Constitution

Creative States Attempt and End Run Around Citizens United

Published on by Brynne VanHettinga

Campaign finance reform is an issue that has supporters on both the left and the right. We the People are waking up and connecting the stranglehold of big money on our electoral process with the fact that we have been working harder for decades with stagnating wages and skyrocketing costs of necessities. According to Public Citizen, as of September 2025, 22 states plus Washington DC have called for a Constitutional Convention to overturn the disastrous Citizens United decision. While this route has potential, it also faces significant barriers. However, two states—ruby red Montana and mostly blue but sometimes purplish Maine—are leading the way with creative strategies that don’t involve directly overturning Citizens United.

In the early days of American corporations, states granted charters for public projects that required large infusions of capital and labor that was beyond the resources of a local jurisdiction or even the state itself. These early corporate charters were the first form of public-private partnerships: They were usually limited in both purpose, scope and time; i.e., for the building of bridges, canals and railroads, with strictly defined rights and obligations (e.g., the right to sue and be sued).

As creatures of state statute, the states had authority to regulate these corporations.  In the 1819 case Trustees of Dartmouth College v Woodward (17 U.S. 518)—considered to be the foundational  Supreme Court case on the nature of corporations—Chief Justice John Marshall articulated this theory: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law…the objects for which a corporation is created are universally such as the government wishes to promote.”

However, as time went on corporations, with their cadre of lawyers and lobbyists, expanded allowed corporate activity to “any lawful purpose,” as well as granting them limited liability and perpetual lifespans. The only way to end the existence of a corporation is through revocation of its state charter. In the late 19th and early 20th century, state revocation of corporate charters was much more frequent than it has been in the latter half of the 20th and early 21st centuries. This is due to the stranglehold that wealthy individuals (the majority of corporate owners and shareholders) have over our political processes.

Two of the most infamous pro-corporate Supreme Court decisions were decided on the flimsiest of record and rationale. The first suggestion of corporate “personhood” appeared in a headnote (i.e., NOT part of the formal opinion) authorized by Justice Morrison Waite in the 1886 case Santa Clara County v Southern Pacific Railroad (118 U.S. 394), which involved the tax assessment authority of the State Board of Equalization. Waite stated, “The Court does not wish to hear argument on the question of whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are of the opinion that it does.” With the assistance of armies of lawyers in corporate law firms, this tangential, unsupported statement thus became a cornerstone of corporate law.

The second decision was the infamous Citizens United v. Federal Election Commission, 558 U.S. 310, in 2010. Here again, the Court manufactured a “facial challenge” that was not presented by the parties, who were only requesting that publication of a documentary disparaging of Hillary Clinton be allowed within 30 days of the 2008 primary elections. The Citizens United court overturned a contrary split decision issued in 2003 (a challenge to the 2000 bipartisan Campaign Reform Act in McConnell v F.E.C., 540 U.S. 93). Previously, the Court had made a distinction between campaign expenditures (which were protected by the First Amendment as political speech) and campaign contributions. Contributions could constitutionally be limited because they presented a real danger of quid pro quo bribery. The fallacy of Citizens United was that the separation of contributions to super PACs that were “unaffiliated” with a specific candidate miraculously avoided the quid pro quo contribution problem.

The Montana Plan

Montana takes the approach of regulating state corporate charters more like they were in the early 19th century. Under the Montana Plan, (aka Transparent Election Initiative), all corporate charters issued in the state would expressly prohibit corporations chartered in Montana from making contributions to elections or ballot issues. This would not only apply to corporations chartered in Montana, but also to out-of-state corporations seeking to do business in Montana.

The Montana Plan , which will appear as a ballot initiative in the 2026 elections, reads:

“[Number] would amend Article XIII of the Montana Constitution to redefine the powers of artificial “persons,” including corporations. It defines their powers as only those the constitution expressly grants and provides that artificial persons have no power to spend money or anything of value on elections or ballot issues. It affirms that the people of Montana never intended for artificial persons to have the power to spend on election or ballot issues. [Number] provides that actions beyond those expressly granted powers are void. The initiative permits political committees to be granted the power to spend on elections and ballot issues. It allows enforcement through forfeiture of state-conferred privileges. The initiative includes a clause that ensures that valid portions of the initiative remain effective even if other parts are invalidated.”

So, how does the Montana Plan get around Citizens United? Sometime around the beginning of the twentieth century, states all but abandoned imposing limits on corporate charters. That is, nearly every corporation formed (or re-organized) since then is empowered to engage in “any lawful purpose,” without any express limits. The Citizens United decision thus applied to such fully empowered corporations. Montana is simply taking back the state’s power to limit corporate activity—a power which heretofore has NOT been overturned by the Supremes. It is past time to once again make corporations servants of the People—as exercised through state power—and not the oligarchy.

We can already hear the howls from the corporatocracy that this initiative will “kill” business in Montana. We will see what Montana voters do. If the Montana Plan is approved by Montana voters and survives the (near certain) ensuing court challenges, it could point the way for other states to follow.

Maine challenges the fallacy of “independent” contributions

In 2024, nearly 75% of Maine voters approved a ballot measure that limited contributions to super PACs (also known as “independent expenditure PACs) to $5,000. It also requires disclosure of all contributions. Not surprisingly,  a couple of super PACs with the faux-populist names of Dinner Table Action and For Our Future (along with various associated individuals) challenged the new (real populist) law in a Maine Federal District Court. The District Court tossed the case based on the logic of Citizens United. The Defendants—officials from the Maine Commission on Government Ethics and Election Practice, the Maine Attorney General, Equal Citizens (the group who promoted the ballot initiative), and various associated individuals appealed. The case is now in the US First Circuit Court of Appeals, Case No. 25-1705.

The case has generated a lot of interest, along with a plethora of amicus briefs. The Chamber of Commerce submitted an amicus brief in the trial court.  At the Appellate Court, amicus briefs for Defendant-Appellants have been submitted by the Campaign Legal Center, the Brennan Center for Justice, Citizens for Responsibility and Ethics in Washington (CREW), Demos, and Mainers for Working Families (represented by Free Speech for People). Ironically a friendly (to the People) amicus brief was also submitted by a group of five billionaires (including Mark Cuban) arguing that large contributions to super PACs can facilitate corruption.

The Defendants’ arguments hark back to earlier campaign finance jurisprudence—(Buckley v Valeo, 424 U.S. 1 (1976) and McConnell v F.E.C., 540 U.S. 93 (2003)—that distinguished campaign expenditures (which directly implicate free speech and are subject to exacting scrutiny) and contributions, which are subject to a lesser “closely drawn” scrutiny due to the government’s interest in preventing both corruption and the appearance of corruption. This distinction was never expressly overruled in Citizen’s United; rather, it was (naively, in the opinion of many, this writer included) presumed that the lack of coordination between candidates and super PACS magically prevented the possibility of quid pro quo.

The Defendants point to the Menendez case (discussed infra) and other post-Citizens United bribery cases that expose the fallacy of this logic. Dinner Table Action’s three top contributors are other PACs, all funded almost entirely by the Concord Fund (fka the Judicial Crisis Network), which is connected to a network of groups led by Leonard Leo and the Federalist Society. None of these super PACs disclose their funders, which makes it nearly impossible to trace the money. Indeed, contributions to a super PAC—like contributions to any other third party made by a donor at the behest of the candidate—may be part of a quid pro quo corrupt agreement even if the super PAC itself is ignorant of the corrupt agreement. The Defendants cite a 2024 F.E.C. Advisory Opinions permitting PACs to coordinate canvassing and literature scripts with candidates and even allowing candidates to headline super PAC fundraising events to solicit contributions.

Most of us are (at least vaguely) aware that former U.S. Senator (D-NJ) Bob Menendez was convicted of bribery, wire fraud and extortion in July 2024.  Although Menendez attempted to shift all the blame onto his wife (who was also convicted for similar crimes in April 2025) and described the gold bars and cash found in his home as “gifts,” a Manhattan jury found him guilty on all counts. What many folks may not realize is that Menendez had been previously indicted on various corruption charges in 2015. Although most of these charges were dismissed, Judge William Walls did not dismiss charges related to super PAC contributions that were solicited by Menendez. The case went to trial in 2017, but ended in a mistrial because the jury could not come to a unanimous verdict.

In the earlier case, Menendez attempted to argue that Citizens United protected a $700,000 donation to Senate Majority Super PAC from one of Menendez’s cronies. In his decision allowing the bribery charge to go forward, Judge Walls argued that there is no First Amendment right to engage in quid pro quo bribery, and so Citizens United did not apply.   “Defendants are correct that attempts to influence a public official through speech alone are protected. But the Constitution does not protect an attempt to influence a public official’s acts through improper means, such as the bribery scheme that has been alleged in this case. The government has adequately alleged that Melgen made contributions in an effort to control the exercise of Menendez’s official duties, and the truth of these allegations is a question of fact.”

This decision suggests that a donation to a super PAC can constitute federal criminal bribery (i.e., a quid pro quo) if there is sufficient evidence to prove it. Some legal pundits suggested that this created a direct conflict with the logical fallacy in Citizens United that independent expenditures were not inherently corrupting. Others argued that there was no conflict so long as a prosecutor was able to “bring the receipts” to prove an agreement with a candidate to make a contribution to a super PAC. Paul Ryan, senior counsel at the Campaign Legal Center remarked that, “Judge Walls stated the obvious. This is something we’ve all known for years. It was predictable that when super PACs were created in 2010 that contributions could lead to corruption.”

The arguments in these challenges focus on the interest of the state/government in preventing corruption of public officials. What tends to get less scrutiny (due to a paucity of precedent addressing it) is the threat posed to democracy itself: The involvement of super PACs in an election is often more outcome-determinative than the candidate committees themselves. In 2024, some 97.94% of contributions to super PACs came from the top 1% of donors. In Maine, the Democratic Governor’s Association contributed $9.2 million, which was almost wholly funded by Better Maine PAC. The Maine Families PAC contributed $2.9 million, which was wholly funded by a single individual in New York. Last but not least, are the hundreds of millions of dollars flowing through super PACs that funded the 2024 election of Donald Trump, including $260 million from Elon Musk—whose companies have enjoyed both regulatory favors and contracting advantages from the Trump administration. While quid pro quo corruption is the most obvious concern, the huge sums flowing into elections through super PACs come from a small number of obscenely wealthy individuals. Whether criminal-level corruption ever happens or not, the voice of “the People” never gets heard among the flood of big money in elections.

The attorneys representing Mainers for Working Families, along with Harvard Law School   Professor Larry Lessig, are optimistic about the Maine case’s chance of success. Lessig argues that Bob Menendez actually “did the thing that Citizens United said could not happen, which proved false” the fundamental assumption of Citizens United—that bribery could not happen through the independent expenditures of a super PAC. In spite of the optimism, Lessig nonetheless warns that it is “easy for this court to do the wrong thing…Many people are cynical about the Supreme Court, but this would require them to extend their own decision beyond logic.” (And, as we have seen, the Federalist Six have no compunction to follow either logic or precedent.)

Both the Maine case and the Montana Plan are worth following. These days we need all the hope we can find. At the same time, we need to keep up the ongoing efforts to overturn Citizens United. Wherever it comes from, We the People need to change the narrative: Money is not speech, it is power—power of the oligarchy to drown the voices of the People and kill or corrupt democracy.

 

The Perils and Promise of an Article V Convention

Published on by Brynne VanHettinga

Today—when our Constitution, the rule of law, the common welfare, and even truth itself is under constant attack—our instinct is to protect and preserve this nearly 250-year experiment in democracy, particularly our Constitution. Our Constitution was the first of its kind—a blueprint for rule by the “people” and not a king. The founders also anticipated the corrupting influence of power, building in a system of checks and balances. And while there is much we should want to preserve, we must also be mindful of where we have fallen short of the ideals contained in our founding documents.

“Baked into” a document that declared its commitment to freedom, equality and “power of the people” was the glaring inconsistency that not all people were recognized as equal. Moreover, there was a concerted effort to protect the rights of property—rights which hypocritically included the ownership of other human beings. This original flaw has haunted our nation until this time, resulting in a system that—for all its rhetoric about equality and democracy—serves the wealthy and privileged at the expense of the welfare of the People. This same tension—between the demands of the privileged and powerful versus those of the People—continues to affect Constitutional jurisprudence today.

The urge to preserve comes from both the right and the left: Conservatives claim to revere the Constitution as “originalists,” while progressive groups like Common Cause have thwarted almost 150 calls for an Article V Convention from the states to amend it. Notwithstanding some conservative arguments that the original framers intended for the Constitution to be immutable for all time, the founders actually built in a procedure to change it. This is the amendment process, which is found in Article V. This process is designed to make change difficult–avoiding wild swings with every shift in direction of political winds—but not insurmountable. Indeed, our Constitution has been amended twenty-seven times, with the 21st Amendment actually repealing the 18th Amendment prohibiting the possession, importation or transportation of “intoxicating liquors.” Repeal of a prior Amendment has to pass the same stringent tests as adding it.

The Provisions of Article V

Article V provides two paths to Constitutional amendment. The first goes through Congress (the Congressional path), and it requires a two-thirds majority vote of both Houses. If the proposed amendment passes this threshold, it must then be ratified by the legislatures of three fourths of the states. The second path goes through the states: Because our nation was cobbled together from a loose federation of previously independent states, the founders provided another way to amend the Constitution, allowing the states to bypass a potentially recalcitrant Congress. In this method, two-thirds of state legislatures (currently 34 states) could also call a “Convention for proposing Amendments.” Any Amendments thus proposed also had to be ratified by three fourths (38) of the states, or “by Conventions in three-fourths thereof.”

Historically, the only Constitutional Convention that has ever been held was when the original Constitution was drafted and presented to the original 13 states. After uniting to defeat the King of England, the former colonies (now states) were more interested in local affairs, being loosely committed to each other by the Articles of Confederation. However, the newly independent states discovered that there were logistical gaps in how to regulate interstate commerce and transportation, international trade, and multiple different currencies, as well as how to raise funds to pay off war debts.

Some historians believe that the driving impetus for the first Constitutional Convention was Shay’s Rebellion in Massachusetts—a group of indebted farmers who took possession of courthouses when banks attempted to foreclose on their farms. Because the Massachusetts state militia was unable to quell the rebellion, “men of property” (bankers and large landowners) wanted to create a militarized force large enough to keep a disgruntled rabble in its place. The way to do this was to create a stronger organized entity committed to preserving the rights of property.

Congress authorized the Convention on the premise that its purpose was to make suggestions for changes to the Articles of Confederation. Twelve of the thirteen states sent Delegates to the Convention (which was held in Philadelphia from May to September in 1787), with the exception of Rhode Island. Rhode Island was the last state to ratify the new Constitution. NO Constitutional Convention has ever been called since, as all twenty-seven Amendments have been proposed by Congress. Currently, 38 states are required to ratify any new Amendment, regardless of which method it is proposed.

As we know from history, the Delegates to the 1787 Convention completely disregarded the recommendations from Congress that their purpose was solely to amend the Articles of Confederation. Indeed, the Convention itself was conducted largely in secret, where the Delegates even sealed the doors and windows of Independence Hall to ensure that “no outside public pressure” would interfere with the debates.

What Powers Does Congress Have if the States Call a Convention?

What are Congress’ powers with respect to setting the rules for a Convention called by the states? Under the express terms of Article V, Congress “shall” call a convention when it has received the required number of applications (34) from the states. While Congress has the power to call the convention, once the convention is convened, the Delegates are free to make whatever rules they want. There is debate about whether Congress has any further authority once a Convention has been called. There is also disagreement about whether states have the power to limit the scope of an Article V Convention (e.g., to a particular subject matter). Additionally, there remains  a legitimate concern about whether a Convention could become “runaway” and exceed its original scope—as the first one did.

The 27th Amendment was proposed in 1789, but not ratified until 1992. The 27th Amendment prohibits Congress from raising its own salaries until after the next election, to ensure that pay raises have been subject to some form of voter approval. This precedent suggests that there are no time limits for ratification, although the admission of additional states into the Union in the interim would now require a higher threshold of ratifying votes. For example, the number of states needed for ratification could increase to 39 if both Puerto Rico and Washington DC became states.

The Equal Rights Amendment—a guarantee of equal legal rights regardless of sex—was proposed in 1923 but did not pass in Congress until 1972. In 2020, Virginia became the 38th state to ratify the ERA. However, the ERA would not become law due to the fact that Congress had imposed a ratification deadline of 1982, and so the National Archives declined to publish it.  Whether Congress’ imposition of a ratification deadline is itself “Constitutional” is an as-yet-unanswered legal question.

What Types of Amendments Have Been Proposed by the States?

Since the first Convention that created our Constitution, no Article V Convention has ever been called, as all 27 Amendments were added via the Congressional path. However, many attempts have been made to propose various amendments via the route of a Convention. One estimate is that there have been over 700 applications, with every state except Hawaii submitting an application at one time or another.

Although we have never reached the two-thirds threshold to call an Article V Convention, there are a few issues which have seen significant activity.

In 1949, following the end of World War II, six states (CA, CT, FL, ME, NJ, NC) proposed an Amendment to “enable the participation of the United States in a world federal government.” A concern for maintaining peaceful international relations had already led to the creation of the United Nations in 1945. Conversely, this also fueled previously circulating conspiracy theories among right-wing populists about a “New World Order” or “one-world government” run by global elites.

Between 1975 and 1979, thirty states petitioned for a balanced budget amendment in response to increasing federal deficits. By 1983, the number of applications had reached 32, which came close, but did not rise to the requisite two-thirds to call a Convention. But this movement has never really died, and continues to see periodic activity.

More recently, at least 19 states and more than 700 cities and municipalities have been active in proposing an amendment to overturn the disastrous Citizens United decision in 2011. One resolution reads, “Corporations are not people. They have none of the Constitutional rights of human beings. Corporations are not allowed to give money to any politician, directly or indirectly. No politician can raise over $100 from any person or entity. All elections must be publicly financed.”

The Perils

The main problem with an Article V Convention is that there are very few rules about how this should happen, as well as practically zero precedent. At the time Article V was drafted, there were a number of Delegates who desired that the previously independent states be allowed an end run around Congress if such became necessary. One unanswered question is whether a Convention would (or could) be limited to a single issue, or could Delegates propose anything and everything without prior notice. Another unanswered question is how Delegates would be selected. There is no requirement that the state Delegates be elected (as legislators are), which means they could be totally unaccountable to the People.

In 1971 and 1973, former Senator Sam Erwin (D-NC) sponsored legislation to enact a statute regulating how an Article V convention would be conducted. Although Erwin’s bill passed the Senate unanimously both times, it died in the House Judiciary Committee. During the late 1980s through 1991, similar legislation was proposed by Senator Orrin Hatch (R-UT), but it, too, went nowhere.

The most activity (and most threatening to democracy) has come from an organization called the Convention of States (COS). Mark Meckler, the founder of COS is a former founder of the Tea Party Patriots. Other organizations that have been heavily involved with the Convention of States/Citizens for Self-Governance are the Heritage Foundation (of Project 2025 infamy) and the American Legislative Exchange Council (ALEC). These groups are known to promote the interests of the wealthy and corporations as opposed to the interests of working people. They have proposed an “aggregated strategy” where a Convention could hear multiple unrelated applications. Subjects being proposed by this group are (1) requiring a balanced budget; (2) requiring the states to approve increases in the national debt; (3) repealing the 16th Amendment and requiring a supermajority to impose taxes; (4) restricting the scope of the Commerce Clause; (5) imposing Congressional term limits; and (6) giving the states power to abrogate any federal law, regulation or executive order. Thankfully, the re-legalization of slavery was not on the list.

The problem with our system as it exists now (which is not limited to the Constitution itself) is that it is totally dominated by the will of the wealthy and privileged, while the voices of ordinary working people (the “99%”) are unheard, if not deliberately excluded. If the operation of an Article V Convention is controlled by interests such as ALEC and the Heritage Foundation, it will further entrench the rule of the plutocracy over the people, and the rights of property over human rights and basic needs. A likely practical result is that most of the rest of us will be working even harder for less, and witness further degradation of our civic and community life.

The Promise

Like most everything else, an Article V Convention represents a yin and yang gateway to either an aggravation of the current domination of plutocracy, or the promise of real reforms that have the potential to make a positive difference for the rest of us. Below is a list of Amendments that would bolster democracy and go a long way toward operationalizing our unrealized original ideals:

  1. An express provision declaring that corporations are creatures of statute, NOT people, and therefore are not entitled to rights conferred in this Constitution that apply to natural persons. Although the purpose of the 13th and 14th Amendments was to insure equal rights of newly freed slaves, corporations have made far more use of these protections in advancing their own interests at the expense of the People.
  2. Campaign finance reform. Please refer to the prior discussion about overturning Citizens United. This Amendment should include an express acknowledgement that money (i.e., “property”) is not entitled to the same protection as free speech and other civil rights.
  3. Abolish the Senate and expand the House to ensure equal representation. The Senate is a holdover from an agreement with the slaveholding states that ensured equal representation of each state in the upper chamber, regardless of population. Today, a Senator from Wyoming represents 290,000 people while a Senator from California represents 19.8 million people, giving the citizens of Wyoming a voice 68 times greater than the citizens of California.
  4. Require non-partisan redistricting commissions in the states for federal elections.
  5. Reform the Electoral College. Although it is rare historically, we have seen a President elected by an Electoral College majority who nonetheless lost based on the popular vote twice within 20 years. Moreover, as most of us witnessed on January 6, 2021, the current logistics for the counting of Electoral votes leaves too much leeway for mischief and corruption. Enshrine the concept of One Person One Vote and all votes are equal.
  6. Make the right to vote explicit and sacrosanct. People may be surprised to learn that there is no express guarantee of the right to vote in the Constitution. Rather, there are prohibitions against infringing the right to vote based on race, color or previous condition of servitude (Am. XV) or based on sex (Am. XIX). Having the right to vote be unambiguous and apply to everyone equally will make it harder for Judges to write decisions that turn out to be bad law (e.g. Shelby County v. Holder).
  7. Congressional term limits. Ironically, this is one thing that progressives and the oligarchs/corporatocracy seem to agree on. Also ironically, it could potentially make it more expensive for the plutocrats to own a Congressperson, as they would have to “buy in” each time a representative was term-limited out.
  8. Acknowledging (and permitting) a higher need for regulation of entities based on size, wealth, privilege, power, and control over public resources. That is, laws could be “constitutional” if applied to behemoths like Amazon or Facebook, but may not be permissible if applied to mom-and-pop businesses on Main Street (an Equal Protection exception).
  9. Abolish blanket Presidential immunity. NO ONE is above the law.
  10. Limiting the Presidential pardon power. This should include a requirement to weigh and balance harmfulness to the rule of law.

So, an Article V Convention has the potential to either be a disaster for We the People or to remedy many of the undemocratic features that have been with us since America’s founding. Obviously, if we want such a Convention to “work” for We the People, it cannot happen with the current Congress and maladministration in charge. And even with a change of the folks in power, Congress needs to adopt unambiguous rules about how such a Convention should be conducted in advance of such a Convention.

First, how would Delegates be selected? Who is going to be at the table where important decisions are made? It is imperative that there be procedures to include the voices of the marginalized and those who historically have not been heard in the corridors of power.

Second, regardless of the number of subjects that will be allowed to be brought up at any Convention, there needs to be rules about notice and limits on changes past a certain number of days in advance of the Convention.

Third, the powers of the States and Congress (to set rules) and the Courts (to hear appeals—or not) must be explicit and unambiguous.