Just in time for some good news for a change, Montana–of all places–has come through. Citizens in that state are preparing to vote on a ballot measure that would neuter the effects of Citizens United in that state. If it passes–and the odds are good–it would encourage similar efforts in other states. And given the national “popularity” of Citizens United (some polls show 75% of Americans opposed to it), plenty of other states would follow.
According to a report in the Prospect, which calls the initiative “ingenious,” the measure wouldn’t legally overturn the ruling– but it would negate its consequences. The proposal is titled “the Transparent Election Initiative,” and according to the description, it “wouldn’t affect corporations’ rights—which Citizens United extended to buying elections—but rather their powers, which are created exclusively by the individual states.”
As Harold Meyerson writes,
This argument—which, to the best of my knowledge, has never been tried before—is laid out in a brilliant paper that the Center for American Progress published last month. The paper’s author is 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. Moore’s paper is exhaustive and complex, but his argument can be boiled down to simply this: All American corporations are chartered and given their powers by state governments, which means that state governments (or voters in states where initiatives and referendums can enact or change laws) can rewrite their charters to deny corporations the power to involve themselves in elections.
The paper to which Meyerson refers contained copious citations, but evidently all of them were in furtherance and confirmation of an 1819 ruling written by then-Chief Justice John Marshall, who wrote:
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.
Multiple court rulings also confirm the “unchallenged principle” that the states, not the federal government, have the authority to grant corporations their powers. Meyerson notes that in his opinion in the intellectually indefensible Hobby Lobby case, which endowed corporations with religious scruples that allowed them to avoid providing contraception coverage to their employees, “none other than Samuel Alito wrote that ‘the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated.’
Furthermore, states have taken advantage of their power to amend their charters and have limited specific powers. In 1876, Texas removed banks’ power to issue bills of credit; in 1913, New Jersey limited the power of holding companies.
My initial reaction was “great–but what about Delaware?” As every corporate lawyer knows, thanks to its very corporate friendly laws, lots of companies that do business elsewhere are chartered in Delaware, which would be unlikely to follow Montana’s example. Meyerson says the paper addressed that concern, pointing to multiple court decisions holding that “foreign corporations”—that is, corporations chartered in other states– must comply with the laws of the states in which they do business.
The ballot initiative rests on the distinction between powers (which are created by the states) and rights (which are protected by the Bill of Rights, and were federalized by the 14th Amendment). In Citizens United, the Supreme Court held that corporations’ free speech rights included the right to participate financially in elections.
Kudos to Montana and here’s hoping for passage of the Transparent Election Initiative!
How ironic that the very argument (states rights) that the far right has used to enforce their religious and economic ideas on the country is now going to be their undoing.
More Election news: WI Supreme Court election on 4/7 was decided 60/40 for the DEM Candidate. A 20 Point Win – Good news for sane people in WI. Another good omen for November
This is good news, thank you for sharing it because I had not heard of this move. It is brilliant, and I hope it leads to the end of this horrible ruling.
I guess Antonin Scalia and the rest of the Republicons on SCOTUS didn’t read this part: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law,…”
Following that ruling would have been a slap at those who finance Republicans in Congress and on the court … as well as a few shady Democrats. And, heaven knows, we can’t piss off the hand that feeds us, can we?
Republicans own corruption, though it does spread to other parties and entities. Hey! You gotta compete somehow.
So, TACO Don didn’t commit the genocide he ranted about. When will the Republicans return to humanity complete with spine and do the right thing by invoking the 25th Amendment? They’d better hurry, because some military officer will show Trump how to use the “football” and we’ll have gone down the road to real Armageddon.
Good news! And in Wi., also.
Scalia said “Live with it!” We have, and it’s been horrid! Hoping, hoping.
Yes! Such great news. Hopefully states will use it.Thanks for the encouraging information.
Congress still needs to make changes to the tax code to require disclosure of contributions to all 501corporations. If we can’t stop corporations from buying legislators, at least we will know who owns them.
Trump ran on a platform of running the government like a business, and that is what he is doing… He’s running it like his own SMALL family-owned business, in which the patriarch gets to make all the decisions and then also faces all the consequences.
But democracies and large corporations have a different corporate model, in which the CEO and COO and Board Chair all LEAD rather than COMMAND, and must bring along and respond to the Board and the stockholders, who can remove them when they lose confidence.
In government leadership only autocracy or a dictatorial/ imperial ruler model can function with a leader like Trump. Indivisible understands that; hence the name ‘No Kinfs Day. Donald Trump and the US Constitution are utterly incompatible.
His style of brinksmanship – with no diplomacy or consultation used – is only possible if he is an unchecked king. This past week’s bluster and last-minute retreat from the obnoxious threats has finally lost him all credibility with not just our citizens and allies, but even with our national adversaries. No one trusts anything he says any more. No one.⁸
Until he departs the scene, the US has no effective leader. Only chaos.
Iran’s leadership clique have taken Trump’s measure and checkmated him. Literally…! As a ‘King’ he no longer has any moves he can make. Game over.
If “a corporation is an artificial being” invisible and intangible, how can it have a voice at all. If the states are the ones that define the structure of a corporation, essentially it is a work of artificial construction designed to meet the needs of the market place/business. It does not necessarily consist of collective voices but can be very limited in its ownership, if I understand the legal definition.
If the Bill of Rights prevents the government from curtailing free speech of individuals, it seems to me that an artificial being does not fit the definition of a real physical being with the ability to produce understandable language in any form.
I have no training in the law so I may be pardoned for my ignorance, but it seems to be a very tortuous opinion to justify corruption.
It may be too late for us to reverse course with the obvious capitulation to a dictator wannabe by the Electoral College, the SCOTUS and the Congress controlled by gerrymander and complacent non-voters. Taking the money out would be a start. Montana may have a slim chance of starting the rebirth. This SCOTUS will likely find a flaw to rule against it, however labyrinthine it may be. Their corruption makes it almost a sure thing.
Unless the voters and the Congress, both already deeply corrupted by dark money, decide against self-interest and throw the bums out, we are lost as a democratic republic.
With all of the obstacles being put in place, the threats that come almost hourly to voting rights, the rantings of a mentally ill puppet used by a cabal of billionaires to gain as much wealth and power as possible, all going not only unchallenged but facilitated by those chosen by the electoral system already in place, the mid-terms could be halted or if held, results could be delayed for weeks or even months.
Nothing is working, no guardrails preventing the takeover unless we all step up and “pledge to each other, our lives, our fortunes, and our sacred honor” as did those brave men who stood up to the greatest force in the world at the time.
Unfortunately, that kind of resolve seems to be sadly lacking all across the country.
RESIST.
WISHFUL THINKING!!! S(cumbag)COTUS, 6-3 or 5-4 if Roberts grows a spine, will invalidate it. Like a mother protecting her baby.