Lawmakers in Hawaii and citizens in Montana are forging ahead with a novel legal strategy aimed at cutting off corporate and dark money spending on elections, the latest attempt by states to push back against a Supreme Court ruling that has transformed American political spending. On Friday, the Hawaii Legislature sent a bill to Gov. Josh Green that would redefine corporations under state law to bar them from spending on candidate campaigns and independent expenditures, while still permitting lobbying. Separately, a volunteer group led by former Montana commissioner of political practices Jeff Mangan is gathering signatures to place a similar measure, branded the Montana Plan, on the November ballot.
The efforts come more than 15 years after the Supreme Court’s Citizens United v. Federal Election Commission decision struck down the ban on corporate and union spending on political advocacy, as long as the money is not given directly to candidates. Since then, spending by outside groups — including so-called dark money organizations that do not disclose their donors — has surged. OpenSecrets tracked more than $4 billion in outside spending during the 2024 federal elections, nearly twelve times the total in 2008. The Brennan Center for Justice reported that dark money alone reached a record $1.9 billion in the same cycle, influencing state-level races as well as federal ones.
The state measures are rooted in a proposal advanced by Tom Moore, a former lawyer for the Federal Election Commission who is now a senior fellow at the Center for American Progress, a Washington, D.C., think tank. Moore’s approach would redefine what a corporation is under state law, explicitly authorizing them to lobby policymakers but prohibiting them from spending money to influence elections. The prohibition would also extend to the nonprofit entities often used as vehicles for dark money spending.
“This is a genuinely new approach to getting Citizens United out of America’s politics that is based on absolutely foundational corporation law,” Moore said. If just one state adopts it, he added, the measure would be tested in court.
In Hawaii, Sen. Karl Rhoads, a Democrat who introduced the legislation, said the bill gives a small state an opportunity to “make big waves on the national scene.” He urged Gov. Green to sign it. But the state’s attorney general, Anne Lopez, a Democrat, opposed the measure, arguing in legislative testimony that it would be difficult and costly to defend in court. Green has until June 30 to signal whether he intends to veto the bill.
In Montana, the ballot initiative cleared a key legal hurdle in April when the state Supreme Court ruled that the effort could proceed despite a challenge from Republican Attorney General Austin Knudsen, who had argued it violated the single-subject requirement for ballot measures. Mangan, who served as Montana’s commissioner of political practices, said the proposal resonates with voters. “It really resonates with citizens,” Mangan said. “They probably see it because they live it.”
Legal experts are divided over whether the strategy would survive court scrutiny. Bradley Smith, a former Republican member of the FEC, called the approach a “semantic lawyerly trick” and predicted lower courts would reject it as an attempt to circumvent Supreme Court precedent.
“The mistake I think supporters of this are making is thinking you can ignore the substance of a Supreme Court ruling by semantic lawyerly tricks,” Smith said. He also warned that companies might simply withdraw from states that adopt such restrictions rather than curtail their political spending.
Justin Levitt, a professor at Loyola Law School who studies campaign finance, said he was unsure about the outcome but confident the high court would eventually weigh in. “The one thing I am absolutely sure of is if it got the signatures and is passed by the Montana public and is approved by the Montana courts, that the Supreme Court will want a crack at it,” Levitt said. He also noted that wealthy individuals now far outspend corporations, raising questions about how much difference the corporate redefinition would make in practice.
Similar bills have been introduced in at least 14 other states but none have advanced as far as Hawaii’s, according to Moore. Proponents hope that even a single state adopting the measure would generate the legal test needed to challenge Citizens United.