Could States Bypass The Supreme Court And Get Rid Of Citizens United?

 

It has generally be thought that only the Supreme Court could get rid of its Citizens United decision (which allowed corporations to donate huge amounts of dollars to political campaigns). But Robert Reich tells us there might be another way. He writes:

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.

Many Corporations Are Funding Seditionists In The GOP

The following op-ed is by Alex Kingsbury in The New York Times:

Immediately after the Jan. 6 attack, hundreds of corporations announced freezes on donating money to Republican lawmakers who had voted against certifying Joe Biden’s victory. “Given recent events and the horrific attack on the U.S. Capitol, we are assessing our future PAC criteria,” a spokesperson for Toyota said a week after the attack.

For many corporations, that pause was short-lived.

“By April 1, 2021, Toyota had donated $62,000 to 39 Republican objectors,” the journalist Judd Legum wrote in his newsletter, Popular Information. That included a donation of $1,000 that Toyota gave to Representative Andy Biggs, a Republican from Arizona who is a close ally of Donald Trump and a fervent devotee of the “big lie.”

In July 2021, Toyota reversed course and announced another hiatus from donating to lawmakers who voted to overturn the election results. Six months later, the money started to flow again. The company, in a statement to The Times, said it donates equally to both parties and “will not support those who, by their words and actions, create an atmosphere that incites violence.” (Corporations aren’t allowed to give directly to campaigns but instead form political action committees that donate in the name of the company.)

In the year and a half since the attack, rivers of cash from once skittish donors have resumed flowing to election deniers. Sometimes tens of thousands of dollars. Sometimes just a thousand. But it adds up. In the month of April alone, the last month for which data is available, Fortune 500 companies and trade organizations gave more than $1.4 million to members of Congress who voted not to certify the election results, according to an analysis by the transparency group Accountable.US. AT&T led the pack, giving $95,000 to election objectors.

Of all the revelations so far from the hearings on the Jan. 6 attack, the most important is that the effort to undermine democratic elections in the United States is continuing. More than a dozen men and women who participated in the Jan. 6 insurrection or the rallies leading up to it have run for elected office this year. Supporters of Mr. Trump have also run for public offices that oversee elections. And according to an investigation by The Times, at least 357 Republican legislators in nine states have used the power of their offices to attack the results of the 2020 election.

This isn’t a hypothetical threat. On Tuesday, New Mexico’s secretary of state was forced to ask the State Supreme Court to compel a Republican-led county election commission to certify primary election results. The commission had refused to do so, citing its distrust of its own voting machines.

There is also an active effort underway to frustrate the Jan. 6 committee’s work, including refusing to comply with subpoenas. Mr. Biggs, for instance, has refused to comply with a congressional subpoena to testify, as have other Republican members of Congress, including Jim Jordan, Kevin McCarthy, Mo Brooks and Scott Perry. (Mr. Perry, among other congressmen, asked for a presidential pardon for efforts to challenge and overturn the 2020 election, according to Representative Liz Cheney, the vice chair of the committee. He has denied that charge.) Representatives Barry Loudermilk and Ronny Jackson have yet to agree to interview requests from the committee. Six of these congressmen alone have brought in more than $826,000 from corporate donors since Jan. 6, according to Accountable.US. (Mr. Brooks didn’t receive any money from the Fortune 500 companies and trade groups tracked in the report.)

We tend to think of the past and future threat to elections as coming from voters for Donald Trump and those whom they’d elect to office. But the success of these politicians also depends on money. And a lot of money from corporations like Boeing, Koch Industries, Home Depot, FedEx, UPS and General Dynamics has gone to politicians who reject the 2020 election results based on lies told by the former president, according to a tally kept by the Citizens for Responsibility and Ethics in Washington, known as CREW.

All told, as of this week, corporations and industry groups gave almost $32 million to the House and Senate members who voted to overturn the election and to the G.O.P. committees focused on the party’s congressional campaigns. The top 10 companies that gave money to those members, according to CREW’s analysis of campaign finance disclosures, are Koch Industries, Boeing, Home Depot, Valero Energy, Lockheed Martin, UPS, Raytheon, Marathon Petroleum, General Motors and FedEx. All of those companies, with the exception of Koch Industries and FedEx, once said they’d refrain from donating to politicians who voted to reject the election results.

Of the 249 companies that promised not to fund the 147 senators and representatives who voted against any of the results, fewer than half have stuck to their promise, according to CREW.

Kudos aplenty to the 85 corporations that stuck to their guns and still refuse to fund the seditious, including Nike, PepsiCo, Lyft, Cisco, Prudential, Marriott, Target and Zillow. That’s what responsible corporate citizenship looks like. It’s also patriotic.

We’re going to need more patriotic companies for what’s coming. Not only are Republican lawmakers who refused to certify the election results still in office; their party is poised to make gains during the midterm elections. Their electoral fortunes represent not only an endorsement from voters who support their efforts to undermine our democracy; they also represent the explicit financial support of hundreds of corporations that pour money into their campaign coffers.

Money in politics is the way of the world, especially in this country. But as the Jan. 6 committee’s investigation has made clear, Mr. Trump’s attempted coup was orders of magnitude different from the normal rough-and-tumble of politics. Returning to the status quo where corporate money flowed to nearly every politician elected to office isn’t just unseemly; it is helping to fund a continuing attack on our democracy.

Many Americans say they’ve moved on from the attack on Jan. 6. For those who haven’t, a good place to focus their attention is on the continuing threat to the Republic posed by politicians who are actively undermining it, and the money that helps them do so.

Cruz Wins Court Battle To Legalize "Quid Pro Quo" Corruption

Did you think it's illegal to give a congressional candidate an expensive gift to get him/her to listen to your point of view on bills before Congress? It is supposed to be, but members of Congress (and their rich donors) are very good at finding ways around that. Ted Cruz recently went to court (and won) to allow donors to send him money after he won an election -- money that goes directly into his personal bank account. It's a devious way to legalize quid pro quo corruption!

The following is part of an article about this by Richard W. Painter at MSNBC.com:

Thanks to a win for Sen. Ted Cruz, R-Texas, in a lawsuit last week against the Federal Election Commission, campaign contributors now have a foolproof way to make sure the money they donate goes right into a winning congressional candidate's personal bank account.

Post election contributions are included in the $2900 maximum per donor contribution per election cycle and can be made to a candidate who wins or loses. But post-election contributions are particularly appealing to donors who prefer to know that a candidate has won before they contribute.

Contributors may want their money to go to the winning candidate's personal funds, ensuring maximum gratitude and maximum probability of reciprocity (the Latin phrase for this is "quid pro quo," but we're not supposed to talk about that).

Thanks to Cruz's successful lawsuit, candidates now can make unlimited use of a mechanism that gives these contributors a bigger voice in Washington.

In the suit, the U.S. Court of Appeals for the District of Columbia Circuit held that candidates for federal office and their campaign contributors have a constitutional right to deploy a scheme that works around both campaign finance laws and restrictions on personal gifts to members of Congress. . . .

Here's how it works:

A member of Congress is running for re-election. He raises $6 million for his campaign by Election Day, but he wants to spend more. So he lends his campaign $1 million more from his personal funds. After he wins the election, he continues to raise money for the same campaign from donors who contribute money not for the purpose of winning that election or the next one but solely for the purpose of paying back the congressman. Their contributions go into his campaign bank account and out again into his personal bank account. Dollar for dollar, every post-election contribution these donors make goes directly to the congressman.

The potential for corruption in this scenario is obvious. The economic reality of the transaction is that the post-election campaign contribution is a gift to the congressman. The congressman was willing to spend $1 million of his own money on his campaign, which is permissible under current campaign finance laws. But then, after he won the election, he solicited more contributions so he could get paid back by people willing to donate for the sole purpose of paying him back.

If we want to allow unlimited gifts to members of Congress, this post-election contribution and loan repayment should be allowed. But that's not the rule. Both the Senate and the House have strict rules about gifts. Gifts to members from registered lobbyists are flatly prohibited, members may not solicit gifts as they do campaign contributions, and gifts from people other than members' families and a few other sources are generally limited to no more than $50. . . .

Post-election political fundraising and candidate loan repayment are potentially massive workarounds for the gift rules. This is one more way politicians and their campaign contributors, like some businesspeople, come up with clever ways to avoid the law. . . .

Explicitly saying there is a quid pro quo is a great way to book an extended stay in federal prison. So, as with a great many campaign contributions, it's "wink-wink, nod-nod." But in these situations, the usual professed motive for campaign contributions — the donor's desire to help a good candidate win — is absent. The candidate has already won.

Another difference is that this campaign contribution goes directly into the candidate's pocket and benefits him personally. Yes, there is a dollar limit on individual contributions to campaigns, but corporations and other entities can establish political action committees that raise massive amounts of individual contributions from their employees, customers, suppliers and others for political campaigns, including, now, a campaign war chest that can be used for an unlimited dollar amount of post-election payoffs of loans from the candidates themselves. . . .

Either this line of cases will be reversed, whether by a less activist federal judiciary or by constitutional amendment, or we will cease to live in a representative democracy. We will have the best elected officials that money can buy. And now the money need not be given solely for the purpose of electing a candidate, but simply to pay off the candidate after he has already won and is ready to do what is expected in return.

Biden Has Millions More To Spend Than Trump Does

 

Joe Biden doesn't just have a clear (and stable) lead in the polls this year, but he also has a significant advantage in the amount of money he can spend on his campaign before Election Day.

Here is how The New York Times is reporting this:

Joseph R. Biden Jr.’s campaign said on Sunday that it entered September with $466 million in the bank together with the Democratic Party, providing Mr. Biden a vast financial advantage of about $141 million over President Trump heading into the intense final stretch of the campaign.

The money edge is a complete reversal from this spring, when Mr. Biden emerged as the Democratic nominee and was $187 million behind Mr. Trump, who began raising money for his re-election shortly after he was inaugurated in 2017. But the combination of slower spending by Mr. Biden’s campaign in the spring, his record-setting fund-raising over the summer — especially after he named Senator Kamala Harris of California as his running mate — and heavy early spending by Mr. Trump has erased the president’s once-formidable financial lead.

Mr. Trump and his joint operations with the Republican National Committee entered September with $325 million, according to Mr. Trump’s communications director, Tim Murtaugh. . . .

Democratic donations surged further over the weekend. Following the death of former Justice Ruth Bader Ginsburg, which opened a vacancy that could tilt the ideological bearing of the Supreme Court further to the right, contributors shattered records on ActBlue, the biggest online processing platform for the left.

Donors gave more than $100 million over the weekend after her passing.