Posts Categorized: citizens united v. fec

By Brent Ferguson
Counsel, The Brennan Center for Justice
at NYU School of Law

Brent Ferguson

Intriguingly, last week’s Supreme Court argument over corporations’ claims of religious rights unfolded without any mention of the last blockbuster case to touch on corporate constitutional rights—Citizens United.  Yet whether and how the justices choose to incorporate the 2010 political speech case in resolving this term’s religious dispute will matter a great deal to the place of corporations in American society.

In last week’s consolidated cases, two companies, Hobby Lobby and Conestoga Wood Specialties—and their religiously devout owners—challenged the Affordable Care Act’s mandate that any employee health coverage they provide include access to certain forms of contraception.  Use of these contraceptives, they claim, is religiously objectionable, and providing access amounts to complicity in the contraceptives’ use.  The challengers argue that the coverage mandate therefore violates their right to freely exercise their religion under the federal Religious Freedom Restoration Act (RFRA) and under the First Amendment.

A key preliminary question is whether a for-profit corporation can exercise religion in the first place.  Can a legal entity created for economic benefit acquire the ability and right to worship?  The Supreme Court has never before answered this question directly.  In the Hobby Lobby case, however, a federal appeals court said that the highest court indirectly did, when in Citizens United it held that the First Amendment required lifting limits on corporate spending in political campaigns.  The lower court read Citizens United to be the sanctification of a corporate free speech right under the First Amendment, and reasoned that there was no sense in denying corporations a religious exercise right under the same amendment. Read more

By Abby Bar-Lev, AFJ Dorot Fellow

As Thanksgiving approaches, we here at AFJ know that it can sometimes be a struggle to spark interesting conversation with the extended family and family friends who  gather around the dinner table.  But what is the one sure crowd-pleasing conversation topic?  The Supreme Court, of course! (What else would you talk about?) So, to make the conversation a bit easier (if not a bit lighter), consider this post to be a “tip sheet” on what has been happening at the Supreme Court since the last big family gathering.  Go ahead, we dare you to not be the life of the party with these snippets in your conversational pocket!  No need to thank us; we can feel the gratitude.

Beginning with a Blockbuster:  In the Supreme Court’s very first week, it heard oral arguments in one of the year’s most divisive cases, McCutcheon v. FEC, a campaign finance reform case that challenges the constitutionality of aggregate individual campaign contributions.  Some are worried that McCutcheon represents a “sequel” to Citizens United, in which the Supreme Court decided that corporations have a First Amendment right to free speech in giving unlimited funds for independent spending in candidate elections.  Others draw a distinction between the two cases, arguing that there is a significant difference between the issue in Citizens United about limitations on independent campaign spending by corporations, and McCutcheon, which deals with direct individual aggregate contributions to campaigns and political committees.  The Supreme Court has not yet ruled on the case and probably will not do so until early summer, so all we can do now is guess.

Rights of the Accused:  The Supreme Court has already heard several cases this term involving defendants’ rights in criminal trials:

• In one of them, Burt v. Titlow, the Court has handed down a decision.  The issue in Titlow revolved around a defendant’s Sixth Amendment right to effective assistance of counsel.  In this case, the defendant had negotiated a plea deal with her attorney, then hired a new attorney.  That new attorney advised the defendant to withdraw her plea before investigating the case at all.  Consequently, the defendant received the longer prison sentence for murder rather than what would have been a shorter sentence with the originally-negotiated plea deal.  The Sixth Circuit found that the second attorney violated the defendant’s constitutional right to effective assistance of counsel.  The Supreme Court unanimously overruled the Sixth Circuit’s decision,  finding that the Sixth Circuit applied the wrong standard of review and improperly “assum[ed]” ineffectiveness from a fact record that did not support that claim.
• Earlier this month the Supreme Court heard oral arguments in Burrage v. United States, a case asking whether a defendant drug dealer can be sentenced to a mandatory minimum of 20 years for “causing” a customer’s death when it is inconclusive that the drug sold by the dealer was the “but-for” cause of the customer’s death.  In a guest blog post for AFJ, criminal defense attorney Steven Nolder argued that merely showing a drug contributed to an individual’s death—rather than proving that the drug sold to the customer actually caused the individual’s death beyond a reasonable doubt— should not be enough to sentence a defendant to a mandatory minimum 20 years in prison.  The Supreme Court has not yet reached a result in Burrage.
• The Supreme Court recently heard arguments in a Fourth Amendment warrantless search and seizure case.  That case, Fernandez v. California, tests the boundaries of law enforcement’s  ability to conduct warrantless searches of an individual’s home after that individual expressly objected.  Currently, if police ask to search someone’s home without a warrant, that individual may refuse to allow the police through the door.  However, a roommate may consent to the search if the individual (whom the police’s actions are targeting) is not at home at the time of the police’s request.  In Fernandez, the defendant did object to a police’s request to conduct a warrantless search of his home.  However, after Fernandez was later arrested, the police returned to his apartment asking to conduct a warrantless search, and Fernandez’s girlfriend allowed the police in to search the apartment.  Was Fernandez’s previous objection enough to ward off a future attempt by the police to search his home in his absence?  Or can police officers return to a home as many “reasonable” times as they want in hopes of finding the individual absent and a consenting roommate present?  If the Supreme Court decides the latter, it would create a powerful loophole for police to conduct warrantless searches of individuals’ homes.

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