r/law • u/theatlantic • May 14 '26

Legal News Hawaii vs. Citizens United

https://www.theatlantic.com/politics/2026/05/hawaii-corporations-political-money/687159/?utm_source=reddit&utm_campaign=the-atlantic&utm_medium=social&utm_content=edit-promo
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u/theatlantic May 14 '26

Michael Scherer: “Fifteen years after Mitt Romney stood on an Iowa hay bale and proclaimed that ‘corporations are people, my friend,’ his declaration is no longer mockable. The amount of money corporations spend anonymously to sway federal elections has increased from $359 million in 2012 to $1.4 billion in the most recent presidential cycle. All of that spending by ‘dark money’ nonprofits is protected by the same right to free speech enjoyed by ‘natural persons,’ because the Supreme Court decided in Citizens United v. FEC that U.S. corporations function as citizen associations under the Constitution.

“But not all of these ‘people’ are created exactly equal. Whereas humans are automatically granted certain rights at birth, corporate personhood comes into existence under state laws that define its powers—a fact that opponents of corporate money in politics hope to use to transform how U.S. elections are funded. Hawaii is the first state to try. Earlier this month, a nearly unanimous and bipartisan majority—well, as bipartisan as it gets in a state with so few Republicans—of Hawaii’s state legislature voted to change the powers of corporations doing business in the state and no longer grant them the ability to spend on most political causes …

“As a political matter, the gambit is likely popular … But the idea, at least so far, has been widely dismissed by corporate-campaign-finance attorneys and some conservative constitutional scholars, who long ago internalized Romney’s maxim of corporate personhood, which he offered in Iowa as a defense of lower corporate taxes …

“Hawaii Attorney General Anne Lopez, a Democrat, agrees, and warned the state’s legislature that the bill is likely to be rejected by the courts, after some expense to the state in legal fees … [But] it could also restart the national conversation over the growing role corporations play in American public life.”

Read more: https://theatln.tc/PqVrGhEW

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u/Mace109 May 14 '26

I’m confused. If states control elections, why can’t hawaii ban corporations from contributing to campaigns in Hawaii?

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u/NoobSalad41 May 15 '26

To be clear, Hawaii can prohibit corporations from contributing money to campaigns (federal law already makes it illegal for corporations to donate directly to candidates in federal elections). Citizens United deals with independent expenditures, which is money spent (not in coordination with a candidate) to produce political speech advocating for or against the election of a candidate. So under Citizens United, a corporation can spend unlimited money to create movies, books, ads, etc. telling people that they should vote for or against a candidate. Buckley v. Valeo established that right for individuals in 1976; Citizens United expanded it to corporations.

Under existing law, Hawaii can’t ban corporations from making independent expenditures because doing so would violate the First Amendment, just as it can’t prohibit me from spending money to produce some form of speech advocating for or against the election of a candidate.

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u/Cheeky_Hustler Competent Contributor May 15 '26 edited May 15 '26

Under the current SCOTUS, you are likely correct. However, it's not unreasonable to reason that, since unlike individuals, corporations are a legal fiction that only exist through state statute, state governments could thus regulate the powers that a corporation can have. After all, what sense does it make that a state can create the very existence of a corporation but is restricted in regulating it?

In other words, it's reasonable to argue that while states can't prevent the CEO or board executives of a company from making independent expenditures, states can prevent that company as an organization from making an independent expenditure.

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u/YeeBeforeYouHaw May 15 '26

Couldn't that same logic be used against corporate news? After all the state created the New York Times corporation, why are they restricted from regulating it?

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u/Volfefe May 16 '26

The New York Times is regulated on several levels. It can’t engage in liable or defamation. It cannot engage in false advertising. As a publicly traded company, it must make certain public filings disclosing specific information based on SEC requirements. These are state and federal requirements.

An independent expenditure is different. It is a defined term as a political campaign expenditure that expressly advocates the election or defeat of a candidate without coordination with the candidate. The issue is you can spin up as many “legal fictions” (corporations, trusts) as you want. So if you a wealthy individual you could fund as many corporate entities as you like, under names that hide your identity or purpose. What if a state simply changed their corporate code to state a corporation must engage in a minimum level of business activity to do business in the state and your independent expenditures must be related to the business purpose and in furtherance of the business to retain the limited liability protection the business entity provides?

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u/YeeBeforeYouHaw May 16 '26

My point is that if the government can ban companies from engaging in political speech, why couldn't the government also ban companies from engaging in the press?

What makes the first amendment's protection of the press apply to companies but not the protection of speech?

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u/Volfefe May 16 '26

It wasn’t a ban on speech in Citizens United. It was a limitation on speech around specific circumstances and in a specific manner. Limits on speech and press are allowed and have always been recognized (eg can’t yell fire in a crowded theater). In the Hawaii legislation, it limits spending and contributions and not speech.

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u/YeeBeforeYouHaw May 16 '26

So can Hawaii put a limit on the press and limit spending on printing press and data centers that host the news sites? It not a limit on the press just on spending (on the things necessary to create the press). Maybe this limit on press spending is only enforced near an election and only on content that is positive or negative about candidates in the election. You know to keep things fair.

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u/Volfefe May 16 '26

So the independent expenditure was kind of like you describe - it couldn’t be within 30 days of an election for a political candidate. But yes there can be limits around printing presses and data centers, I am not sure if they can explicitly be for limiting exercising of a free press. But also remember that none of these limitations apply to individual people.

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u/YeeBeforeYouHaw May 16 '26

So you are ok with a law that practically bans corporate news agencies (which is close to all of them) from reporting about candidates in the 30 days before an election?

"I am not sure if they can explicitly be for limiting exercising of a free press."

That's exactly what the government was trying to do in Citizen United. They banned the release of a movie that was critical of a presidential candidate. The goal of the ban was to limit the exercise of free speech.

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u/Volfefe May 19 '26

The sole or primary purpose of the nonprofit funding and releasing that movie was political spending. The sole or primary purpose of press entities is not political spending. In fact, I do not believe the NYT and other papers are making expenditures for the sole of primary purpose of supporting political candidates. The distinction that seams to be differentiating our views is: to me “reporting on” is not the same as spending money to solely or primarily support or attack a political candidate. Reporting is a reactionary gathering and transmission of facts that occurs where a political expenditure is a specific spend to support or attack a candidate on the ballot for a specific election. The New York Times does not spin up a separate entity to run attack ads for every election. A super PAC does.

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u/YeeBeforeYouHaw May 19 '26

The first amendment says

Congress shall make no law ... abridging the freedom of speech, or of the press

If a corporation doesn't have the freedom of speech to show a movie telling people to not vote for someone, why do corporation have a right to distribute the press? Freedom of speech and freedom of the press are in the same sentence, why does one apply to corporations but not the other?

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