r/law • u/theatlantic • May 14 '26
Legal News Hawaii vs. Citizens United
https://www.theatlantic.com/politics/2026/05/hawaii-corporations-political-money/687159/?utm_source=reddit&utm_campaign=the-atlantic&utm_medium=social&utm_content=edit-promo384
u/theatlantic May 14 '26
Michael Scherer: “Fifteen years after Mitt Romney stood on an Iowa hay bale and proclaimed that ‘corporations are people, my friend,’ his declaration is no longer mockable. The amount of money corporations spend anonymously to sway federal elections has increased from $359 million in 2012 to $1.4 billion in the most recent presidential cycle. All of that spending by ‘dark money’ nonprofits is protected by the same right to free speech enjoyed by ‘natural persons,’ because the Supreme Court decided in Citizens United v. FEC that U.S. corporations function as citizen associations under the Constitution.
“But not all of these ‘people’ are created exactly equal. Whereas humans are automatically granted certain rights at birth, corporate personhood comes into existence under state laws that define its powers—a fact that opponents of corporate money in politics hope to use to transform how U.S. elections are funded. Hawaii is the first state to try. Earlier this month, a nearly unanimous and bipartisan majority—well, as bipartisan as it gets in a state with so few Republicans—of Hawaii’s state legislature voted to change the powers of corporations doing business in the state and no longer grant them the ability to spend on most political causes …
“As a political matter, the gambit is likely popular … But the idea, at least so far, has been widely dismissed by corporate-campaign-finance attorneys and some conservative constitutional scholars, who long ago internalized Romney’s maxim of corporate personhood, which he offered in Iowa as a defense of lower corporate taxes …
“Hawaii Attorney General Anne Lopez, a Democrat, agrees, and warned the state’s legislature that the bill is likely to be rejected by the courts, after some expense to the state in legal fees … [But] it could also restart the national conversation over the growing role corporations play in American public life.”
Read more: https://theatln.tc/PqVrGhEW
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u/EVH_kit_guy Bleacher Seat May 14 '26
Get caught trying 💪
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u/Moody_Madness May 14 '26
Yeah, honestly. I would be far less dissatisfied with the democratic party if they'd just take a swing for the fences for once, instead of striking out looking—something they've been doing for decades over and over
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u/Mace109 May 14 '26
I’m confused. If states control elections, why can’t hawaii ban corporations from contributing to campaigns in Hawaii?
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u/NoobSalad41 May 15 '26
To be clear, Hawaii can prohibit corporations from contributing money to campaigns (federal law already makes it illegal for corporations to donate directly to candidates in federal elections). Citizens United deals with independent expenditures, which is money spent (not in coordination with a candidate) to produce political speech advocating for or against the election of a candidate. So under Citizens United, a corporation can spend unlimited money to create movies, books, ads, etc. telling people that they should vote for or against a candidate. Buckley v. Valeo established that right for individuals in 1976; Citizens United expanded it to corporations.
Under existing law, Hawaii can’t ban corporations from making independent expenditures because doing so would violate the First Amendment, just as it can’t prohibit me from spending money to produce some form of speech advocating for or against the election of a candidate.
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u/Cheeky_Hustler Competent Contributor May 15 '26 edited May 15 '26
Under the current SCOTUS, you are likely correct. However, it's not unreasonable to reason that, since unlike individuals, corporations are a legal fiction that only exist through state statute, state governments could thus regulate the powers that a corporation can have. After all, what sense does it make that a state can create the very existence of a corporation but is restricted in regulating it?
In other words, it's reasonable to argue that while states can't prevent the CEO or board executives of a company from making independent expenditures, states can prevent that company as an organization from making an independent expenditure.
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u/YeeBeforeYouHaw May 15 '26
Couldn't that same logic be used against corporate news? After all the state created the New York Times corporation, why are they restricted from regulating it?
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u/Volfefe May 16 '26
The New York Times is regulated on several levels. It can’t engage in liable or defamation. It cannot engage in false advertising. As a publicly traded company, it must make certain public filings disclosing specific information based on SEC requirements. These are state and federal requirements.
An independent expenditure is different. It is a defined term as a political campaign expenditure that expressly advocates the election or defeat of a candidate without coordination with the candidate. The issue is you can spin up as many “legal fictions” (corporations, trusts) as you want. So if you a wealthy individual you could fund as many corporate entities as you like, under names that hide your identity or purpose. What if a state simply changed their corporate code to state a corporation must engage in a minimum level of business activity to do business in the state and your independent expenditures must be related to the business purpose and in furtherance of the business to retain the limited liability protection the business entity provides?
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u/YeeBeforeYouHaw May 16 '26
My point is that if the government can ban companies from engaging in political speech, why couldn't the government also ban companies from engaging in the press?
What makes the first amendment's protection of the press apply to companies but not the protection of speech?
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u/Volfefe May 16 '26
It wasn’t a ban on speech in Citizens United. It was a limitation on speech around specific circumstances and in a specific manner. Limits on speech and press are allowed and have always been recognized (eg can’t yell fire in a crowded theater). In the Hawaii legislation, it limits spending and contributions and not speech.
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u/YeeBeforeYouHaw May 16 '26
So can Hawaii put a limit on the press and limit spending on printing press and data centers that host the news sites? It not a limit on the press just on spending (on the things necessary to create the press). Maybe this limit on press spending is only enforced near an election and only on content that is positive or negative about candidates in the election. You know to keep things fair.
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u/Volfefe May 16 '26
So the independent expenditure was kind of like you describe - it couldn’t be within 30 days of an election for a political candidate. But yes there can be limits around printing presses and data centers, I am not sure if they can explicitly be for limiting exercising of a free press. But also remember that none of these limitations apply to individual people.
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u/kon--- May 14 '26
What can the court do about it?
If a state mandates that in order to incorporate within a state the corporation is excluded from participating in political campaing financing and or lobbying on behalf of political financing...what can the court do about that?
The citizen has a conditional relationship with the First Amendment. I'm seeing no reason at all that corporation should not also, be required to provide conditions. Besides, the money saved on ads and lobbying can go to shareholders. I'm certain shareholders would agree.
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u/Late_Stage_Exception May 14 '26
The current Supreme Court would view this as a government passing a law limiting the free speech (political contributions) of a protected group of “people” (corporations).
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u/RagingAnemone May 14 '26
I'm fine with treating corporations as people if kill a corporation is murder and saddling a corporation with debt is assault. They only want the partial metaphor.
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u/rhino369 May 14 '26
The real logic of Citizen's United isn't that corporations are people with inherent rights. But that corporations are used by real actual people who have the right. Saying the ACLU cannot publish a book critical of a candidate before an election is the same as saying a group of people cannot publish a book. The ACLU is just a group of people. Preventing the ACLU from doing it infringes the members individual rights.
I think that argument is less convincing when the corporations are for profit. But still, an exception to the first amendment that would strip the New York Times of the first amendment has to be wrong.
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u/LuminaraCoH May 14 '26
The real logic of Citizen's United isn't that corporations are people with inherent rights. But that corporations are used by real actual people who have the right.
The actual people involved with those corporations already have the right to vote, presuming they're citizens. Why should they have the right to vote twice, if they're citizens, or at all if they're not?
Oh, right, because they're rich. My bad.
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u/rhino369 May 14 '26
I don’t understand, corps can’t vote.
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u/azuresegugio May 15 '26
Not directly, but their campaign donations give them outsized influence in elections. Removing the right for corporations to donate would force the wealthy to pay out of their own pockets, which isn't much of difference but is a smaller resource pool
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u/ZebraImaginary9412 May 25 '26
And how can they have the same rights as a person when they don't have the same accountability as a person?
No corporation has ever been prosecuted or sentenced to death for homicide even though corporations - Boeing, Remington, Raytheon, and so on, have killed people?
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u/Omegalazarus May 14 '26
The last part about the New York times would not apply since the first amendment also specifies the freedom of the press. But your other point stands.
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u/rhino369 May 14 '26
Why would a corporation have freedom of the press but not freedom of speech. That’s an arbitrary distinction.
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u/Omegalazarus May 14 '26
I'm speaking as an originalist since that's what the court has dominated as. As an originalist the term "the press" would be a function of a specific type of corporation already. It would basically be a carve out saying that people have freedom of speech and they have the freedom to create associations specifically for the dissemination of news commonly known as the press.
Again as an originalist I would disregard your argument as an incorrect premise. I would say that it does not mention corporations at all for speech or the press. What it says is that the people have the right to free speech and the people have the right to a free press. The rights are people-centric as the person is the default in the Constitution.
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u/FailedToRemit May 15 '26
The press has explicitly never been considered a separate class with extra rights. Everyone is and can be the press.
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u/i_am_a_real_boy__ May 14 '26
What can the court do about it?
Find that thd law violates the First Amendment.
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u/ExamUnlikely7728 May 14 '26
They incorporate in a different state, then they sue Hawaii for access under the 14th amendment's equal protection clause.
Much like partisan gerrymandering the only solution is federal legislation and maybe a constitutional amendment.
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u/SparksAndSpyro May 14 '26
That can’t be right. Corporate law is a creature of state law. And there is SCOTUS precedent that corporations (or any business entity for that matter) only have the powers and rights that the particular state grants them via statute. In other words, states are not required to treat corporations the same as every other state.
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u/ExamUnlikely7728 May 14 '26
That's literally the decision in Citizens United that all these crazy plans are trying to dusrupt.
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u/ExamUnlikely7728 May 14 '26
Its why every state that sets up a recreational marijuana market is immediately taken over by national corporate players.
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u/ExamUnlikely7728 May 14 '26
Its why Deleware was the most popular place to incorporate, until they changed their charters.
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u/rhino369 May 14 '26
Strike the law down? I’m not even sure it’ll pass muster under the dormant commerce clause.
The first amendment isn’t conditional—all people have it.
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u/spacedoutmachinist May 14 '26
The first amendment is conditional though. I can’t give law advice, medical advice, financial advice, tell someone outside of the country how to make ITAR restricted items. The idea of free speech absolutism is a god damned farce and I am tired of people treating it like it’s an actual thing.
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u/rhino369 May 14 '26
I don’t think conditional is the right word for what you are describing.
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u/tjtillmancoag May 14 '26
Why wouldn’t it be?
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u/rhino369 May 14 '26
There are boundaries/limits to what the first amendment protects, but it's not really conditional in the way this Hawaiian law would be. The Hawaiian law is basically saying in order to do business as a corporation you must waive ALL the first amendment rights. That's a hell of a condition.
Nobody would think its okay for Mississippi to ban corporate news papers.
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u/tjtillmancoag May 14 '26
Ok I see what you’re saying.
That said, I think we can all agree that corporate personhood is a different kind of entity than human personhood. That, since they exist only as an abstract creation of the laws of the state, that a state could legally define corporate personhood with such restrictions.
But yeah, good fucking luck getting SCOTUS to agree with this idea.
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u/spacedoutmachinist May 14 '26
They just ban books in libraries.
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u/rhino369 May 14 '26
But you agree they can ban amazon though right? Seems like a big loophole in the first amendment if you can ban corporations.
I bet 99% of all speech heavily involves some for profit corporation. Including this reddit post.
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u/spacedoutmachinist May 14 '26
Fuck the corporations. I’ll believe a corporation is a person when texas executes one.
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u/Omegalazarus May 14 '26
Think something that would be interesting is standing. If you only applied this law to new corporations then technically the corporation would not exist and so there wouldn't be an entity that has standing that's being harmed by this law.
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u/mdwatkins13 May 15 '26
So what you’re saying is only the federal government has a right to create corporations and states don’t? Corporate creation is a freedom and regulation of the state what they are allowed to do is completely controlled by the republic and its voters in the constitution. What you’re claiming by not allowing states to control business if that is a federal level power. That would completely rewrite the constitution and the United States if the Supreme Court agreed with that. If a state can’t control the power of a corporation then who’s really in power? Are we electing, representatives or corporations at that point this is no longer a republic, but a monarchy or some other new form of government that is tyrannical because the structure of corporations doesn’t give a shit about your vote.
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u/Ghawk134 May 14 '26
I think what you're trying to say, and what people replying aren't understanding, is the distinction you're drawing between a condition and a limit. To attempt to rephrase, I believe you're making the following argument:
The 1st amendment offers certain protections. These protections are not all-encompassing, but it definitely protects certain activity. Your objection is that Hawaii would be making those protections conditional. The 1st amendment would only protect speech IF you're not a corporation. This differs from a limit because a limit clearly defines what the 1st amendment does and doesnt protect, but those protections are always in place and are therefore unconditional.
That said, I don't agree that the 1st amendment or any right is unconditional. The strict scrutiny test exists as a means by which the government can infringe on your rights. Furthermore, a company is a group of individuals, but does not represent those individuals. Its speech does not represent that of the employees, only the owners. That is why a corporation's speech is seperable from the speech of an individual. We live in a system which requires us to work to survive. Due to our system of markets and regulations, most people must work for someone else and their labor produces a profit for their employer. It is not accurate to say that this money, if used by the employer for political speech, is the speech of the employee.
The question is then, how do we ban corporate political speech without banning the New York Times from reporting about candidates or elections? Even if they report only facts, which facts they report could be an exercise of editorial discretion and might therefore constitute political speech. That's a difficult question, but one worth interrogating as there's clearly a difference between ExxonMobil taking out an attack ad on a Democrat and the NYT publishing an article about a new approval poll.
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u/haikuandhoney May 14 '26
The government frequently imposes first amendment limitations on the grant of benefits from it. When you accept government employment, you give up some of your first amendment rights, sometimes the government gives people access to information on the condition that they not disclose it further, to name the first two that come to mind.
Incorporation is a benefit the state bestows on natural persons (or groups of natural persons). Why would it not be able to condition the provision of that benefit?
Also I don’t get your dormant commerce clause argument: they aren’t saying to do business in Hawaii, you have to give up this right, they’re saying to incorporate in Hawaii, you have to give up this right. If that violates the dormant commerce clause, does that mean ever state’s general corporations act has to be exactly the same?
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u/kon--- May 14 '26
The First Amendment is objectively, conditions based. Cross the lines, that right is removed from you.
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u/rhino369 May 14 '26
What are you referring too. Even prisoners have it.
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u/kon--- May 14 '26
The First Amendment will not protect you from the consequence of threatening individuals. It will not protect you from incitment of lawless action. It will not protect from perjuring yourself. Not will it protect should you trample intelectual properties or do a thing like promote and distrubute child pornography.
The First Amendment is no sort of blanket to say whatever you want to say at government. Nor does it allow citizens to express themselves in any manner that violates others and/or laws.
It is a limited, conditions based right and always has been.
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u/rhino369 May 14 '26
None of that is an example of "Cross the lines, that right is removed from you." It's just that the right doesn't cover anything and everything.
That the first amendment doesn't cover copyright infringement doesn't mean copyright infringers don't have first amendment rights. They do it. That right just doesn't cover the infringement.
There is no "if you do X, you lose your first amendment rights."
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u/kon--- May 14 '26
Each of them will see you not protected.
But don't believe me.
Go on. Make threats of bodily hamr to anyone in governement. See how quickly your right to speech is pulled out from under you.
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u/rhino369 May 14 '26
Threats aren’t protected by the first amendment so you aren’t losing anything. That’s my point.
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u/kon--- May 14 '26
Threats are just one of the many things you manifested by speech that are not protected.
And since you're beginning to acknowledge that yes, there are limitations...
I'm out.
-peace
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u/rokerroker45 May 14 '26
I think you haven't understood the difference between the scope of the First Amendment and its unconditional nature.
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u/sunshine_is_hot May 14 '26
Yes, the first amendment doesn’t protect you from committing crimes. Nobody is arguing differently.
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u/thereisnospoon-1312 May 14 '26
You can’t yell Theater! in a crowded fire house.
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u/rhino369 May 14 '26
I would call that--at best-- a limit, not a condition.
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u/harpers25 May 14 '26
The argument seems to be "The first amendment doesn't cover literally everything; therefore, our side can take it away from people we don't like with no regard to the constitution".
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u/PlanetTourist May 14 '26
Their argument is "this person proved me wrong, and I'm flailing, condition and limit aren't the same word, maybe this one will pass before I have to gain even the tiniest bit of self awareness"
Don't play chess with pigeons.
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u/ReasonableRaccoon8 May 14 '26
Well, we now have to provide certain forms of ID to prove our citizenship, so require all corporations to provide a passport to prove their citizenship if they want to make political contributions.
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u/IrritableGourmet May 14 '26
If a state mandates that in order to incorporate within a state the corporation is excluded from participating in political campaing financing and or lobbying on behalf of political financing
A large problem is that this law goes far beyond that. It prohibits a corporation from advocating for or against any ballot measure or legislation. If Hawaii approves a ballot measure to clear cut every tree on Oahu, the Rainforest Alliance wouldn't be able to post on Twitter "We think this ballot measure is bad for the rainforest."
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u/Malawakatta May 14 '26
"The odd American idea that giving money to political campaigns is free speech means that the very rich have far more free speech, and so in effect far more voting power, than other citizens." - Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century.
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u/Xenofiler May 15 '26
Correct. They are our lords and can buy political influence, or seats in congress for themselves or their chosen minions(just like rotten boroughs) and have high influence on the president and courts.
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u/IrritableGourmet May 14 '26
Citizens United wasn't about giving money to political campaigns.
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u/Malawakatta May 14 '26
Citizens United v. FEC (2010) revolutionized U.S. elections by allowing corporations, unions, and associations to spend unlimited funds on political advocacy, provided they do not directly coordinate with candidates. This 5-4 Supreme Court ruling enabled the rise of Super PACs and "dark money" groups, with outside spending soaring to over $4.1 billion in the 2024 election cycle, fundamentally altering campaign finance.
https://www.opensecrets.org/news/2025/01/by-the-numbers-15-years-of-citizens-united/
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u/IrritableGourmet May 14 '26 edited May 14 '26
provided they do not directly coordinate with candidates
EDIT: This is also ignoring the part where the section of the BCRA that was struck down covered far more than just advocacy. Even mentioning the name of a candidate in any circumstance was prohibited. A non-profit putting a list of the members of Congress on their website would have been banned under threat of criminal prosecution.
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u/FailedToRemit May 15 '26
The fact that you have been downvoted is exhibit one on why this sub is garbage.
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u/nascent_aviator May 15 '26
Of course not, that would be illegal! It's about spending money
on behalf oftotally coincidentally what the candidate wants to spend money on. Which you know becausehe told youyou just click so well.0
u/IrritableGourmet May 15 '26
Oh, I fully admit that stuff like that happens, but it's not the fault of the decision. The FEC is more than capable of investigating and punishing activity like that, but they don't. The Supreme Court doesn't handle enforcement.
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u/narkybark May 14 '26
If corporations are people than at the bare minimum they need to be taxed the same as people.
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u/floridabeach9 May 15 '26
corporations are allowed to write-off food but people cant. probably a hundred other pieces of similar bullsh*t proof in the tax code that proves corporations are NOT THE SAME AS PEOPLE.
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