobby Lobby or Citizens United, remember that the New York Times is a corporation. The Left doesn’t want them silenced (even though the government argument in CU would have applied to them). The Left simply wants the government to have the power to selectively silence those views they oppose.

And the Left isn’t against people associating. They’re against people willingly associating, especially if those groups of people do not follow the Leftist agenda with the appropriate fervor.  A prime example is union membership.

In the comments of a piece on independent expenditures and political speech at WaPo, commenter Stephen Lathrop makes the argument that unions, having a “one man, one vote” method of control, are more democratic than corporations, which have a “one vote per share” arrangement:

At the very root of the question lies the challenge of defining “their own.” If “organizations” includes per-share voting commercial corporations, then “their own” typically refers to an overwhelming majority of people other than those making (and benefitting from) the decisions about which politics to support. For those among that group (potentially, and often actually, more numerous than those who choose the politics to spend their money on), calling what results politically “their own” choice is dishonest. 

At first, that seems a rather reasonable argument. You can read the entire comment thread to see more of Mr. Lathrop’s argument, and the rebuttals among the other commenters. Since I’m not a subscriber, I can’t comment there, hence the posting here. To wit, here is my response.

Corporations are entirely voluntary associations. No one forces you to purchase stock in a corporation. You probably own, indirectly through a retirement or savings plan, shares of a corporation, but you are not forced to participate. Let us take a hypothetical corporation that has 1000 shares of stock outstanding, of which you own one share, and another person hold the other 999 shares. A vote comes before the shareholder as to whether the corporation should pursue some course of action. You say no, the other holder says yes. Of course, that settles that. You have the option of either abiding by the vote, or you can sell your portion of the corporation to any willing buyer. That’s freedom of association, as guaranteed by the 1st Amendment.

But let us look at an employee union, say a teacher’s union in a state that leans liberal. With the notable exception of Wisconsin, most states mandate that teachers in public schools must join the union that represents them, or even worse, if they choose not to join the union, they must still pay union dues because they benefit from the collective bargaining done on their behalf. Nobody asks these individuals whether they agree with the bargaining done on their behalf. Some may even have strongly held beliefs against the very idea of collective bargaining. At any event, this is an example of forced association. You simply have no choice but to associate with others. Let us say that you are a teacher, and are compelled to belong to this teachers union. You are compelled to pay dues. You are allowed to vote on union business of course. But if your vote is among the minority, you have no practical recourse, short of losing your employment. And while theoretically you cannot be compelled to provide that portion of your union dues that go to political expenditures, in practice, you have no say in what politics your union supports. Not every teacher is a progressive leftist, but union political support almost universally is. So you see, your right to free association has been abrogated by the power of the state to compel your membership. That’s an affront to the 1st Amendment right to free association, which is as much about your right to not be a member of a group as it is to gather with others.

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