Hawaii law challenges Citizens United. Why it faces a lawsuit
A leading free speech group has filed a federal lawsuit against a new law in Hawaii which seeks to limit the influence of money in politics.
Act 11, passed in Hawaii on May 14, is a first-of-its kind effort by a state legislature to deny entities like corporations the power to spend in political campaigning.
The law effectively neuters the power in the state of the landmark 2010 U.S. Supreme Court ruling in Citizens United v. Federal Election Commission, which allowed corporations and other groups to spend unlimited amounts of money on elections as part of their First Amendment protected speech.
The Institute for Free Speech, a nonprofit free speech legal group, filed the lawsuit on June 5 in federal court for the district of Hawaii on behalf of the Grassroot Institute, a Hawaiian nonprofit public policy think tank. The lawsuit argues that the law is a “substantial threat” to the First Amendment.
“Act 11 is one of the most sweeping attacks on political speech we’ve seen in years,” said Owen Yeates, a senior attorney with the Institute for Free Speech and the lead litigator on behalf of the Hawaii nonprofit.
“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," Yeates said, in a news release regarding the lawsuit. "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.”
When the law passed, Hawaii's Democratic Gov. Josh Green said in a statement that the bill is “intended to strengthen transparency, reduce the influence of corporate money in elections and help restore public trust in Hawaii’s democratic process.”
What is Hawaii’s Act 11?
Beginning on July 1, 2027, “corporations, limited liability companies, partnerships, associations, and other artificial persons” in Hawaii will not be allowed to spend money on or participate in any “election activity or ballot-issue activity,” according to the bill’s text.
The law emphasizes the classification of corporations as an “artificial person,” and states that the Hawaii government believes that the powers given to an artificial person are “separate and distinct from the rights retained by natural persons.”
“This Act therefore does not regulate any natural person's rights to speech, petition, or association,” the law states. “This act simply defines and limits the powers that the state confers upon the artificial persons that the state charters or authorizes to do business.”
Part of the law’s reasoning, it explains, is that the state supports repeated federal court decisions that limit the political influence of nonprofits because the nonprofits get tax benefits.
Corporations, the law argues, should get the same treatment.
Yeates said the law will “silence” groups that “residents most typically use to make their voices heard – including advocacy organizations, unions, charitable nonprofits, and trade associations.”
An Institute for Free Speech news release said the law is also unconstitutionally vague, “leaving organizations unsure of where the line between lawful advocacy and prohibited activity lies.”
“This law doesn’t affect just the Grassroot Institute,” said Keliʻi Akina, the institute's president and CEO. “It affects every Hawaii resident who wants to join with others to speak out on issues that impact their community. It doesn’t matter what the issue is or which side of it the organization is on. This law prevents citizens from organizing and pooling resources, time, and effort to speak on topics of public concern.”
Green's office declined to comment on the lawsuit, referring the USA TODAY Network to the Department of the Attorney General.
A spokesperson for the department said the attorney general is "aware of the lawsuit and is reviewing the complaint," but will not comment on pending litigation,
"Act 11 was enacted by the Legislature and signed into law by the Governor," the spokesperson added. "Questions regarding the policy rationale underlying the legislation are best directed to the Legislature. The State will review the allegations raised in the complaint and respond through the judicial process."
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