By John Q. Hosedrinker 
A state Senate bill, SB 2471, proposes to make the controversial Citizens United campaign finance law irrelevant in Hawaiʻi by redefining corporations as “artificial persons” created by state law. This redefinition would clarify that their granted powers do not include spending money to influence elections, thereby challenging super PACs and their opaque funding. While the bill has advanced through the Senate and one House committee, the Attorney General’s office opposes it, citing potential constitutional concerns and litigation risks. Supporters, however, believe the bill aligns with the state’s authority to define corporate powers and could lead to greater transparency in political donations.
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The question of whether Hawaiʻi can deliver all of America from the implications of the *Citizens United* Supreme Court decision is a complex one, but there are promising developments emerging from the Aloha State that suggest a potential pathway. At its core, Hawaiʻi’s Senate Bill 2471 aims to reassert the understanding that corporations are “artificial persons” created by state law, possessing only the powers and privileges that the state bestows upon them. This bill explicitly seeks to clarify that these granted powers do not include spending money or contributing anything of value to influence elections or ballot measures, directly challenging the premise that such spending is protected political speech for corporations.
This initiative in Hawaiʻi is not entirely unprecedented, as other states have taken similar steps to enhance transparency and accountability in elections. Montana, for instance, enacted a comparable law in August, signaling a growing movement among states to push back against the broad interpretation of corporate speech rights. The success of Arizona’s Proposition 211 in 2022, known as the Voters Right To Know Act, which requires significant disclosure of campaign funding sources, also highlights a public appetite for greater clarity in political financing. These efforts collectively demonstrate a recognition that while *Citizens United* may have opened the door to unlimited corporate spending, states are exploring ways to regulate the entities they charter.
However, the scope of Hawaiʻi’s potential impact is a subject of much discussion, with some expressing skepticism about its ability to affect corporations incorporated in other states. It’s argued that Hawaiʻi can define the powers of corporations chartered within its own jurisdiction, but it cannot dictate the legal standing or activities of corporations incorporated elsewhere, such as in Delaware. The concern is that the number of Hawaiʻi-incorporated companies significantly influencing national politics might be limited, thus capping the direct national impact of any state-level law.
Yet, even if the direct legal reach is confined, the symbolic and precedential value of Hawaiʻi’s actions cannot be overstated. The state’s historical relationship with corporate power might lend a unique moral authority to its efforts, potentially inspiring a cascade of similar legislative initiatives across the nation. The idea that a state, particularly one with a history of grappling with corporate influence, would lead this charge is seen by many as a powerful statement for democracy.
The core of the legal argument against *Citizens United* often hinges on the nature of corporate personhood and the source of corporate powers. Unlike natural persons, corporations are artificial constructs granted specific rights and responsibilities by the states that charter them. Therefore, the argument goes, states can choose not to grant corporations the power to spend money on elections, as this power is not an inherent right but a granted privilege. This perspective emphasizes that corporations are not literal people, but rather “super organisms” or entities whose existence and attributes are defined by state law, and thus controllable by it.
The current legal landscape, shaped by Supreme Court interpretations, suggests that overturning *Citizens United* would likely require either a constitutional amendment or a future Supreme Court ruling that explicitly reverses the precedent. The reasoning behind *Citizens United* posits that political contributions are a form of protected speech under the First Amendment, and that individuals do not forfeit their free speech rights by organizing as a corporation. This interpretation is seen by some as flawed, particularly the notion that corporations possess the same fundamental rights as individuals, especially when it comes to spending unlimited sums to influence elections.
Moreover, there is a fundamental philosophical question about whether corporations should be considered “persons” in the same way that individuals are. Critics point out that corporations possess characteristics fundamentally different from natural persons – they can disappear or exist indefinitely, and they cannot be subjected to the same forms of accountability, such as imprisonment or physical punishment. This distinction fuels the argument that the rights and protections afforded to individuals should not automatically be extended to artificial entities like corporations, particularly when it comes to political influence.
The potential for Hawaiʻi’s law to be challenged on constitutional grounds is significant, especially if it is perceived as discriminatory content-based regulation. If such a law were to restrict corporate spending on political campaigns while allowing other forms of corporate speech, it could face legal hurdles. The key lies in framing the legislation not as a restriction on speech itself, but as a denial of a specific power – the power to influence elections – that states are within their rights to withhold from the entities they create.
Ultimately, while Hawaiʻi’s legislative efforts are a crucial step and a powerful demonstration of state-level initiative, whether they can “deliver all of America from *Citizens United*” depends on a multitude of factors. It requires sustained legal battles, potential future Supreme Court reconsiderations, and the willingness of other states to adopt similar frameworks. However, the emergence of such forward-thinking legislation in Hawaiʻi offers a beacon of hope, providing a tangible blueprint and a moral compass for those seeking to restore balance to the American political landscape.