Could We End Corporate Money In Politics?

Backers of a referendum before Montana voters next year believe they’ve found a vulnerability on Citizen United

Move to Amend holds a rally at the Supreme Court. Photo By Bill Clark/CQ Roll Call.

If you ask legal scholars and political observers to list the worst decisions of the U.S. Supreme Court in the modern legal era, Citizens United would be near the top. That 5-4 opinion ushered in an era of unlimited independent corporate money in our politics, warping our entire electoral process and tying big money to big politics for a generation.

The High Court’s decision rested on the notion that corporations, long defined as “legal persons,” are entitled to First Amendment protections just like actual people. Therefore, they held, it is a violation of their “freedom of speech” to put restrictions on what their money can say and do, even in politics.

We know what happened next. Big corporations, through super PACs and outside groups, flooded the system, drowning out individuals’ voices. And there seemed no way to stop it, short of a constitutional amendment that would allow limits on corporate political spending.

It feels like we’re stuck with the ruling forever.

Or are we? A group in Montana is pushing forward with a novel approach that could leverage the traditional power of the states to regulate corporations. It’s called the “Montana Plan,” and it’s starting to garner attention. If it works and survives legal challenges (a big if), and then spreads beyond Montana, it could turn the tide on corporate money in politics.

Before we get into the Montana Plan, a primer on how we got here.

Corporations are people, too!

Once upon a time, there were restrictions on how much money corporations could spend on politics. This included so-called “independent” spending, where money doesn’t go directly to any particular candidate or party. That was the state of things for centuries.

But in 2010, a conservative nonprofit group known as Citizens United sued to invalidate the campaign finance rules. It wanted to air a film criticizing then-Senator Hillary Clinton. The Supreme Court found that Citizens United had a First Amendment right, just like a real person, to spend money distributing the film.

But it went further than that. Citizens United had wanted to directly criticize a senator and likely future presidential candidate. The Court went beyond that request to also invalidate restrictions on “independent” group spending. With that, the conservative majority ushered in the super PAC era.

We all know from experience that super PACs are not “independent” at all. The money comes in and gets spent with a wink and a nod. There’s no question that the money directly helps certain candidates. And rather than be fully transparent, while super PACs are required to disclose their donors, the donors themselves may be organizations whose members and contributors remain anonymous. This is why we often call such funds “dark money.”

The explosive growth of super PACs

According to a study by the Brennan Center for Justice, using publicly available data, the 2024 election saw a huge increase in the number of donors giving five million dollars or more to presidential super PACs:

This election, the biggest super PACs supporting the major party nominees for president have together taken in $865 million from donors who each gave $5 million or more. That’s more than double the amount by this point in 2020, which was $406 million. This biggest-spending category of donors has provided more than 75 percent of the funding to presidential super PACs in the 2024 election, up from 63 percent in 2020.

If you want to understand what oligarchy looks like, this is it. Indeed, those mega-rich donors are so key to the fates of the presidential campaigns that they inevitably gain special access, privileges and rights that ordinary citizens do not.

Recent efforts to limit Citizens United

When President Obama gave his State of the Union address in January of 2010, he directly criticized the Supreme Court’s ruling in Citizens United:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.

Justice Samuel was seated in attendance at the time and could be seen shaking his head and mouthing, “Not true.”

But over the next 15 years, President Obama was proven correct. Special interests, in the form of billionaires and big corporations, can not only outright buy influence through campaign donations, but under Donald Trump, they are expected to pony up for things like his inauguration and White House ballroom or face possible retaliation. How long until Trump demands they contribute directly or through undisclosed methods (such as crypto and dark money super PAC contributions) to Republican campaign coffers? Trump is the quintessential transactional, quid pro quo president after all.

In recent years, state-level efforts to limit this kind of money from flooding our elections have sprung up. For example, a voter initiative last year in Maine sought to cap the amount individuals and corporations could contribute to super PACs. It prevailed with roughly 75 percent in favor. As Maine Public Radio reported,

The ballot initiative approved by Maine voters last year would set a $5,000 annual limit on donations to political action committees that make “independent expenditures” on candidate campaigns. Supporters argue that the cap is needed to avoid potential quid-pro-quo corruption — which is when an individual or group makes a donation and gets political favors in return from the elected official who benefited from their supposedly independent spending.

In July, however, that law ran smack into the Supreme Court’s Citizens United ruling. A federal court struck down the Maine law as unconstitutional, writing that Citizens United prohibits any limits on contributions to groups that spend money to support or defeat candidates independently.

Professor Larry Lessig of Harvard, who has made it his life’s mission to get big money out of politics, wasn’t surprised by the ruling. In fact, he wants to get the issue before the appellate courts.

That’s because the Maine law addresses a loophole that he believes the federal courts have overlooked: allowing “coordinated” donations to super PACs in return for favorable actions by the candidate — the classic quid pro quo that the Supreme Court has said in earlier cases is actually a proper limitation on political contributions.

Unlike people, corporations exist by permission of the state

There are two distinct sources for most of the money pouring into our politics. First, there are billionaire donors whose individual donations can create outsized effects. Elon Musk, for example, created the America PAC, which spent $200 million in the fall of 2024 to help tip the election to Donald Trump. And second, there are the wealthy corporations, which can funnel money into super PACs under the holding in Citizens United.

Reformers who want to blunt the impact of Citizens United see an opportunity to rein in the latter using an unlikely source: the power of each of the 50 states.

Despite the notion that corporations are legal “persons” that are entitled to First Amendment protections, they differ from actual people in at least one critical way: People don’t need the state to create or license them.

Corporations exist with the express permission of the state in which they are incorporated. They are legal inventions, statutorily-created entities. They only have as much power as the states grant them.

That means the answer to Citizens United may be staring everyone straight in the face. After all, the states—and this Supreme Court majority is for “states’ rights” after all—by definition have the final say over what corporations may do in their states. As noted by the Center for American Progress, which backs campaign finance law reforms, “Corporations are pure creatures of state law. And for more than two centuries, the Supreme Court has affirmed that states have virtually unlimited authority to modify and withdraw the powers they grant to their corporations.”

Why couldn’t that authority include never granting corporations the power to spend money on political contributions in the first place?

The western and independent-minded state of Montana is about to test the limits of that authority.

The Montana Plan

The idea is deceptively simple. According to its organizers, “The Montana Plan uses the State’s authority to define what powers corporations get and stops giving them the power to spend in our politics.” In 2026, organizers hope to place the “Transparent Election Initiative” before voters as a ballot measure to implement the Montana Plan.

They argue,

“For more than a century, Montana, like every state, has given all corporations the power to do everything legal. Turns out, we don’t have to do that.

“States don’t have to give corporations the power to spend in politics. So The Montana Plan simply stops granting that power.

“Citizens United held that corporations had a right to spend in politics. But if a corporation doesn’t have the power to act, that right can’t be used. That makes Citizens United irrelevant.”

But wait. Can Montana really do this? The Montana Plan’s argument is threefold.

First, Montana law expressly allows the state to change or repeal its corporate code at any time, for any reason. There is no such thing as a permanent claim to any power or authority.

Second, any changes to the corporate code apply to every corporation, whether new or existing. That means every corporation’s authority can be redefined by rewriting the law that originally authorized it.

Third, out-of-state corporations wishing to operate within Montana can only exercise the same rights that Montana corporations have. If Montana corporations can’t spend in our politics, neither can they.

As the Center for American Progress observed, even Justice Scalia, who wrote a concurring opinion in Citizens United, would agree generally with the idea that a corporation is limited to its charter. “To be sure,” Justice Scalia wrote, “in 1791 (as now) corporations could pursue only the objectives set forth in their charters.”

It further noted that charter limitations on corporations date back hundreds of years to the 1837 case of Charles River Bridge v. Warren Bridge. In that opinion, the Supreme Court cited English common law and held corporate charters must be strictly construed in favor of the public, with any ambiguities cutting against the corporation:

This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases, is now fully established to be this; that any ambiguity in the terms of the contract, must operate against the adventurers, and in favour of the public, and the plaintiffs can claim nothing that is not clearly given them by the act.

If you’re a corporation, what the state grants, the state may take away, so long as it does so equally for all.

The power to speak versus the right to speak

At the heart of the Montana Plan lies a fundamental question. While the Supreme Court has ruled that corporations have the right to free speech, it has never addressed whether they have the power to speak. And that power comes directly from the grants of power provided by the states.

The only reason that corporations, like people, have the right to speak is that states have always granted them the full powers that any person might have to conduct business in the state. No one has ever thought to question whether this grant of power may be limited from the outset, but we are likely about to find out if the Montana Plan passes.

As explained by the Center for American Progress,

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.

The history of corporate charters in the U.S. is also illustrative. At the outset, corporations were rare, and their powers were strictly limited to the activities set out in their charters. Such powers did not include the power to make political contributions. The notion of “general charters” that gave rise to this power arose much later.

And if we’re being originalist here, as the radical majority on the Supreme Court claims to be, then we need to see what rights corporations had at the time the First Amendment was written. As Harvard law professor John C. Coates IV observed,

The fact that corporations could only act in ways and to pursue ends authorized in their charters means that – until late in the nineteenth century, when ‘general purpose’ clauses became common in corporate charters – none of the corporations in existence at the time the First Amendment … was adopted was legally authorized to engage in speech as a business activity, particularly political speech.

In a twist of irony, Justice Scalia’s concurrence in Citizens United may have inadvertently provided the clue we needed to moot the entire opinion, at least with respect to political expenditures by corporations. In Footnote 5—in law school, you soon learn that some footnotes carry greater weight than the entirety of the opinion—Scalia was responding to the dissent’s argument that the common law generally prohibited corporate political spending. Justice Scalia, in his typical legal sneer, noted,

Of course even if the common law was ‘generally interpreted’ to prohibit corporate political expenditures as ultra vires [beyond its authority], that would have nothing to do with whether political expenditures that were authorized by a corporation’s charter could constitutionally be suppressed (Emphases added.)

But that which is authorized may be unauthorized, the Montana Plan organizers would argue. Even Scalia said so!

Nor would the change to the corporate code in any way affect the First Amendment rights of the individuals who seek to incorporate in the state. After all, the law says nothing about, and places no limits upon, what they can do personally with their money, including political expenditures. You don’t need a corporation to enjoy the full rights to speak, including by way of political contributions.

Legal challenges

While the Montana Plan looks and sounds great in principle, many dismiss it on the belief that a Supreme Court majority that wants to preserve the unfettered right of corporate money in our politics will find a way to strike it down.

But to do so, it would have to violate two basic principles.

First, a corporation would have to come before a federal court asking to strike down a state court’s corporation code, presumably on First Amendment grounds. That is a big ask for a court concerned with preserving traditional state powers and our system of federalism.

Second, what exactly would be the remedy? After all, the Montana Plan seeks to revise the state’s corporate code to set out specific enumerated powers that corporations will have going forward, just like the states did before they adopted general corporate powers provisions. Courts aren’t legislators, however. They don’t have the power to write in missing powers, only to strike down the offending law. Is the Supreme Court willing to strike down the entire power of Montana to authorize corporations simply because it did not grant the specific power of political speech to them?

That would open a very large can of worms and insert the court into what is traditionally a fundamental state-level power.

Assuming it could get past this, there is the problem of what legal scholars call “unconstitutional conditions.” Those are benefits that the government will only grant provided the beneficiary surrender constitutional rights, such as the Freedom of Speech. We’ve seen this in play recently with major universities and the Trump White House, and it admittedly feels wrong and overreaching.

This is a close call, but the Court has held that refusal by the government to do something, such as fund an abortion clinic, is not a surrender of a constitutional right. Likewise, a refusal by a state to grant corporations more powers is not a surrender of a constitutional right.

What the White House is doing now is different. It is targeting specific institutions and demanding specific, content-based changes to their internal policies, resulting in the imposition of unconstitutional conditions.

By contrast, a state that defines the powers that it grants to corporations so as not to include election and campaign contributions does so without regard to which campaign and which election. It applies to Democrats and Republicans alike.

A strong first step

No one can predict whether this reimagining of corporate power, as granted by the states, will succeed in biting into Citizens United. The Montana Plan is bold, but it still has to first pass muster with voters and then withstand furious legal challenges, made more difficult by a likely skeptical Supreme Court.

This doesn’t mean the fight isn’t worth pursuing, however. On the contrary, the political and legal battles over who ultimately has more power—the people of the states or the corporations that are authorized by them—could draw significant attention to the underlying problem.

It could ultimately force the Supreme Court to show its cards by pitting it against the very states that it has otherwise deferred to on other major issues, such as abortion. If it doesn’t want to take on this fight, it could simply agree that the issue is non-justiciable, either because it is a question for each state to resolve or because courts fundamentally don’t have the ability to rewrite corporate authorizing statutes.

If the Montana Plan succeeds, or even gets stuck for years in the courts, other states—particularly powerful blue states where many corporations are based—could join the cause. While not every state legislature, particularly the GOP-controlled ones, would be keen to follow suit, citizen referenda like the one we are seeing in Montana could force plebiscites in multiple states.

At the very least, this new effort could serve as an important notice that the era of big money in politics can and must draw to an end. And if anyone has the power to regulate the activities of corporations and to limit their powers, it is the very states that gave them their powers in the first place.