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New research: Citizens United Can Be Made Irrelevant Via Changes To State Corporation Law
Last edited Mon Sep 22, 2025, 09:04 AM - Edit history (2)
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🔹 Full report
🔹 This is the regular deep dive (20:06) Audio Summary
🔹 This is the brief version if you can't even spend that long (1:49) Executive Audio Summary
Here are the summary quotes that provide the basic context of the argument:
Justice Byron White's dissent 1986 SCOTUS Bowers v. Hardwick:
"The state need not let it's own creation consume it."
🔸 Corporate rights: ➪ Courts Protect
🔸 Corporate powers: ➪States Grant
==================================================
Analysis:
Fifteen years after Citizens United opened the floodgates of corporate and dark money, the Center for American Progress has figured out how to slam them back shut.
On Monday, CAP released "The Corporate Power Reset That Makes Citizens United Irrelevant"
This groundbreaking plan is the first challenge to Citizens United with a strong chance of surviving legal review. It rests on bedrock constitutional and corporate law—and every state in America can act on it right now. Montana is already moving forward as the test case
Here’s the move: Corporations are creatures of state law. They start with zero powers, and states choose which powers to grant. When a state rewrites its corporation laws to no longer grant the power to spend in politics, that power simply does not exist. And without the power, there’s no right to protect.
The result is sweeping: No corporate or dark money in ballot measures, local races, state elections—or even federal elections within the state.
What seems to have happened is 100 years ago, states gave corps every power to do everything legal under the law, not dreaming that that would mean unlimited spending in elections. When 2010 and Citizens United rolled around, SCOTUS said, well, spending in politics is legal, so that must be on the list of powers given to corps when they gave them the power to do anything legal. And if they have the power to do it, they have the right to do it.
This whole effort says: Um, no. That was never meant to be on the list of powers we handed our corps, and to be extra clear about it this time, so you don’t screw this up again, we’re going to pass legislation that makes absolutely clear that that political-spending power is NOT on the list of powers we give out corporations.
This doesn’t overturn Citizens United or violate it. It just clearly creates a new kind of corporation – the kind states thought they were creating all along – that does not have the power to spend in politics.
Two more quick points:
Supremacy Clause: we’re not regulating a right; we’re defining the corporate vehicle so it doesn’t include that power. Rights protect an existing power. If the state never grants that power to its corporations, there’s no right to attach to. People and PACs still speak.
Foreign corporations: states already say an out-of-state company can’t exercise any power in the state that a local corporation doesn’t have. So Delaware/Wyoming/Nevada charters don’t create a loophole inside the state that adopts this.
This whole effort says: Um, no. That was never meant to be on the list of powers we handed our corps, and to be extra clear about it this time, so you don’t screw this up again, we’re going to pass legislation that makes absolutely clear that that political-spending power is NOT on the list of powers we give out corporations.
This doesn’t overturn Citizens United or violate it. It just clearly creates a new kind of corporation – the kind states thought they were creating all along – that does not have the power to spend in politics.
Two more quick points:
Supremacy Clause: we’re not regulating a right; we’re defining the corporate vehicle so it doesn’t include that power. Rights protect an existing power. If the state never grants that power to its corporations, there’s no right to attach to. People and PACs still speak.
Foreign corporations: states already say an out-of-state company can’t exercise any power in the state that a local corporation doesn’t have. So Delaware/Wyoming/Nevada charters don’t create a loophole inside the state that adopts this.
Further discussion with the author at reddit/r/law
65 replies
= new reply since forum marked as read
= new reply since forum marked as read
They're just rolling out this effort this week.
They're looking for people and institutions who would be willing to champion the effort, either through a ballot initiative or through the legislature.
Google around, ask around and let 'em know what you learn!
Tom Moore can be contacted at tmoore@americanprogress.org.
Happy Sunday to ya, and here's to the return of reason's rule!!
Here are the summary quotes that provide the basic context of the argument:
Justice Byron White's dissent 1986 SCOTUS Bowers v. Hardwick:
🔸 Corporate rights: ➪ Courts Protect
🔸 Corporate powers: ➪States Grant
=================================================
Here’s the move: Corporations are creatures of state law. They start with zero powers, and states choose which powers to grant. When a state rewrites its corporation laws to no longer grant the power to spend in politics, that power simply does not exist. And without the power, there’s no right to protect.
Happy Sunday y'all!
Justice Byron White's dissent 1986 SCOTUS Bowers v. Hardwick:
"The state need not let it's own creation consume it."
🔸 Corporate rights: ➪ Courts Protect
🔸 Corporate powers: ➪States Grant
=================================================
Here’s the move: Corporations are creatures of state law. They start with zero powers, and states choose which powers to grant. When a state rewrites its corporation laws to no longer grant the power to spend in politics, that power simply does not exist. And without the power, there’s no right to protect.
Happy Sunday y'all!
"Corporations are pure creatures of law; they do not exist without law and have zero powers until a government grants them some."
Though the Supreme Court did not use these exact terms, Citizens United centered on the ability of government to regulate the right of corporations to exercise powers of political speech that the state had granted them. When the court wrote,
And because Citizens United was an entity to which Virginia had granted the power to spend in elections, the court found that Citizens United was an entity that had the right to spend in elections. Had Citizens United shown up in court as an entity to which Virginia had not given the power to spend in elections, the analysis would have to have been quite different.
A footnote in Citizens United itself underscores that the First Amendment comes into play only after a state chooses to grant corporations the power to engage in political spending. In his concurrence, Justice Scalia dismissed as irrelevant the dissent’s claim that the common law was generally interpreted as prohibiting corporate political spending: “Of course even if the common law was ‘generally interpreted’ to prohibit corporate political expenditures as ultra vires [beyond its authority and therefore void], that would have nothing to do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be suppressed.”26 The necessary inverse is clear: When the state does withhold that power, it may treat any corporate political spending as unauthorized and void without triggering First Amendment scrutiny.
Think of it this way: Humans are born with the inherent power to live freely, pursue happiness, and shape their destiny. But they have not been granted the power to fly. Birds have, bats, pterodactyls—but not humans. It is useless to discuss whether humans have a right to fly, because without the power to do so, the right to do so has no meaning. Even if the Supreme Court decreed that humans had a constitutional right to fly, there is no amount of arm flapping that would result in humans taking to the skies, because they would still lack that ability. This lack of power to fly could not be held to infringe on the right to fly that the Supreme Court had recognized. It is simply an underlying reality that no court—not even the Supreme Court—can touch.
Likewise, when a state exercises its authority to define corporations as entities without the power to spend in politics, it will no longer be relevant to discuss whether the corporations have a right to spend in politics, because without the power to do so, the right to do so has no meaning.
Every scrap of corporate speech jurisprudence centers on rights and the authority of government to regulate them—and courts have consistently held that authority to be sharply circumscribed. The jurisprudence regarding states’ authority to grant powers to the corporations they create is entirely separate, and for more than a century, courts have consistently held that power-granting authority to be all but absolute.
Though the Supreme Court did not use these exact terms, Citizens United centered on the ability of government to regulate the right of corporations to exercise powers of political speech that the state had granted them. When the court wrote,
“Citizens United is a nonprofit corporation,”25 it was a bit of shorthand. The long version is: Citizens United is a nonprofit corporation to which the Commonwealth of Virginia has granted the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, among them (since Virginia law does not specify otherwise), the power to spend independently in candidate elections.
And because Citizens United was an entity to which Virginia had granted the power to spend in elections, the court found that Citizens United was an entity that had the right to spend in elections. Had Citizens United shown up in court as an entity to which Virginia had not given the power to spend in elections, the analysis would have to have been quite different.
A footnote in Citizens United itself underscores that the First Amendment comes into play only after a state chooses to grant corporations the power to engage in political spending. In his concurrence, Justice Scalia dismissed as irrelevant the dissent’s claim that the common law was generally interpreted as prohibiting corporate political spending: “Of course even if the common law was ‘generally interpreted’ to prohibit corporate political expenditures as ultra vires [beyond its authority and therefore void], that would have nothing to do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be suppressed.”26 The necessary inverse is clear: When the state does withhold that power, it may treat any corporate political spending as unauthorized and void without triggering First Amendment scrutiny.
Think of it this way: Humans are born with the inherent power to live freely, pursue happiness, and shape their destiny. But they have not been granted the power to fly. Birds have, bats, pterodactyls—but not humans. It is useless to discuss whether humans have a right to fly, because without the power to do so, the right to do so has no meaning. Even if the Supreme Court decreed that humans had a constitutional right to fly, there is no amount of arm flapping that would result in humans taking to the skies, because they would still lack that ability. This lack of power to fly could not be held to infringe on the right to fly that the Supreme Court had recognized. It is simply an underlying reality that no court—not even the Supreme Court—can touch.
Likewise, when a state exercises its authority to define corporations as entities without the power to spend in politics, it will no longer be relevant to discuss whether the corporations have a right to spend in politics, because without the power to do so, the right to do so has no meaning.
Every scrap of corporate speech jurisprudence centers on rights and the authority of government to regulate them—and courts have consistently held that authority to be sharply circumscribed. The jurisprudence regarding states’ authority to grant powers to the corporations they create is entirely separate, and for more than a century, courts have consistently held that power-granting authority to be all but absolute.
"Corporations are pure creatures of law; they do not exist without law and have zero powers until a government grants them some."
Though the Supreme Court did not use these exact terms, Citizens United centered on the ability of government to regulate the right of corporations to exercise powers of political speech that the state had granted them. When the court wrote,
And because Citizens United was an entity to which Virginia had granted the power to spend in elections, the court found that Citizens United was an entity that had the right to spend in elections. Had Citizens United shown up in court as an entity to which Virginia had not given the power to spend in elections, the analysis would have to have been quite different.
A footnote in Citizens United itself underscores that the First Amendment comes into play only after a state chooses to grant corporations the power to engage in political spending. In his concurrence, Justice Scalia dismissed as irrelevant the dissent’s claim that the common law was generally interpreted as prohibiting corporate political spending: “Of course even if the common law was ‘generally interpreted’ to prohibit corporate political expenditures as ultra vires [beyond its authority and therefore void], that would have nothing to do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be suppressed.”26 The necessary inverse is clear: When the state does withhold that power, it may treat any corporate political spending as unauthorized and void without triggering First Amendment scrutiny.
Think of it this way: Humans are born with the inherent power to live freely, pursue happiness, and shape their destiny. But they have not been granted the power to fly. Birds have, bats, pterodactyls—but not humans. It is useless to discuss whether humans have a right to fly, because without the power to do so, the right to do so has no meaning. Even if the Supreme Court decreed that humans had a constitutional right to fly, there is no amount of arm flapping that would result in humans taking to the skies, because they would still lack that ability. This lack of power to fly could not be held to infringe on the right to fly that the Supreme Court had recognized. It is simply an underlying reality that no court—not even the Supreme Court—can touch.
Likewise, when a state exercises its authority to define corporations as entities without the power to spend in politics, it will no longer be relevant to discuss whether the corporations have a right to spend in politics, because without the power to do so, the right to do so has no meaning.
Every scrap of corporate speech jurisprudence centers on rights and the authority of government to regulate them—and courts have consistently held that authority to be sharply circumscribed. The jurisprudence regarding states’ authority to grant powers to the corporations they create is entirely separate, and for more than a century, courts have consistently held that power-granting authority to be all but absolute.
Though the Supreme Court did not use these exact terms, Citizens United centered on the ability of government to regulate the right of corporations to exercise powers of political speech that the state had granted them. When the court wrote,
“Citizens United is a nonprofit corporation,”25 it was a bit of shorthand. The long version is: Citizens United is a nonprofit corporation to which the Commonwealth of Virginia has granted the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, among them (since Virginia law does not specify otherwise), the power to spend independently in candidate elections.
And because Citizens United was an entity to which Virginia had granted the power to spend in elections, the court found that Citizens United was an entity that had the right to spend in elections. Had Citizens United shown up in court as an entity to which Virginia had not given the power to spend in elections, the analysis would have to have been quite different.
A footnote in Citizens United itself underscores that the First Amendment comes into play only after a state chooses to grant corporations the power to engage in political spending. In his concurrence, Justice Scalia dismissed as irrelevant the dissent’s claim that the common law was generally interpreted as prohibiting corporate political spending: “Of course even if the common law was ‘generally interpreted’ to prohibit corporate political expenditures as ultra vires [beyond its authority and therefore void], that would have nothing to do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be suppressed.”26 The necessary inverse is clear: When the state does withhold that power, it may treat any corporate political spending as unauthorized and void without triggering First Amendment scrutiny.
Think of it this way: Humans are born with the inherent power to live freely, pursue happiness, and shape their destiny. But they have not been granted the power to fly. Birds have, bats, pterodactyls—but not humans. It is useless to discuss whether humans have a right to fly, because without the power to do so, the right to do so has no meaning. Even if the Supreme Court decreed that humans had a constitutional right to fly, there is no amount of arm flapping that would result in humans taking to the skies, because they would still lack that ability. This lack of power to fly could not be held to infringe on the right to fly that the Supreme Court had recognized. It is simply an underlying reality that no court—not even the Supreme Court—can touch.
Likewise, when a state exercises its authority to define corporations as entities without the power to spend in politics, it will no longer be relevant to discuss whether the corporations have a right to spend in politics, because without the power to do so, the right to do so has no meaning.
Every scrap of corporate speech jurisprudence centers on rights and the authority of government to regulate them—and courts have consistently held that authority to be sharply circumscribed. The jurisprudence regarding states’ authority to grant powers to the corporations they create is entirely separate, and for more than a century, courts have consistently held that power-granting authority to be all but absolute.