After languishing in state legislatures across the country, a novel approach to curtailing money in politics becomes law in Hawaii
SB 2471 was crafted allow the state to curb corporate political spending.
Hawaii is on a collision course with legal precedents that allow corporations to pump billions into elections after its governor signed a first-of-its-kind campaign finance reform bill into law.
The bill, SB 2471, was crafted to curb political spending by leveraging the state’s ability to define the powers of a corporation. Due to the new law’s sweeping implications for political speech and elections, it seems almost certain to draw legal challenges.
Sen. Jarrett Keohokalole, one of the bill’s sponsors, sees a connection between the legislation and Hawaii’s past.
“We have a long dark history in Hawaii of corporations overruling the will of the people,” Keohokalole told ABC News. “The overthrow of the Hawaiian Kingdom in 1893 was done by U.S. businessmen who ran the sugar conglomerates.”
In 2010, the Supreme Court issued a ruling in the case of Citizens United v. Federal Election Commission which asserted that independent corporate spending on elections is a form of protected speech. The ruling famously nullified past guardrails on political spending, and contributed to the formation of so-called “super PAC” political action committees, which can support their chosen candidates with unlimited corporate backing.
Though it does not directly dispute that corporations have a right to political speech, the new Hawaii law says that, since the powers of corporations are granted by states, the state can decline to grant corporations the power to spend on elections in the first place. The new law is set to be enforced in 2027.
This same idea concerning corporate powers undergirds a series of other reform efforts across the country. One of the primary architects of the theory is Tom Moore of the Center for American Progress, a progressive policy institute, who told ABC News that over a dozen bills based on the theory have been introduced in state legislatures.
Almost all those bills have died. California’s AB 1984, for instance, introduced by state Assemblymember Chris Rogers in February, died in committee without a vote. Rogers told ABC News that he plans on reintroducing the bill next year.
“I think that there's value in continuing to fight and showing the average voter that not everybody who gets elected and not every institution that is making policy is bought and paid for,” Rogers said.
In Montana, a group called the Transparent Election Initiative (TEI) is gathering signatures for a ballot initiative that, if passed, would restrict the political spending powers of corporations in that state.
Jeff Mangan, head of TEI, said he was “pleased as punch” to see Hawaii’s bill signed into law. According to Mangan, TEI is about two-thirds of the way to having the 30,000 signatures required to get their initiative on the ballot.
“There’s lots of momentum on the ground,” Mangan told ABC News.
Of all the states pursuing this type of campaign finance reform, Hawaii is the first to turn its policy into law. Moore, who formerly worked at the Federal Election Commission (FEC), described the bill’s progress through the Hawaii legislature as a “pleasant surprise.”
“It doesn’t overturn (Citizens United),” said Moore. “It’s like a Supreme Court case that deals with buggy whips … It just doesn’t do anything anymore.”
Bradley Smith, the founder of the Institute for Free Speech, is unconvinced by Moore’s theory.
“You really think the Supreme Court is going to buy that?” said Smith, himself a former FEC commissioner, in an interview with ABC News. “Does anybody really think that they're going to listen now and go, ‘you guys are so clever. You got me. I never thought about just calling it a power rather than a right’?”
Smith said that the Institute for Free Speech could challenge the legislation, and that a challenge to the law could go all the way to the Supreme Court.
Even in Hawaii, the theory behind the new law has its skeptics. The state Attorney General’s office, for instance, said in testimony last February that while it “sympathizes greatly with the frustration with federal caselaw on this subject,” the bill “raises serious constitutional concerns and substantial adverse litigation risk should it pass into law.” Additionally, although Hawaii Gov. Josh Green told Honolulu ABC affiliate KITV that he thinks “the idea is right,” he alluded to “challenges” with SB 2471 in the days before the bill passed in the legislature.
Sen. Karl Rhoads, a Democrat and one of the bill’s co-sponsors, agrees that the law could end up being escalated to the country’s highest court.
“The Supreme Court has tied itself in some interesting legal knots to get the result they want, so … I understand the AG’s concerns. But I think they're being overly defeatist,” Rhoads told ABC News.
Chris Rogers, the assemblymember from California, thinks that any legislation or ballot initiative based on Moore’s legal theory will inevitably face legal challenges.
“Once the courts have to weigh in on this question, it will be a pretty big systemic change across the United States,” said Rogers.