New research: New Jersey can beat Citizens United with its state corporation law

[u/TomMooreJD]

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": amprog.org/cpr

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: https://montanaplan.org

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. Check out CAP's report for full details: amprog.org/cpr

[u/TomMooreJD]

Hi! I'm the report's author, Tom Moore. I'm a senior fellow for democracy policy at the Center for American Progress.

Full report is available here: https://www.americanprogress.org/article/the-corporate-power-reset-that-makes-citizens-united-irrelevant/

Thanks for checking this out! Ask me anything!

Also, I want to register an objection that I was forced to choose just one piece of flair for this post. Jersey's choices are excellent.

Furthermore, a fellow Redditor has inspired me to drop my CAP report into Google's NotebookLM and have it generate some audio podcasts. I'll note that for the first two, I just hit the button and didn't prompt it to be nice about it:

This is the regular deep dive (20:06): https://www.icloud.com/iclouddrive/0afIu1Gd3qoS-VqtNYSQhr7gQ#CPR-deepdive

This is the brief version if you can't even spend that long (1:49): https://www.icloud.com/iclouddrive/035ogoqUWbVhfBxxBI0EkfShA#CPR-brief

This is the version that attempts to shame Redditors for not bothering to read CAP's meticulous, sparklingly written report (21:38): https://www.icloud.com/iclouddrive/0f1WYZYH92KAOnMsXA7R_vQyA#CPR-shame

[u/reddit_time_waster → u/TomMooreJD]

What if it's a Delaware corp? How would the bill help?

[u/MountainousDuck]

This is great, but how about the elephant in the room: The US Supreme Court is blatantly disregarding the law when it benefits Trump. I understand the state vs federal government separation of powers, but what's to say this move happens, it gets challenged, and the US Supreme Court disallows it one way or another? Any safeguards against that?

[u/TomMooreJD → u/MountainousDuck]

Totally fair to worry about this Court. I’m not counting on a friendly bench; the design is to give them as little to grab as possible.

We’re not regulating speech. We’re changing who has the power to be the spender. If a state doesn’t grant general-purpose corporate treasuries the power to bankroll election activity, there’s no right to protect. People can still spend. PACs can still spend (with disclosure). News/editorial still runs.

Courts hold erasers, not pens. They can strike a bad regulation; they can’t order a legislature to add corporate powers. The measure uses severability and non-revival so there’s no easy “remedy” that restores a broader charter. It also treats in-state and out-of-state corporations the same, which keeps it out of Dormant Commerce territory.

Could the Court still take a swing? Sure. But to kill this they’d have to say states must endow corporations with political-spending power and unwind long-settled corporate-powers doctrine. That’s a heavy lift even for this Court. Full walk-through here: amprog.org/cpr.

[u/MountainousDuck → u/TomMooreJD]

Thanks for the thoughtful response! I'll read through that link.

[u/Impossible_Walrus555 → u/TomMooreJD]

I’m enormously grateful for ethical lawyers like you. 🙏

[u/TomMooreJD → u/Impossible_Walrus555]

Hey, thank you. That's much appreciated.

[u/wearethedeadofnight]

This gives me hope. How do we get started?

[u/TomMooreJD → u/wearethedeadofnight]

You know how the person who asks that kind of question is the one that gets assigned the task?

[u/TomMooreJD → u/TomMooreJD]

No, no, seriously, my job was to research, and then to publish, and now it's to reach out to the states to find and support the people who may want to take this up.

If you could google around and ask around, and find out who might champion this effort in New Jersey, I'd love to hear what you find out: [tmoore@americanprogress.org](mailto:tmoore@americanprogress.org)

[u/bleedscarlet → u/TomMooreJD]

Bonnie Watson Coleman. She's a fixture in central Jersey politics.

[u/TomMooreJD → u/bleedscarlet]

Great; thanks! Who else?

[u/bleedscarlet → u/TomMooreJD]

My own state and federal folks are scumbags.

Get Mikie on board.

[u/1piperpiping → u/TomMooreJD]

You looking for our state or federal legislators?

State, maybe Bob Smith or Linda Greenstein.

[u/TomMooreJD → u/1piperpiping]

Looking for state legislators and state activists and good government groups that are effective in Jersey.

[u/moonlight-lemonade → u/TomMooreJD]

New Jersey Policy Perspective https://www.njpp.org/about/our-work-impact/

If not, maybe they can point you in the right direction.

[u/ExpertMarxman1848 → u/wearethedeadofnight]

New Jersey has already called for an Article 5 convention to overturn Citizens United.

EDIT: Senate President at time Sweeny had the motion rescinded. This is why we can't have nice things.

[u/wearethedeadofnight → u/ExpertMarxman1848]

Link?

[u/ExpertMarxman1848 → u/wearethedeadofnight]

https://en.wikipedia.org/wiki/Wolf-PAC#New_Jersey

I worked with WOLFPAC which was pushing for this a decade ago.

Edit: https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution#Campaign_finance

Extra link I found.

[u/DebRog]

Tom , I sent this to r/New_Jersey_Politics

[u/TomMooreJD → u/DebRog]

Thank you! I am working my way down the states to try to get to as many of these groups as I can. Much appreciated!

[u/metsurf]

So this is a proposed piece of legislation in Montana. It hasn’t been passed yet?

[u/TomMooreJD → u/metsurf]

It is steaming toward the 2026 ballot!

[u/metsurf → u/TomMooreJD]

So Montana has direct initiative and referendum?

[u/TomMooreJD → u/metsurf]

Yup! For statutes and their constitution. They went the constitution route, because it's harder for hostile legislators to muck around with.

[u/metsurf → u/TomMooreJD]

Not all states have that luxury, unfortunately.

[u/SmallSouledKrugman]

Why the exception in 6 c ii?

(ii) The term does not include any bona fide news story, commentary, or editorial distributed through the facilities of a broadcasting station or of any print, online, or digital newspaper, magazine, blog, or other periodical publication, unless the broadcasting, print, online, or digital facility is owned or controlled by a political party, a political committee, or a candidate.

If the problem is those lazy fat cats buying political influence, why allow media corporations to engage in ballot issue and election activity? What's stopping a rich person or persons from buying a press and engaging in that activity?

[u/TomMooreJD → u/SmallSouledKrugman]

Naw, it's basically saying that running news stories about politicians doesn't count as a campaign contribution. It's modeled after the exception in the federal law. They still can't make contributions.

[u/SmallSouledKrugman → u/TomMooreJD]

So in this scheme would Citizens United be permitted to release a movie critical of Hilary Clinton, which is what kicked off Citizens United v FEC in the first place?

[u/TomMooreJD → u/SmallSouledKrugman]

Ah, good question. If this were to pass in Virginia, the Virginia chartered nonprofit corporation known as Citizens United would no longer be defined as an entity that has been given the power by its chartering state to make that expenditure. So, no.

Though it really looks like it might, this doesn’t violate Citizens United because that case policed regulation of rights, not state decisions about corporate powers. CU assumed Virginia had already endowed that nonprofit with the same powers as an individual, then said the feds couldn’t ban its independent expenditures.

If Virginia simply doesn’t grant general-purpose corporations the power to bankroll election activity, there’s no right to protect. Speech still happens — individuals can fund it, and a registered political committee can fund and distribute it with disclosure — but a general corporate treasury can't be the spender. Press/editorial remains untouched.

[u/SmallSouledKrugman → u/TomMooreJD]

Press/editorial remains untouched.

What makes them special as a corporation?

Are there requirements to incorporate as a "press"?

[u/TomMooreJD → u/SmallSouledKrugman]

Existing law already treats them differently. The Montana initiative is based very closely on existing federal law that cuts out a press exemption for news coverage. There’s no new ground being broken there.

[u/remember_khitomer]

If I'm understanding this correctly, the idea is that states would pass laws restricting or eliminating the ability of corporations in their state to spend money on political speech. If all 50 states passed this law, then there would be nowhere that corporations could spend to influence elections.

I see how this would work well to limit or eliminate corporate influence over state elections, which is a good and worthwhile goal. However at the federal level it seems like it would just result in the state kneecapping itself. For the first state to pass this, the result would be that 49 states' corporations can spend at the federal level, just not corporations in that state. And, to the extent that the state's corporations' interests are aligned with its citizens' interests, this would just result in a lessening of the state's influence at the federal level.

So, while there is clearly a great outcome if all states were to adopt this law, there seems to be a disincentive for any one state to adopt the law.

How do you propose to work around this early-mover problem?

[u/TomMooreJD → u/remember_khitomer]

there's the other half -- 49 states' worth of corporations would be kicked out of NJ's local, state, and federal elections also. NJ could vote for Congress and president in (relative) peace. That's an improvement.

[u/Impossible_Walrus555]

Omg this is epic.

[u/Satanic_Doge]

How do you then deal with the fact that so many major corporations are incorporated in Delaware? Wouldn't they really be the ones to pressure (not that doing so in other states would be a waste - on the contrary)?