Transparent Election Initiative

Cheryl Hays
1 day ago
3 min read

Posted by Tom Moore, Center for American Progress

Thursday, August 7, 2025

Topics: Campaign finance, Citizens United v. FEC, Montana Plan, Supreme Court

A bipartisan team of former Montana officials have unveiled an oddly simple yet startlingly robust legal mechanism for undoing Citizens United that pares back the list of corporate powers granted by state corporation law. They have drafted a constitutional initiative and are steering it toward Montana’s 2026 ballot.

Ever since the Supreme Court’s landmark decision in Citizens United v. Federal Election Commission in 2010, America has been told that only the Court or a constitutional amendment could stem corporate and dark money in politics. Not so.

Citizens United (558 U.S. 310) held that lawmakers cannot regulate a corporation’s right to spend independently in elections. But regulations are just one tool in the legislative toolbox. Another extraordinarily powerful tool has gone largely unexamined until now: every state’s virtually unlimited authority to define the powers it grants its corporations.

Corporations have only the powers that states give them—no more. States stopped being choosy about the powers they granted to their corporations in the mid-1800s. But every single state retained the authority to be as choosy as they like. Every single state retains the authority to decide to no longer grant its corporations the power to spend in politics.

No state has exercised its clear power to exclude political spending from the powers it grants its corporations. “Why not?” asks University of Chicago law professor Vincent S.J. Buccola. “One possibility is that the average legislator thinks cases such as Citizens United and Hobby Lobby were sensibly decided. This might be true—it is unlikely—but in any event it is uninteresting. Another possibility is that legislators do not know their own legislative authority. If so, maybe they will soon discover it.”

The Montana Plan, which was announced on June 18, is an attempt to ignite that discovery.

Under the Plan, Montana would no longer grant its corporations the power to spend money in politics. And because out-of-state corporations can only exercise the powers that domestic corporations can exercise, it would also remove political spending power from every out-of-state corporation that operates in Montana.

The difference between regulating rights and declining to grant powers is not semantic. It is doctrinal. It is foundational. And this may make The Montana Plan the most promising new strategy to eliminate corporate and dark money in politics since the day Citizens United was decided.

The Montana Plan

Under The Montana Plan, corporations would still be able to form freely and pursue their business goals under the power of Montana law. But they would do so without a power that the people of Montana had decided no state-created entity needs: the power to pour money into politics.

“Washington’s paralysis has left Americans cynical, but federal gridlock need not bind the states,” says Marc Racicot, former Montana governor and former chairman of the Republican National Committee. “By declining to hand out corporate political-spending powers from the outset, Montana can chart a constitutional course others may follow—showing that bold, effective, and principled reform is still possible across party lines.”

The constitutional initiative under development in Montana would revoke all previously granted corporate powers and then regrant them in a positive, carefully defined way, with political spending powers omitted.

This structure draws upon two centuries of Supreme Court jurisprudence regarding corporate powers. The Court has held that states may define, limit, or revoke corporate powers for any reason, or for no reason at all. “That body need give no reason for its action in the matter,” the Court held in Greenwood v. Freight Co. (105 U.S. 13, 17 (1882)). “The validity of such action does not depend on the necessity for it, or on the soundness of the reasons which prompted it.”

This doctrine applies with equal force to “foreign corporations,” those chartered out of state but doing business within Montana. As the Court held in Paul v. Virginia (75 U.S. (8 Wall.) 168, 181 (1869)), a corporation “can have no legal existence beyond the limits of the sovereignty where created,” and any other state may decline to grant it powers that are “prejudicial to their interests or repugnant to their policy.”

Montana’s draft initiative simply applies that doctrine. It extends no power to spend in politics to any domestic or foreign corporation, full stop. That would end corporate political activity within the state: local, state, and federal. And because all dark money flows through corporations organized under section 501(c) of the tax code, it would shut down all dark money in Montana’s politics as well.