Members of the Colorado legislature have been working on a bill that would bar “artificial legal entities” — anything but natural human beings — from engaging in elections. They are likely under the misguided opinion that it will help get money out of Colorado politics. But they may as well call this the “Billionaires’ Political Welfare Act” if it proceeds.
It is not hard to understand where the impetus from this bill came from — a longheld, entrenched misunderstanding of the Supreme Court decision in Citizens United v. FEC.
The 2010 case changed the campaign finance world dramatically. It overruled a 1990 decision, Austin v. Michigan Chamber of Commerce, which barred general treasury funds from for-profit corporations, nonprofits and unions from being used for political speech. In Citizens United, the Court declared that ban violated the First Amendment.
In the immediate aftermath, and for the 15 intervening years, far-left progressives have rallied around opposition to Citizens United as an avatar for all they believe is wrong in politics. The problem is that they focus solely on the idea of for-profit corporate spending.
Effectively, they have funneled the same general anti-corporate beliefs many hold (rightly or wrongly) into a perception that is the only kind of speech Citizens United protects. They are wrong.
For almost 20 years I have provided legal trade associations, nonprofit corporations, unions and other organizations engaged in political activity. Each and every one would be affected by the bill being contemplated by the Colorado legislature.
What Citizens United actually protects is something I dubbed “aggregate speech” years ago in a debate with the late, great Colorado Senate Majority Leader Ken Gordon. In a series of appearances after the decision came out, the two of us took opposite sides of the argument.
Beyond being congenial to a fault, Gordon also possessed one of the sharpest political minds I have ever encountered. Consequently, I had to develop a persuasive way to explain the misconception so many held and why proposals to undermine it were dangerous.
So I turned to the language of the decision itself.
For example, the very first line written by Justice Anthony Kennedy notes that the laws applied to not just to corporations but also to unions: “Federal law (as it existed under Austin) prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech …”
Furthermore, the plaintiff in the case, Citizens United, was not a for-profit corporation. It was a nonprofit corporation. That meant it applied to for-profit and nonprofit corporations alike.
Consequently, viewing Citizens United solely as protecting for-profit corporate speech is fundamentally wrong. It protects speech from any organization that rallies and aggregates political speech. Hence the term aggregate speech was born.
Here is why that is important: without the ability to engage in aggregate speech, where funds from like-minded individuals can be pooled and used to buy ad-time or send mailers or organize precinct walks, campaigns would be entirely controlled by the ultra-wealthy.
Only multimillionaires and billionaires who could personally afford such costs would be able to engage in political speech. Undoing Citizens United effectively cedes political campaigns to the richest individuals in our society.
While individual billionaires like Elon Musk could spend their personal fortunes cloaked in the First Amendment, labor unions and liberal advocacy organizations would be left out in the cold. Groups like the AFL-CIO or Sierra Club or Planned Parenthood (whose national organization spent close to $15 million on political speech in 2024), would be gagged.
The PACs, SuperPACs and 501(c)(4) organizations so often mis-labeled as “dark money groups” for the clickbait effect would be eviscerated. That would be devastating for Democrats.
For example, in 2024 the Future Forward network outspent Trump-aligned Make America Great Again organizations by hundreds of millions of dollars. While they didn’t win, at least they kept it close. Without their contribution the campaign might have been over by Labor Day.
Here in Colorado, Democrats turned the state blue by following that blueprint. Former GOP state Rep. Rob Witwer and journalist Adam Schrager wrote a book about the process, and literally titled it “The Blueprint.” Decades of structural work would be undone by silencing those organizations’ political speech.
I cannot imagine that is an outcome Democrats actually want.
I understand the frustration and the urge to action. The wave of political communications that inundates each of us any time an election approaches can be overwhelming. It gets even worse when so many seem to communicate messages you bitterly oppose. When your preferred candidates do not win, the anger is amplified exponentially.
But cutting off your nose to spite your face is not the answer. In this case, inadvertently hamstringing unions and progressive organizations would be the political equivalent. While it might feel like “doing something” in the moment, it would become an unbearable burden over the long term.
The proposal to cut all entities out of political engagement has not been introduced yet. Hopefully the sponsors will take a longer look at exactly what would happen if they proceed because making Colorado a political playground for only the ultra-wealthy would be a bad idea for all of us.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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