[[link removed]]

MONTANANS GO AFTER ‘CITIZENS UNITED’  
[[link removed]]


 

Harold Meyerson
October 27, 2025
The American Prospect
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ A proposed 2026 ballot measure would limit the powers that the
state grants in its corporate charters. _

, Credit: Bill Clark/CQ Roll Call via AP Images

 

If anyone should wonder how Dashiell Hammett, the founding father and
greatest creator of hard-boiled detective fiction, went from being a
strikebreaking Pinkerton agent to a member of the Communist Party, a
short answer might be: Montana. Decades after his time as a Pinkerton,
Hammett wrote that the agency had sent him to Montana in the 1910s to
augment the state’s efforts to break strikes and attack union
members and leaders. The enlistment of state power on behalf of the
state’s all-powerful mining corporations later became the
background, and sometimes the foreground, of much of Hammett’s
fiction, particularly his first novel, _Red Harvest_.

Hammett wasn’t alone in his indignation about Montana’s government
doing (sometimes violently) the bidding of big business; Montanans
felt similarly. In 1912, they passed a law forbidding corporations
from contributing to political campaigns, a law that stayed on the
books for nearly a full century until it was swept away by the U.S.
Supreme Court’s ruling in _Citizens United_.

Most Americans have never warmed up to _Citizens United_, which
permits corporations to donate to election campaigns; some polls have
shown as many as 75 percent oppose it. But it’s Montanans who are
now putting forth an ingenious ballot measure that, while it
wouldn’t legally overturn that ruling (the Roberts Court would never
consider such a thing), would negate its consequences nonetheless.
Dubbing their proposal the Transparent Election Initiative
[[link removed]], they’ve begun work to present
state voters in November 2026 with a proposal that wouldn’t affect
corporations’ _rights_—which _Citizens United _extended to
buying elections—but rather their _powers_, which are created
exclusively by the individual states.

This argument—which, to the best of my knowledge, has never been
tried before—is laid out in a brilliant paper
[[link removed]] 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.

To make his case, Moore cites an entire library of Supreme Court
decisions dating back to 1819’s _Dartmouth v. Woodward_. In that
landmark ruling, which stands to this day, Chief Justice John Marshall
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.

Unlike humans endowed by their creator with certain unalienable
rights, corporations have zero powers, Moore notes, until state
governments confer those powers upon them. He also cites recent Court
rulings restating the unchallenged principle that it’s the states,
not the federal government, that have the authority to grant
corporations their powers.

Over the centuries, states have competed with each other to vest
corporations with expansive powers, but their power to limit as well
as define those powers has remained constant, though infrequently
invoked. Indeed, in his ruling in the _Hobby Lobby _case, which
enabled corporations to avoid providing health insurance covering
contraception to their employees on religious grounds, 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.”

Moore documents that states have frequently amended their charter laws
to withdraw specific powers from their corporations. Texas in 1876
stripped the power from banks to issue bills of credit, for instance,
or New Jersey in 1913 limited the power and scope of holding
companies.

But doesn’t changing one state’s law on corporate powers just
amount to a game of whack-a-mole? Since more corporations are
chartered in Delaware than any other state, what good would it do for
Montana to change its law if Delaware doesn’t?

In fact, a whole lot of good. Moore cites an 1869 Supreme Court ruling
saying that “foreign corporations”—which in this context means
corporations chartered in other states, not in other nations—must
comport with the corporate charter law of every state in which they do
business. If Montana enacts the ballot measure in 2026 that forbids
the corporations it charters from campaign spending, that law would
also require corporations chartered in Delaware or any other state to
abide by the Montana law’s provisions on powers granted and powers
withheld when it did business—or tried to influence an election—in
Montana.

Moore runs through a host of arguments against his case, relying on
the Constitution’s Tenth Amendment—which reserves powers not
stipulated in the U.S. Constitution (such as the power to charter
corporations) to the states—and on the distinction
between _powers_ (which in this case are the creation of state
governments) and _rights _(which was the subject of the Court’s
ruling in _Citizens United_).

I claim precisely zero expertise in such matters, but to my mind,
Moore certainly makes a compelling case. At minimum, that the Court
would have to overturn more than 200 years of American jurisprudence
should Montanans vote to change their law on corporate charters and
see the Court then strike it down. If there’s one thing we know
about the six Republican justices on the Court, it’s that
overturning 200 years of American law would present no obstacle to
their ruling that corporations can do anything they damn well please.
Still, if they opt to go that route, they’ll almost surely lower
their public approval rating from low double digits to bare single
digits. Regardless of what the current Court may do, a new Montana law
on corporate powers—particularly if other states follow Montana’s
lead—can propel the public discourse, in this populist moment, in
the direction of a more egalitarian politics and, eventually, even a
less wealth-beholden judiciary.

_HAROLD MEYERSON is editor at large of The American Prospect. His
email is [email protected]._

* Citizens United
[[link removed]]
* Montana
[[link removed]]
* ballot initiatives
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]