Why Josh Hawley’s Citizens United bill could be constitutional
Conn Carroll
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Sen. Josh Hawley (R-MO) angered Minority Leader Mitch McConnell (R-KY) yesterday by introducing legislation that would ban publicly traded corporations from donating to political campaigns or making independent expenditures for or against a candidate.
McConnell reportedly attacked Hawley at a Senate Republican conference lunch, claiming that Hawley never would have won his 2018 election without support from McConnell’s Senate Leadership Fund, which takes money from corporations.
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McConnell allegedly said anyone who supported Hawley’s bill would receive “heavy incoming from the right.” One such person on the right, National Review’s Noah Rothman, attacked Hawley along these lines with a post on X, formerly Twitter, “Josh Hawley hopes to restore the government’s right to censor anti-Hillary Clinton documentaries that might broadcast too close to the election. Finally, a fighter emerges!”
But Rothman either hasn’t read Hawley’s bill or hasn’t read Citizens United. Citizens United was a non-profit organization. Hawley’s bill only targets publicly traded corporations. Nothing in Hawley’s bill would prevent Citizens United from showing an anti-Hillary documentary. Corporations like Coca-Cola and Delta Airlines, both of which attacked Republicans over Georgia’s election reforms, would be prohibited from making independent expenditures.
But Congress can’t just overturn a Supreme Court decision based on a Constitutional protection like the First Amendment. That’s the whole reason we have a Supreme Court in the first place, to limit what Congress can do.
But Congress can tweak a law to make it fit the court’s jurisprudence, and that seems to be what Hawley has done here.
If you read the court’s Citizens United decision, you’d know that the court was very concerned with the broad limits on speech the Bipartisan Campaign Reform Act of 2002 placed on small associations of people
[The previous case upholding BCRA’s ban on corporate speech] interferes with the ‘open marketplace’ of ideas protected by the First Amendment,” the court wrote. “It permits the Government to ban the political speech of millions of associations of citizens.”
The court then cites statistics showing that “96% of the 3 million businesses that belong to the United States Chamber of Commerce have fewer than 100 employees” and that “more than 75% of corporations whose income is taxed under federal law have less than $1 million in receipts per year.”
“This fact,” the court continues, “belies the Government’s argument that the statute is justified on the ground that it prevents the ‘distorting effects of immense aggregations of wealth.’ It is not even aimed at amassed wealth.”
But Hawley’s bill does not target small businesses. It only goes after just publicly traded corporations, the smallest of which is worth over $1 billion.
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Hawley is at the forefront of a fight in the Republican Party over the proper role of corporations in a democracy. Corporations are, after all, not free market inventions. Corporations only exist because they are given special privileges by the government, including eternal life and limited liability. No American citizen I know has either of those powers.
It is entirely possible today’s court would hold Hawley’s Ending Corporate Influence on Elections Act constitutional.