How to Get Rid of “Citizens United”

We can do away with it without a new Supreme Court. Nor do we need a constitutional amendment. There’s a far simpler way.

Friends,

Several of you responded to my “Sunday thought” yesterday by saying that the first step out of the mess we’re in is to get rid of the Supreme Court’s bonkers Citizens United v. Federal Election Commission decision of 2010, which held that corporations are people — entitled to the same First Amendment protection as the rest of us.

Corporate political spending was growing before Citizens United, but the decision opened the floodgates to the unlimited super PAC spending and undisclosed dark money we suffer from today.

Between 2008 and 2024, reported “independent” expenditures by outside groups exploded by more than 28-fold — from $144 million to $4.21 billion. Unreported money also skyrocketed, with dark money groups spending millions influencing the 2024 election.

Most people I talk with assume that the only way to stop corporate and dark money in American politics is either to wait for the Supreme Court to undo Citizens United (we could wait a very long time) or amend the U.S. Constitution (this is extraordinarily difficult).

But there’s another way! I want to tell you about it because there’s a good chance it will work.

It will be on the ballot next November in Montana. Maybe you can get it on the ballot in your state, too.

Here’s the thing: Individual states — either through their legislators or their citizens wielding ballot initiatives — have the authority to limit corporate political activity and dark money spending, because they determine what powers corporations have.

In American law, corporations are creatures of state laws. For more than two centuries, the power to define their form, limits, and privilege has belonged only to the states.

In fact, corporations have no powers at all until a state government grants them some. In the 1819 Supreme Court case Trustees of Dartmouth College v. Woodward, Chief Justice John Marshall established that:

“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence….The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration of the grant.”

States don’t have to grant corporations the power to spend in politics. In fact, they could decide not to give corporations that power.

This isn’t about corporate rights, as the Supreme Court determined in Citizens United. It’s about corporate powers.

When a state exercises its authority to define corporations as entities without the power to spend in politics, it will no longer be relevant whether corporations have a right to spend in politics — because without the power to do so, the right to do so has no meaning.

Delaware’s corporation code already declines to grant private foundations the power to spend in elections.

Importantly, a state that no longer grants its corporations the power to spend in elections also denies that power to corporations chartered in the other 49 states, if they wish to do business in that state.

All a state would need to do is enact a law with a provision something like this:

“Every corporation operating under the laws of this state has all the corporate powers it held previously, except that nothing in this statute grants or recognizes any power to engage in election activity or ballot-issue activity.”

Sound farfetched? Not at all.

In Montana, local organizers have drafted and submitted a constitutional initiative for voters to consider in 2026 — the first step in a movement built to spread nationwide. It would decline to grant to all corporations the power to spend in elections.

Called the Transparent Election Initiative, it wouldn’t overturn Citizens United — it would negate the consequences of Citizens United. (Click on the link and you’ll get the details.)

The argument is laid out in a paper that the Center for American Progress published several weeks ago. (Kudos to CAP and the paper’s author, Tom Moore, a senior fellow at CAP who previously served as counsel and chief of staff to a longtime member of the Federal Election Commission.)

Note to governors and state legislators: The Citizens United decision is enormously unpopular. Some 75 percent of Americans disapprove of it. But most of your governors and state legislators haven’t realized that you have the authority to make Citizens United irrelevant. My recommendation to you: Use that authority to rid the nation of Citizens United.

Hopefully, Montanans will lead the way.