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, 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 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].
