University of St. Thomas Law Journal

Montana’s Novel Approach to Undoing Citizens United

Sampson Aslesen*

Across the political spectrum, Americans share a common distaste for big money in politics.1 Roughly 79 percent of Americans agreed that large independent expenditures (the technical name for political ads that are not coordinated with a candidate) give rise to corruption or the appearance of corruption, including 84 percent of Democrats and 74 percent of Republicans.2 Despite this, in 2010, the Supreme Court in Citizens United v. Federal Election Commission protected corporations’ unlimited right to “speak” through these independent expenditures.3 The Transparent Election Initiative, a Montana nonprofit, aims to make Citizens United irrelevant by redefining the powers granted to corporations under state law.4 

Overview and History of Election Finance

As we know them today, election finance laws began with the Federal Election Campaign Act (FECA) of 1971, which established comprehensive disclosure requirements and contribution limits.5 The FECA originally prohibited corporations and labor unions from directly contributing to political campaigns and making independent expenditures. Instead, the FECA required corporations to funnel their money through political action committees (PACs).6 While operating as an arm of their parent organizations, PACs are distinct entities that are highly regulated by the Federal Election Commission.7  

In Citizens United, the Court held that the government may not suppress political speech based on a speaker’s corporate identity—particularly concerning independent expenditures.8 While corporations may speak through PACs, the Court found them an onerous and insufficient alternative to free speech.9 The Court also looked to the history of corporate free speech protections10 and asserted that independent expenditures are not susceptible to coordination and quid pro quo dealings11 like direct contributions.12 

Following Citizens United, the US Court of Appeals for the District of Columbia determined that the government necessarily does not have an interest in limiting contributions to groups that make only independent expenditures.13 From this decision, the Federal Election Commission (FEC) issued advisory opinions permitting the creation of independent expenditure-only political action committees,14 better known as super PACs.15 

Through these cases, corporations have the unlimited right to independently “speak”: either directly, through their own treasury, or indirectly, through super PACs.16 Independent expenditures may include any electioneering efforts, including speaking for or against a federal candidate.17 The Court has held that expenditures are independent when made “without any candidate’s approval (or wink or nod),”18 though critics have identified several loopholes in FEC anti-coordination regulations.19

The Response to Citizens United

The Supreme Court’s decision in Citizens United is contentious.20 Polls following the ruling showed that 80 percent of those surveyed opposed it, including 65 percent who strongly opposed.21 More recent polling concurs.22

Justice Stevens, in his eighty-six-page concurrence in part and dissent in part, highlighted many of the concerns shared by legal scholars.23 To Stevens, corporations are not “‘We the People’ by whom and for whom the Constitution was established.”24 Further, he questions who is really speaking when a corporation spends money on campaign electioneering, distinguishing it from individual speech.25 The “burden” of PACs is also not substantiated by the record, and Stevens criticizes the majority deciding this matter without any consideration for the benefits of the election laws.26 He also mentions how, after campaigns end, “[t]he sponsors of these ads were routinely granted special access after the campaign was over; ‘candidates and officials knew who their friends were.’”27

Following Citizens United, independent expenditures have increased as well, according to Open Secrets.28 These amounts have increased from $143,659,091 in 2008; to $1,002,086,502 in 2012; $1,383,365,328 in 2016; $2,883,423,226 in 2020; and $4,205,052,224 in 2024.29 

In the past decade and a half since its inception, various state and federal attempts have been made to curb its effects, to no avail. The DISCLOSE Act has made little progress despite independent introductions.30 Additionally, the members of sixteen state legislatures have called for a constitutional amendment to overturn Citizens United.31 

In Montana, while the state supreme court initially upheld a 1996 ban on corporate spending in ballot issue campaigns, the US Supreme Court reversed this decision in 2012’s American Tradition Partnership v. Bullock.32 Despite its long history of skepticism toward corporate influence,33 Montana has had little recourse in the post-Citizens United world. 

The Novel Approach to Campaign Finance

To curb the effects of Citizens United, the Center for American Progress (CAP) promulgated its report for a “Corporate Power Reset.”34 This ambitious report leverages American federalism with a state-by-state approach. It recognizes that, while Citizens United addresses whether the government could regulate corporate political spending power, it doesn’t contemplate whether states must grant corporations the power to spend at all.35 

Corporations, as the Court has recognized time and again, are creatures of state law.36 They do not exist without the respective state’s laws of incorporation, and are entirely subject to the whims of their legislature.37 Preexisting corporate charters are also not safe from state intervention,38 and reliance-based arguments generally do not protect corporations.39 Foreign corporations must also conform to the laws of the state in which it does business.40 

By altering the fundamental characteristics of a corporation, instead of regulating corporations after their creation, the CAP report seeks to undo the effects of cases like Citizens United.41 As CAP highlights, Citizens United was granted the power to act like an individual because Virginia law specifically permits corporations to act with “the same powers as an individual to do all things necessary or convenient to carry out its business and affairs.”42 

States looking to adopt this approach are also protected against corporate flight.43 Not only is migration a difficult process,44 but a corporation seeking to spend in the politics of a state that passes such a measure would gain no relief by changing its state of incorporation, as it would then be a foreign corporation to its previous home state and thus equally barred from spending in its politics.45  

The Transparent Election Initiative, a Montana-based nonprofit organization, is leading efforts to place the CAP-proposed reforms on Montana’s November 2026 ballot and hopes to make it the first state to implement this approach through a ballot initiative,46 a process available in only twenty-one states.47 As of October 24, 2025, however, Montana Attorney General Austin Knudsen rejected the proposed ballot measure, citing that it affected more than one part of the Montana Constitution and was thus legally insufficient.48 Jeff Mangan, the initiative’s primary advocate, released a statement on October 27 stating that he planned to file a timely appeal for this decision.49 

While the Montana ballot initiative faces an uncertain path forward, its underlying strategy represents a promising approach to curtailing corporate political spending since Citizens United. If the initiative survives appeal and wins voter approval in 2026, Montana could provide a model for other states to counteract the perceived oversteps of corporations into civic life.50 

* Sampson Aslesen, J.D. Candidate, University of St. Thomas School of Law, Class of 2027 (Associate Editor). 

  1. Andy Cerda & Andrew Daniller, 7 Facts About Americans’ Views of Money in Politics, Pew Research Center (Oct. 23, 2023), https://www.pewresearch.org/short-reads/2023/10/23/7-facts-about-americans-views-of-money-in-politics/ [https://perma.cc/FK3K-ZKXP]. ↩︎
  2. Cory Combs, New Polling Illuminates How the Supreme Court Got Citizens United Wrong and Shows Bipartisan Momentum for Money-in-Politics Reforms, Including Proposed Montana Ballot Measure, Issue One  (Oct. 28, 2025), https://issueone.org/press/new-polling-citizens-united-money-in-politics-reforms/ [https://perma.cc/G8F3-3XX5]. ↩︎
  3. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010).  ↩︎
  4. Transparent Election Initiative (last visited Nov. 2, 2025), https://transparentelection.org/ [https://perma.cc/LQ9R-CKNT]. ↩︎
  5. Paige L. Whitaker, PACs and Super PACs in Federal Election Campaigns: Legal Framework, Cong. Rsch. Serv., June 17, 2024, https://www.congress.gov/crs-product/IF12691 [https://perma.cc/C2CG-RWQL]. ↩︎
  6. Id. ↩︎
  7. Id. ↩︎
  8. Citizens United, 558 U.S. at 365. ↩︎
  9. Id. at 338–39. ↩︎
  10. See id. at 342. ↩︎
  11. See id. at 357 (“For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”).  ↩︎
  12. Id. at 361. ↩︎
  13. SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 692–93 (D.C. Cir. 2010). ↩︎
  14. See, e.g., Fed. Election Comm’n, AO 2010-11, Contributions to an Independent Expenditure Committee (2010), https://www.fec.gov/updates/ao-2010-11-contributions-to-an-independent-expenditure-committee/ [https://perma.cc/Q8RV-ATMF]. ↩︎
  15. See Dave Levinthal, Genesis of a Super Name, Politico (Jan. 10, 2012, at 12:57 ET), https://www.politico.com/story/2012/01/genesis-of-a-super-name-071285 [https://perma.cc/DME6-JG7Q].  ↩︎
  16. Whitaker, supra note 5. ↩︎
  17. Whitaker, supra note 5. ↩︎
  18. Fed. Election Comm’n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 442 (2001); see 11 C.F.R. § 100.16(a) (2025).  ↩︎
  19. See, e.g., Jessica Piper, Super PACs Keep Testing the Limits of Campaign Finance Law, Politico (Apr. 8, 2024, at 5:00 ET), https://www.politico.com/news/2024/04/08/super-pac-fec-limits-00150672 [https://perma.cc/MJJ2-8MZM]; Matt Choi, An Avenue for Corruption: Super PACs and the Common Vendor Loophole, 18 NW. J. L. & Soc. Pol’y. 99 (2022).  ↩︎
  20. Daniel I. Weiner, Citizens United Explained, Brennan Center For Justice (last updated Jan. 29, 2025), https://www.brennancenter.org/our-work/research-reports/citizens-united-explained [https://perma.cc/3AX5-CB4E]; Ashley Balcerzak, Study: Most Americans Want to Kill ‘Citizens United’ with Constitutional Amendment, Ctr. for Pub. Integrity (May 10, 2018), https://publicintegrity.org/politics/study-most-americans-want-to-kill-citizens-united-with-constitutional-amendment/ [https://perma.cc/4F4E-5LHE]; Andrea Sachs, The Worst Supreme Court Decisions Since 1960, Time (October 5, 2015, at 11:36 ET), https://time.com/4056051/worst-supreme-court-decisions/ [https://perma.cc/77WQ-WT53]. ↩︎
  21. Washington Post-ABC News Poll, Wash. Post (Feb. 10, 2010), https://www.washingtonpost.com/wp-srv/politics/polls/postpoll_021010.html [https://perma.cc/K7SN-NS9A] (response to question 35, “Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?”).  ↩︎
  22. Combs, supra note 2. ↩︎
  23. See generally Citizens United, 558 U.S. at 393–479 (2010) (Stevens, J., concurring in part and dissenting in part); see also Leo E. Strine, Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L.R. 887, 881–82 (2015) (discussing how the majority’s holding does not comport with an originalist reading).   ↩︎
  24. Citizens United, 558 U.S. at 466. ↩︎
  25. See id. at 467 (explaining that customers, employees, and shareholders cannot plausibly be the “speaker” behind a corporation’s political spending, and although some corporate agents must ultimately decide to place the advertisement, their fiduciary duties prevent them from treating the expenditure as personal political expression, making it fanciful to view the decision as their own self-expression).  ↩︎
  26. Id. at 400. ↩︎
  27. Id. at 455 (quoting McConnell v. Fed. Election Comm’n, 540 U.S. 93, 129 (2003)). ↩︎
  28. Total Outside Spending by Election Cycle, Excluding Party Committees, Open Secrets (last visited Nov. 2, 2025), https://www.opensecrets.org/outside-spending/by_cycle [https://perma.cc/M5P8-UG32]. ↩︎
  29. Id. ↩︎
  30. See DISCLOSE Act of 2010, H.R. 5175, 111th Cong. (2010); DISCLOSE Act of 2023, H.R. 1118, 118th Cong. (2024) (providing for additional disclosure requirements for corporations, labor organizations, Super PACs, and other entities engaging in campaign-related and judicial nomination disbursements, while also strengthening prohibitions on foreign money in U.S. elections).  ↩︎
  31. Paul Blumenthal, Citizens United Constitutional Amendment: New Jersey Legislature Seeks Reversal of Ruling, Huffington Post (Oct. 18, 2012, at 16:52 ET), https://www.huffpost.com/entry/citizens-united-amendment-new-jersey_n_1981950 [https://perma.cc/AW5D-P7CP]. ↩︎
  32. Am. Tradition P’ship, Inc. v. Bullock, 567 U.S. 516, 516 (2012). ↩︎
  33. See generally Gilbert King, The Copper King’s Precipitous Fall, Smithsonian Magazine (Sep. 20, 2012), https://www.smithsonianmag.com/history/the-copper-kings-precipitous-fall-44306513/ [https://perma.cc/42FA-2YUM]. ↩︎
  34. Tom Moore, The Corporate Power Reset That Makes Citizens United Irrelevant, Ctr. for Am. Progress (Sep. 15, 2025), https://www.americanprogress.org/article/the-corporate-power-reset-that-makes-citizens-united-irrelevant/ [https://perma.cc/J7Z5-58CN]. ↩︎
  35. See generally Citizens United, 558 U.S. 310. ↩︎
  36. See, e.g., Rodriguez v. Fed. Deposit Ins. Corp., 589 U.S. 132, 137 (2020). ↩︎
  37. Greenwood v. Freight Co., 105 U.S. 13, 17 (1881). ↩︎
  38. Looker v. Maynard, 179 U.S. 46, 54 (1900). ↩︎
  39. See A.P. Smith Mfg. Co. v. Barlow, 13 N.J. 145, 156 (N.J. 1953). ↩︎
  40. Moore, supra note 34. ↩︎
  41. Moore, supra note 34. ↩︎
  42. Va. Code Ann. § 13.1-627 (2025). ↩︎
  43. Moore, supra note 34. ↩︎
  44. Moore, supra note 34. ↩︎
  45. Moore, supra note 34. ↩︎
  46. Transparent Election Initiative, supra note 4. ↩︎
  47. States with Initiative or Referendum, Ballotpedia (last visited Nov. 25, 2025), https://ballotpedia.org/States_with_initiative_or_referendum [https://perma.cc/Q6LA-33DX]. ↩︎
  48. Zeke Lloyd, Attorney General Rules ‘Anti-Dark Money’ Ballot Initiative Has Too Many Parts, NonStop Local (last updated Oct. 30, 2025), https://www.montanarightnow.com/news/state/attorney-general-rules-anti-dark-money-ballot-initiative-has-too-many-parts/article_4c7ff8ae-7d42-5653-a59b-cf9447a8d76d.html [https://perma.cc/9NH4-9CR3].  ↩︎
  49. Id. ↩︎
  50. Cerda, supra note 1. ↩︎

Montana’s Novel Approach to Undoing Citizens United 

By Sampson Aslesen

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