Elizabeth Pollman:
One of the most notable trends of the Roberts Court is expanding corporate rights and narrowing liability or access to justice against corporate defendants. Citizens United and Hobby Lobby are the most well-known cases in this vein, but they are not alone. In the last Term, the Court heard cases on important issues ranging from the constitutionality of nonprofit donor disclosure regulation to human rights in global supply chains.
In a Comment in the Harvard Law Review, I examine a variety of recent Supreme Court cases through the lens of corporations to highlight this “pro-business” pattern as well as its contradictory relationship with counter trends in corporate law and governance. Two cases deserve particular attention: Americans for Prosperity Foundation v. Bonta and Nestlé USA, Inc. v. Doe.
In Americans for Prosperity, the Court endorsed a robust understanding of the First Amendment right to freedom of association for nonprofit corporations and other charitable organizations. In a splintered majority opinion, the Court held that a California regulation unconstitutionally burdened associational rights by requiring organizations to disclose their Schedule B to Form 990, containing information about major donors, to the state’s Attorney General’s Office for potential investigation into fraud and other wrongdoing. Notably, the Court broadly invalidated the state regulation and did not provide an in-depth examination of the interests, associational dynamics, or evidence of threats or chilling effects on organizations besides the litigants.
The Court arrived at its ruling by applying a narrow tailoring requirement to the standard of “exacting scrutiny.” Instead of focusing on the range of nonprofit organizations and the potential significance of their burdens, the Court justified invalidating the law on a facial challenge because of its view of the regulation — that the state’s investigative goals were merely for “administrative convenience” and not narrowly tailored. The Court’s willingness to strike down the regulation and raise the bar on the exacting scrutiny standard suggests that campaign finance regulations and other compelled disclosure regimes may be threatened in the future….