Usha Rodrigues has announced that the Conglomerate Blog is hosting a Hobby Lobby symposium next week. I've been invited to sit in and doubtless will. I understand my friend Wharton Professor Eric Orts will also be commenting. As I mentioned in an earlier post, I have been reading Eric's new book, Business Persons: A Legal Theory of the Firm
- The majority opinion lacks "a full-fledged legal theory to explain why business corporations should have a right of political free speech ...." (241)
- Justice Steven's dissent likewise "does not dig very deeply into a theory of corporate personality either." (241)
- Justice Scalia's concurrence makes a strong case "that some First amendment protection for political speech must extend to organizations, including business firms, given that people compose firms." (244)
- Neither absolutist position--corporations have no rights versus corporations have rights of natural persons--makes sense. You have to decide these issues on a case by case, clause by clause basis. (245)
Orts concludes with an extended argument that the appropriate compromise is one of "full disclosure about business participation in politics." (250).
Although I might quibble with minor points here and there, the gist of Eric's argument strikes me as being exactly right and I'm in full agreement with his conclusion.
Hence, I'll be very interested to see what Eric makes of the Hobby Lobby case. Will he support a disclosure-based compromise on the free exercise claim? (Note that Joan Heminway thinks disclosure is the solution.) if so, how would a dislcosure regime work given that most (all?) of the companies that will be able to and likely to claim exemptions under Hobby Lobby likely will be non-reporting companies. To whom and how would they disclose?
