Could Clarence Thomas Be Questioning Whether Citizens United Binds the States?

By Steve Klepper (Twitter: @MDAppeal)

One of the more surprising denials of certiorari this past term at the U.S. Supreme Court was in Iowa Right to Life Comm. v. Tooker. There, the Eighth Circuit, applying FEC v. Beaumont, 539 U.S. 146 (2003), upheld an Iowa law that bans direct corporate contributions to political campaigns but permits such contributions by unions. Over at the Election Law Blog, Rick Hasen noted that Beaumont’s days appear to be numbered under recent Supreme Court election law decisions, but he concluded Chief Justice Roberts “is playing the long game, not wanting to move quickly.”

I agree that Chief Justice Roberts is playing the long game, but it only takes four justices to grant certiorari. In Beaumont itself, Justices Kennedy (concurring in the judgment) and Justices Scalia and Thomas (dissenting) telegraphed a willingness to reexamine the ban on corporate giving in a future case. It’s difficult to see why Justice Alito, having since joined the Court, would hesitate to vote to grant review in Iowa Right to Life, particularly given Iowa’s differing treatment of unions and corporations.

Now let’s take a look at the end-of-term decision in Burwell v. Hobby Lobby. The result in Burwell was expected, but the rationale was somewhat surprising. The majority did not, as many expected, declare that corporations have religious rights under the Free Exercise Clause of the First Amendment. Rather, the Court ruled that closely held corporations are “persons” under the Religious Freedom Restoration Act. The Court conspicuously avoided the constitutional question.

Twice this past term, the Court avoided the question of the constitutional rights of corporations. Is there anything to draw from these decisions?

In a forthcoming article in the University of Pennsylvania Law Review, Professor Brandon Garrett urges the Court to resolve the persistent question of the degree of corporate personhood, and to do so by reference to Article III standing principles. For purposes of armchair speculation, however, I’d like to focus on page 18 and footnote 68 of that article:

Following Reconstruction, the Court … [held] that corporations are not citizens under the Privileges and Immunities Clause of the Fourteenth Amendment … Paul v. Virginia, 75 U.S. (8 Wall.) 168, 177 (1869) (“The term citizens … [as used in the Fourteenth Amendment] applies only to natural persons … not to artificial persons created by the legislature ….”). The Court had earlier held the same as to the Article IV Privileges and Immunities Clauses. See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 586–87 (1839).

By contrast, as Garrett points out, corporations do have rights under the Equal Protection Clause and Due Process Clause of the 14th Amendment. For eight of out nine justices, whether corporations have rights under the Privileges and Immunities Clause is (as I will explain) a largely moot point. For Justice Clarence Thomas, however, the distinction is potentially huge.

In my November post, “Clarence Thomas, Facebook Justice,” I wrote that the perception of Justice Thomas often is a (statistically wrong) caricature. He is fiercely independent, and his frequent solo concurrences and dissents provide the public a clear view of his iconoclastic jurisprudence.

Thomas is the only sitting justice who is on the record as agreeing with the view, expressed by progressive groups such as the Constitutional Accountability Center, that the Supreme Court should overrule its 1870s and 1880s decisions gutting the Privileges and Immunities Clause of the 14th Amendment, including The Slaughter-House Cases, 83 U.S. 36 (1873), United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886).

Thomas expressed that view in his solo concurrence in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), which applied the Second Amendment to the states. The petitioner’s brief in McDonald adopted a bold strategy (pp. 42-65), urging the Court to overrule The Slaughter-House Cases,Cruikshank, and Presser, and to hold that the Bill of Rights applies to the states by virtue of the 14th Amendment’s provision that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]” Only in the alternative (pp. 66-72) did the petitioner invoke the Supreme Court’s authorities incorporating certain protections of the Bill of Rights through the 14th Amendment’s provision that “nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Justice Alito, joined by Chief Justice Roberts and Justices Kennedy and Scalia, saw “no need to reconsider” the Court’s 19th century opinions: “For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.” McDonald, 130 S. Ct. at 3030-31. Instead, Justice Alito’s opinion applied the Second Amendment to the states through the Due Process Clause.

Justice Thomas, in a solo concurrence, wrote that he “cannot agree that [the right to bear arms] is enforceable against the States through a clause that speaks only to ‘process.’ Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.” McDonald, 130 S. Ct. at 3059 (Thomas, J., concurring). Justice Thomas meticulously laid out the historical case that the Fourteenth Amendment’s Privileges and Immunities Clause was intended to incorporate the Bill of Rights. He pilloried the notion that the Due Process Clause (controlling the means by which life, liberty, or property can be taken away) defines the substance of citizens’ rights.

McDonald did not, of course, involve corporations or campaign contributions. But Justice Thomas’ solo rationale presents a problem for corporate rights under state law. If the Privileges and Immunities Clause is the mechanism by which the Bill of Rights binds the States, as Justice Thomas believes, then, under Paul v. Virginia, a corporation has no First Amendment rights against state law.

Of course, Justice Thomas – as his McDonald concurrence itself shows – would not hesitate to depart from Paul v. Virginia if he thought the decision was wrong. But it’s hard to see him disagreeing with that precedent. Section 1 of the 14th Amendment has four distinct clauses:

[1] All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

[2] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

[3] nor shall any State deprive any person of life, liberty, or property, without due process of law;

[4] nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis added.)

Clauses 1 and 2 refer to “citizens,” while Clauses 3 and 4 refer to “persons.” Thus, if a corporation is a “person,” as Justice Thomas accepts, a state cannot deprive a corporation of life, liberty, or property, without due process of law, nor can it deny a corporation the equal protection of the laws. But Clause 2 privileges and immunities belong exclusively to “citizens of the United States,” which Clause 1 defines as “[a]ll persons born or naturalized in the United States.” A corporation is incorporated, not born or naturalized.

Original understanding at the time of ratification backs this textual conclusion. At the time of the ratification of the 14th Amendment, Bank of Augusta established that a corporation, though a “person” for some constitutional purposes, was not a citizen for purposes of the separate Privileges and Immunities Clause appearing at Article IV of the Constitution.

Both as a matter of history and text, therefore, a corporation is not a “citizen” for purposes of the 14th Amendment’s Privileges and Immunities Clause. And if that clause was the mechanism for incorporating the Bill of Rights against the states, as Justice Thomas alone concluded in McDonald, corporations would not enjoy any First Amendment rights against state action.

By that logic, Citizens United v. FEC, 130 S. Ct. 876 (2010), which struck down a federal law prohibiting “corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an ‘electioneering communication’ or for speech expressly advocating the election or defeat of a candidate,” would not apply to similar state laws.

I see three significant rejoinders, which I address in turn.

First, Justice Thomas joined the per curiam majority decision in Am. Tradition P’ship v. Bullock, 132 S. Ct. 2490 (2012), which summarily struck down a Montana law holding that a “corporation may not make … an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” Mont. Code Ann. § 13-35-227(1) (2011). A four-justice dissent agreed with Montana that “[g]iven the history and political landscape in Montana … the State had a compelling interest in limiting independent expenditures by corporations,” but the majority held that “Montana’s arguments … either were already rejected in Citizens United, or fail to meaningfully distinguish that case.” Id.

If he believed that a state did “meaningfully distinguish” Citizens United, would Justice Thomas feel obligated to follow his vote to strike down Montana’s law? Nope. For instance, in Peugh v. United States, 133 S. Ct. 2072 (2013), Justice Thomas dissented from the majority’s application of the ex post facto test articulated in Calif. Dep’t of Corr. v. Morales, 514 U.S. 499 (1995), and he concluded that his own majority opinion in Morales should be overturned as “unworkable.” He explained in a footnote: “As the author of Morales, failure to apply the original meaning [of the ex post facto clause] was an error to which I succumbed.” Id. at 2093 n.*. If Justice Thomas decides that one of his votes or opinions was wrong, he will not hesitate to abandon it.

Second, would Justice Thomas allow an important right to turn on fine points of textualism? Absolutely. In his concurrence in Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002), Justice Thomas began by observing that the “Establishment Clause of the First Amendment states that ‘Congress shall make no law respecting an establishment of religion.’ On its face, this provision places no limit on the States with regard to religion.” From there, he concluded that, based on the structure and history of the 14th Amendment, “in the context of the Establishment Clause, it may well be that state action should be evaluated on different terms than similar action by the Federal Government.” It does not offend Justice Thomas’ jurisprudence, therefore, for a textual analysis to result in the First Amendment providing differing protections against federal and state action.

Third, I can expect a cynical response that Justice Thomas, being the most full-throated opponent of campaign finance laws, couldn’t bring himself to soften the reach of Citizens United. If you doubt that Justice Thomas will allow his iconoclastic constitutional beliefs to lead him to unexpected places, you and I must agree to disagree.

Returning to the rhetorical question in this post’s title: What if Justice Thomas, at some point in the past term, recognized what his McDonald concurrence means for state law? It’s highly plausible that Justice Thomas, in reviewing the briefs and bench memoranda in Hobby Lobby or Iowa Right to Life, spotted the issue. Maybe Justice Thomas – or one or more fellow conservatives on the Court – doesn’t want to reach questions of corporate personhood right now.

My theory doesn’t fully explain Hobby Lobby, which involved a federal mandate, not a state mandate. But, if Justice Thomas is questioning the scope of corporate constitutional rights, it wouldn’t be surprising if other conservatives wanted to leave the question alone for now.

Of course, my theory is speculative. But so is the “Roberts long game” theory or any other explanation for the Court’s recent avoidance of questions of corporate constitutional rights. Justice Thomas has the most well-defined jurisprudence of any current justice, and a careful review of his McDonald concurrence provides grounds for an educated guess regarding a mystery from this past term.