New research: Citizens United Can Be Made Irrelevant Via Changes To State Corporation Law

[MayReasonRule]

Last edited Mon Sep 22, 2025, 09:04 AM - Edit history (2)

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🔹 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
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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.

Further discussion with the author at reddit/r/law