One of the most important vote results November 3 will not be for an individual candidate, but for Montana ballot issue I-194.
If voters approve that measure, it will be illegal for any corporation doing business in Montana to make political contributions.
How is that possible? Wouldn’t it take a constitutional amendment to close the money floodgates opened by the Supreme Court’s Citizens United decision? Maybe not. A new nationwide movement, Corporate Power Reset, is about to test it.
A corporation gets its right to exist and operate in a charter from a state. The state sets the conditions for that charter. One of those conditions could be a prohibition on spending corporate money in political campaigns. If Montana enacts such a requirement, not only would corporations chartered there need to honor that ban, but every outside corporation would be required as a condition of doing business in Montana.
How State Charters Can Block Corporate Political Contributions
A state’s right to set conditions is known as the “reserved power clause,” and is rooted in 200 years of corporation law. Backers of its use to ban political contributions say that for the Supreme Court to rule against the states would shatter the judicial theory of federalism the Roberts Court has been developing for the past 20 years.
Hawaii enacted new corporate requirements earlier this year. Not just for corporations, but for nonprofit associations, LLCs, partnerships and nonprofit associations as well. Starting July 1. 2027, spending money or contributing anything of value to influence candidate elections or ballot measures would be a violation of their charters.
New York’s legislature is considering not a ban, but a measure that would require corporate political contributions to be approved by shareholders. Other states may adopt differing versions. Bills have been introduced in 14 states.
The legal reasoning for why this end run could successfully circumvent the Supreme Court’s Citizens United decision without requiring a constitutional amendment is outlined on the website of the Center for American Progress.
Turning Off the Money Funnel Before the Next Election
In its 5-4 Citizens United decision, the Supreme Court majority took the bizarre view that unlimited corporate money wouldn’t corrupt U.S. elections. Given election experience in the years since, that’s not a view the Court could easily defend.
Nearly $1billion in donations will be reported from corporations by the time the books close this year. Billions in dark money from organizations that aren’t required to disclose donors almost certainly includes corporate entities as well. Total political spending this year will exceed, by billions, 2022’s non-presidential year record of $11 billion.
Voters in states where there are tightly contested elected elections are being inundated by the advertising big money buys. No wonder that polls regularly show turning off that funnel is a bi-partisan issue supported by two-thirds or more of the public.
Montana’s voters could lead the way to a solution by giving ballot issue I-194 resounding support, helping to start a stampede of other states to join next year.
Wouldn’t it be a welcome relief, and a huge score for democracy if that pipeline was shut down before we vote again in 2028?
Comments? Criticism? Contact Joe Rothstein at jrothstein@rothstein.net
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