Josh Gohlke’s Substack is Laughing Leads to Crying. He was previously an opinion writer and editor for the Los Angeles Times, Philadelphia Inquirer and San Francisco Chronicle.
The year after the U.S. Supreme Court freed corporations and other groups to wield unprecedented influence over elections, a heckler at the Iowa State Fair confronted then-presidential candidate Mitt Romney with the idea of taxing corporations instead of people. “Corporations,” Romney immortally retorted, “are people, my friend.”
Worse for Romney, this was back when voters still generally frowned on ridiculous statements by presidential candidates — even Republican ones! Whatever the legal and philosophical underpinnings of Romney’s argument, the comment was ill-suited to a candidate exuding executive vibes in the shadow of the court’s ill-received corporate personhood project. “Corporations aren’t people,” his rival Barack Obama later rebutted. “People are people!”
New legislation in Sacramento could restore this commonsense distinction to the law by taking advantage of the state’s authority to define what exactly a corporation is and can do. Assembly Bill 1984 seeks to stem the tidal wave of court-sanctioned corporate money in politics by novel means: Instead of contending with corporations’ increasingly absurd enjoyment of all the federal rights once reserved to humans, it would limit their state-granted powers.
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The Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission altered the course of American politics by unleashing corporate spending to elect candidates, including so-called dark money spent by special nonprofits that need not disclose their sources. Such expenditures surpassed $4 billion in 2024, a nearly 30-fold increase since before the ruling. It’s surely no coincidence that the federal government appears to be overtly in league with some of America’s wealthiest corporations — or that California’s Democratic governor is so panicky about the prospect of taxing billionaires a bit more.
Citizens United built on the court’s dubious 1976 ruling that political spending is protected speech and parted from a decision the following year to find that corporate political contributions raise no inherent corruption concerns (snort). Suddenly corporations had the right to “speak” freely through virtually unlimited spending on politics, a monumental grant of influence that apparently couldn’t be undone short of a constitutional amendment or radical reconstitution of the court.
The bill by Assemblymember Chris Rogers (D-Santa Rosa) is a potential detour around this whole jurisprudential disaster. Like a pioneering Montana ballot initiative and parallel efforts in several other states, it would redefine corporations under state law so that those operating in the state no longer have the power to express themselves in the form of political spending in California elections. The theory is that the Supreme Court’s activist empowerment of corporations through the federal right to free speech is moot if the entities lack the ability to speak in the first place.
Mariel Garza
Unlike free expression, campaign finance and corporate rights, corporate powers are almost entirely determined by states, as Tom Moore, a senior fellow at the Center for American Progress, notes in the report that inspired the state measures. While we understand government to derive its powers from real persons endowed by their creator with certain unalienable rights, at least as our founders had it, corporations have been called “artificial persons” created by law with no such inherent powers or rights.
Thanks to a 19th-century race to attract business, the states universally grant corporations most of the powers of individuals under unlimited general charters. But states once put all kinds of limits on corporate powers and retain extensive — albeit untapped — authority to do so again. AB 1984 would thereby expressly revoke corporate power to speak through political contributions, rendering any corporate right to do so irrelevant within California. That would likely include corporations formed in other states, which generally have to abide by the rules of the states in which they do business.
It’s a clever idea with a long way to go. The California bill hasn’t had a hearing yet, and it would be a mistake to underestimate the influence of corporate opposition even in an avowedly progressive state. More important, the legal theory has yet to be tested in this context, particularly by a Supreme Court that has demonstrated a remarkable ability to, um, interpret the Constitution to serve partisan ends. Perhaps the most formidable legal obstacle to the state measures is known as the unconstitutional conditions doctrine, which holds that a government may not require anyone to give up a constitutional right to obtain a benefit.
David L. Ulin
Rogers expects the bill to face political and legal challenges, but he noted that it has both public opinion and case law going for it. The Supreme Court wouldn’t be able to substantially rein in a state’s authority to define corporate powers without “throwing out hundreds of years of precedent that they have reaffirmed,” Rogers told me. And Citizens United and its consequences have never been popular: Polling shows most Americans generally support stricter limits on political contributions, particularly those connected to wealthy individuals and corporations.
People, in other words, broadly and instinctively understand that corporations are something else entirely. Restoring that obvious truth to our laws and politics could give some real power back to real people.
