Free Speech Organization Challenges Hawaii’s Attempt To Circumvent Citizens United

A free speech advocacy organization is challenging Hawaii’s novel attempt to prohibit corporate political spending without overturning Citizens United v. Federal Election Commission. In May, Hawaii’s Democratic governor, Josh Green, signed a bill, Act 11, aimed at countering the landmark 2010 Supreme Court decision in Citizens United, which allowed unlimited donations from corporate donors under First Amendment protections. Hawaii’s bill imposes spending restrictions on corporations and nonprofit organizations alike, including advocacy groups, charitable organizations, and unions, preventing them from spending or contributing resources to elections or ballot measures. A co-sponsor of the law, Senator Jarrett Keohokalole, told KHON2 the law “does not regulate the rights of natural persons to speak, petition, or associate,” but “simply defines the powers that the state grants to artificial entities and makes clear that participation in election activity and ballot-issue activity is not among them.”The free speech advocacy organization, the Institute for Free Speech, filed a federal lawsuit on behalf of a Hawaii-based nonprofit group, the Grassroot Institute of Hawaii, which promotes individual liberty and limited government, arguing that Act 11 violates the First Amendment.The Institute for Free Speech says the law “aims to silence the groups that residents most typically use to make their voices heard—including advocacy organizations, unions, charitable nonprofits, and trade associations.” The lawsuit notes that Act 11 prohibits entities authorized to do business in the state from “paying, contributing, orexpending money or anything of value to support” a political candidate or ballot measure. The plaintiffs say those limitations pose a “substantial threat to the First Amendment rights” of organizations like the Grassroot Institute, which publishes research and hosts events to discuss policy, legislation, and ballot initiatives. A specific cause for concern for the Grassroot Institute is that the organization sends out “communications that identify elected officials’ policy positions.”“Under Act 11, this core advocacy could be treated as prohibited ‘election activity,’ placing the organization in jeopardy for speaking about the very issues it was founded to address,” the Institute for Free Speech says. “It does this by prohibiting any spending to ‘directly or indirectly … support or oppose’ a candidate—terms so broad that even routine legislative education and advocacy mentioning elected officials could trigger enforcement.”The lawsuit said Act 11 has another problem in that it exempts newspapers and broadcasters from the restrictions. It argues that is an example of the government choosing which entities are allowed to enjoy First Amendment rights. Under Act 11, the state can suspend an organization’s authorization, revoke its tax exemptions, or force its dissolution. Democrats have railed against Citizens United, arguing that the influence of wealthy donors and corporations drastically increased when the high court overturned prohibitions on corporate “independent” spending, which does not go directly to a political party or a candidate. In March, more than 180 House Democrats backed a proposed constitutional amendment to overturn Citizens United. “Sixteen years since the disastrous Citizens United decision flooded our elections with dark money, the threats to our democracy from big corporations and special interest groups have only grown,” Representative John Larson, the chief sponsor of the amendment, said at the time. He also called for public financing of federal elections. “With (President) Trump and his MAGA allies threatening to take over our elections, the need to put the power of our democracy back in the hands of everyday citizens has never been greater.”Conservatives have defended Citizens United, noting that the decision did not overturn the prohibition on corporations donating directly to politicians, nor did it legalize foreign corporate spending in elections. Act 11 follows a novel legal theory advanced by a senior fellow at the Center for American Progress, Tom Moore, who argued that even after Citizens United, states still have the authority to rewrite corporate charters to prevent political spending without overturning Supreme Court precedent. Hawaii is the first state to test that legal theory. Mr. Keohokalole told KHON2 he believes the state has the power to impose such restrictions because “corporations and other artificial entities exist because the State grants them legal privileges, including limited liability and lucrative tax benefits that individuals cannot claim.” “Act 11 clarifies that those privileges do not include the power to spend corporate money to influence our elections,” he said. A senior attorney for the Institute for Free Speech, Owen Yeates, said in a statement that Act 11 is “one of the most sweeping attacks on political speech we’ve seen in years.”“Americans have a constitutional right to join together through nonprofits and other associations to advocate for the causes that matter to them and their communities,” Mr. Yeates said. “Moreover, Americans have a right to decide for themselves which voices they want to hear. Act 11 strips those rights from the residents of Hawaii.”Hawaii’s attorney general, Anna Lopez, who was listed as a defendant in the lawsuit, did not respond to the Sun’s request for comment by the time of publication.

Free Speech Organization Challenges Hawaii’s Attempt To Circumvent Citizens United

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