Be skeptical of Hawley’s ‘opposition’ to Citizens United

When it sounds too good to be true, it usually is. That’s almost certainly the case with some seemingly good news from the far-right Senator from Missouri, Josh Hawley.

Last week, a story broke that Hawley was introducing a bill to reverse Citizens United, the infamous 2010 Supreme Court case that turbocharged unlimited “independent” campaign spending. “I am an originalist,” Hawley said, “and I don’t think you can make an originalist case for business corporations being treated like individuals when it comes to the right to political speech.”

That’s what the 5-4 Supreme Court majority said in Citizens United. It’s been the basis for some of the harsh critique of the decision. So Hawley joining that criticism sounds good, right?

On the surface, there’s something to applaud. Corporations are fictional creations of the law, not actual beings of flesh and blood. They’re hardly the same as individuals on whom the authors of the First Amendment bestowed the right to speak freely without government interference.

But consider the “fine print” in Hawley’s quote above. His opposition is limited to political spending by “business corporations.” Data shows that the spending on campaigns comes overwhelmingly from super-wealthy individuals, not business corporations. Individuals give via not-for-profit political action committees — PACs. Hawley spoke nary a word about them. PACs are the real way dark money corrupts our politics.

Take, for example, the Marble Freedom Trust, controlled by Federalist Society honcho Leonard Leo. A single Chicago donor gave that not-for-profit entity $1.6 billion. This and other PACs that Leo operates are the rocket fuel behind his efforts to corrode justice in the Supreme Court, state legislatures and other governing institutions.

Where is Hawley’s “originalism” when it comes to unlimited political spending by individuals? Vanished in a cloud of hypocritical dust, which covers a self-serving political strategy mimicking Trump’s populism.

In Hawley’s case, anti-corporate populism. That may explain why, two weeks ago, Hawley “crossed the aisle” and joined with Sens. Bernie Sanders and Sherrod Brown to express solidarity with striking auto workers.

Last month, he joined Sens. Amy Klobuchar, Chris Coons and Susan Collins in sponsoring the Protect Elections from Deceptive AI Act, which would “prohibit the distribution of materially deceptive AI-generated … media relating to candidates for Federal office.”

Surprised? Four of the five top producers of artificial intelligence are Big Tech companies: Microsoft, Alphabet (the parent company of Google), IBM and Tesla. It looks like his anti–Citizens United legislative proposal is part of his political branding, building a brand for a future run for president.

“Josh Hawley, the populist from Stanford and Yale.” Catchy.

Of course, the strategy is not executed only in alliance with progressives. Part of Hawley’s political dogma is attacking “woke” corporations. He doesn’t have a ton to lose by going after for-profit corporations — little of Hawley’s campaign funding derives from business. More than 90 percent appears to come from individuals and other sources not directly tied to corporations’ spending.

So pardon the skepticism about his “good government” motives.

In a meeting last week, Senate Minority Leader Mitch McConnell, whose corporate fundraising Hawley is threatening, counterattacked by warning that anyone who signs on “will get heavy incoming from the right.”

But McConnell was referring to the “establishment” right, which he represents. Maybe Hawley wants his brand to be anti-establishment. Again like you-know-who. Political ambition is neither originalist nor original. 

Whether Hawley’s position on Citizens United goes beyond his populist presidential aspirations can be tested. True opponents of dark money in the Senate, mainly on the Democratic side, can try to forge an alliance with Hawley to end all the unlimited political spending by billionaire donors.

For Hawley to join with true proponents of transparent and constrained spending in elections would require him to oppose unlimited campaign expenditures by non-profit PACs. Maybe we’ll be surprised, and he’ll do so.

Just don’t bet all that dark money you were planning to spend in 2024 on it.

Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.