A Hawaiʻi bill challenging the ability of corporations to pour “dark money” into elections has hit a last-minute snag at the Legislature.
The House and Senate now have differing drafts of Senate Bill 2471, which currently proposes to “restate and limit the powers that the State grants to corporations, limited liability companies, partnerships, associations, and other artificial persons.”
In its current form, SB 2471 is attempting to redefine such “artificial persons” and reduce their ability to spend on elections. It's positioned Hawaiʻi as a trailblazer in the effort to nullify the impacts of Citizens United v. Federal Election Commission.
The U.S. Supreme Court's 2010 ruling in the case allowed unlimited and anonymous spending on political action committees, and that “dark money” in turn funds political campaigns.
But with just one day left to pass bills through the state Legislature, the House proposed a version of the bill that would limit donations to organizations like PACs to $6,000 per two-year election cycle.
“Instead of restricting the ability for a corporation or corporate entity to spend, which could be interpreted as (restricting) free speech, it's restricting the corporation's ability to accept donations,” said Rep. Scot Matayoshi, who offered the House's draft at a Thursday hearing for the bill.
In the Citizens United case, the Supreme Court ruled that the funding of corporations and organizations in elections cannot be limited, as it violates their free speech protections under the First Amendment.
The House version would sidestep the possibility that federal courts would strike down SB 2471.
That was a concern shared by the state Attorney General's office, which “strongly opposes” the measure that it said is “likely impossible to defend” in court.
“While many Americans strongly disagree with the U.S. Supreme Court's holding in Citizens United, under our federal system of government, it is our duty to state that this opinion remains the law of the land, irrespective of its merits,” the AG's office said in written testimony.
The House version mimics a ballot initiative adopted in Maine in 2024 that also seeks to limit corporate financing in elections. But it would do so by challenging a Supreme Court ruling in a different case — SpeechNOW.org v. Federal Election Commission.
The high court ruling in the case, made about three months after its ruling on the Citizens United case, said that limiting donations to super PACs also violated the First Amendment.
The Maine law is currently being litigated over its potential conflict with free speech rights.
But the matter has already been settled in Hawaiʻi, which means that the House version of SB 2471 could immediately fail if lawmakers pass it.
“The Ninth Circuit, which is where Hawaiʻi sits, has already decided this … There have been multiple cases that have basically said, 'Nope. If it's an independent (expenditure-only) political action committee, you can't regulate contributions coming in,'” said Tom Moore, the senior fellow for the Center For American Progress.
He added, “So if the Hawaiʻi Legislature would've tried this right now, it would just be dead on arrival when it got to court, not because it's a bad idea — it's a great idea — but because the Ninth Circuit has already spoken on them, and they have to respect their own precedent.”
Camron Hurt, state director for Common Cause Hawaiʻi, said that the bill's original language would represent a new legal challenge, giving it a chance to succeed.
“ We also know that our circuit court … has already adopted SpeechNOW.org, which means that we don't have the same hindrance and we have a better chance of winning in court,” Hurt said. “These amendments, upon initial review, weaken the bill and almost instantaneously guarantee that it's going to not withstand legal muster.”
Hurt also said the change to the measure could be significant enough to be considered a “gut-and-replace,” which is no longer allowed at the state Legislature.
Today is the last day that lawmakers have to agree on the language of the bill.
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