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Connecting Hobby Lobby, Harris and Citizens United

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The conservative ideology underlying the decisions of the Roberts court can be summed up in the title of Prof. Adam Winkler's post on Huffpo: Corporations are People and They Have More Rights Than You.  

In my first day of property law, the professor gave us a hypothetical that ran something like this:  "Jane works at a widget factory.  After a day's work she tenders to her employer the fair value of raw materials and the rent for the use of the space and tools.  Then she collects all the widgets that she made that day and takes them with her.  Does anyone see a problem with that?"  Of course, hands shot up saying that she was stealing, but the professor pointed out that she paid for everything that she used.  It's only when you start out with the assumption that the owners of capital deserve all of the return that they can get that you have a problem.  And that is the basic assumption of the majority of the Roberts court and the Republican Party.

In Citizens United, there is an underlying assumption that the owners of a business should be free to do whatever they want with their profits.  But when business entities were first created, their powers were strictly delimited in their charters.  Nowadays, after years of a race to the bottom lead by Delaware, those charters typically allow juridical persons to pursue any lawful purpose, whether or not it has anything to do with the core business. And the Supreme Court helpfully cleared away any legal restrictions on their political spending.  But this means that the owners are the only stakeholders who get to call the shots, and their decisions are taken on an inherently undemocratic one-dollar-one-vote basis rather than on the basis of one shareholder  one vote.  And of course the employees have no say whatsoever.

Hobby Lobby allows the putative religious values of a small group of owners to trump the individual rights of employees and the legislative values of the majority of citizens as enacted by their legislators. (To be sure, the holding is based on another piece of legislation,Religious Freedom Restoration Act, rather than the First Amendment, but the Court went through legal contortions to make sure that the RFRA trumped the ACA.)

In both Citizens United and Hobby Lobby, employees whose contributions are necessary to the success of the enterprise have no say whatsoever, either as employees or as citizens, in how the enterprise chooses to exercise political power outside scope of its business.  But under Harris, when a majority of employees votes to be represented by a union, suddenly anyone who didn't vote for the union gets a free ride on the union's efforts on their behalf.

The bottom line is that, from the perspective of the Supreme Court and the Republican Party, the only legitimate power is that of the owners.  The rest of us are just another expendable resource for use in the profit machine.


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