A desperate ploy to silence corporate America could devastate civil society.
When the French political philosopher Alexis de Tocqueville studied American society in the 1830s, he marveled at the seemingly endless array of associations Americans created to champion causes great and small. “In the United States associations are established to promote public order, commerce, industry, morality, and religion… the liberty of association for political purposes is unbounded,” he proclaimed.
Nearly two hundred years later, Americans still donate to charity and participate in civil society at levels that put other countries to shame. Yet association for “political” purposes today is far from unbounded, and a new scheme from the Center for American Progress (CAP) threatens to make it effectively illegal.
Named the “Corporate Power Reset,” CAP’s proposal would ban nonprofits, unions, trade associations, think tanks, and other incorporated entities from speaking about elected officials and candidates, ballot measures, and related policy issues. Overnight, an entire ecosystem of core political speech would vanish.
The consequences would be severe. Voters would become more dependent on the government and the media for information. Their ability to question official narratives or join together with like-minded citizens to promote messages of their own would be sharply limited. That may be a “power reset,” but it’s not one that favors the American people.
With CAP’s backing, versions of this radical proposal have appeared in nearly 20 states in less than a year. Some take the form of ballot initiatives or state constitutional amendments, while others are introduced as traditional legislation. In Hawaii, the proposal has already been passed into law – and quickly challenged in court.
Censors have long sought to gain control of the discourse by disqualifying certain classes of speakers. In 2008, the Federal Election Commission (FEC) tried to ban a documentary film criticizing then-presidential candidate Hillary Clinton because it was produced by a nonprofit corporation. The Supreme Court ultimately supported the group’s right to free speech in Citizens United v. FEC.
Another classic censorship strategy is to expose the names and addresses of donors behind specific organizations and causes. From there, harassment and fear do the rest. Former Vice President Kamala Harris made waves with this approach when, as California’s attorney general, she demanded that every nonprofit in the state hand over its confidential donor list. Nearly 300 groups from across the political spectrum cried foul to the Supreme Court.
That controversy led to another landmark First Amendment decision in 2021’s Americans for Prosperity Foundation v. Bonta. Citing cases that date back to the Civil Rights Movement, the Court reminded California that states are barred from demanding nonprofit donor lists because disclosure “creates an unnecessary risk of chilling” freedom of speech and association.
And just this year, the Supreme Court issued a unanimous opinion in First Choice v. Davenport that recounts a lengthy list of precedents reaffirming the First Amendment right to privacy in association.
To evade these robust and longstanding protections, CAP’s scheme tests a fringe legal theory that goes far beyond overturning Citizens United or other campaign finance cases. Instead, the “Corporate Power Reset” would redefine corporate rights to exclude the freedom to engage in broadly defined forms of political speech. If successful, this approach could potentially be replicated to strip other constitutional rights away from corporate entities: privacy, religious freedom, press freedom, and more.
But the harms to freedom of speech, assembly, and petition are more than enough cause for alarm on their own. Under CAP’s proposal, any group that does not organize itself as a political action committee – and consequently, publicly disclose its donors – is effectively barred from participating in the most direct and impactful forms of political and issue speech. Donor privacy isn’t outlawed, but groups with private donors are muzzled.
The silver lining is that the Supreme Court is unlikely to allow states to strip away First Amendment rights that have long been upheld. But legal challenges can take many years to reach the High Court, and lower courts have been far more forgiving of censorship schemes.
Arizona offers one startling example. In 2022, a ballot measure purporting to be a silver-bullet solution to “dark money” in politics created so much confusion and complexity in the law that many nonprofits and donors on the right and left have been unable to navigate the new landscape. Despite multiple lawsuits challenging the measure, it remains in effect four years later, stifling countless voices in elections and legislative debates.
If CAP’s plan is not confronted and defeated, it’s destined to achieve a similar result. To prevent a tragic and unAmerican turn against civil discourse, organizations across the political spectrum must call out this scheme for what it is: a plot to muzzle civil society.
Heather Lauer is the CEO of People United for Privacy Foundation.
