@scott i think it’s worth a shot (and generally think we should think about revitalizing the idea purposeful charters and activity ultra vires), but i don’t think it will work. 1/

@scott it’s worth recalling that this Supreme Court has been extraordinarily flexible and creative in weaponizing the Constitution to achieve its conservative members political ends. 2/

@scott i think the piece overstates how difficult it would be for the Supreme Court to simply say, “it’s fine and true that corps only exist as creatures of state law, and states can give or withhold any powers they wish to corporations. so states can of course deny corps the power to campaign-spend when granting charters.” 3/

@scott “however, if a corp violates that condition of the charter, and the state imposes *any penalty at all* for that violation, it is substantively punishing the speech [as this Court has absurdly defined it] of the people who constitute the corporation.” 4/

@scott so the charter limitation would be perfectly legal, but any enforcement would not be. just like states could, in the Roe v Wade era have laws on the books against abortion, but could not enforce them. 5/

@scott in general, i think imagining legal cleverness can circumvent this Court reaching an end its conservative majority wishes to reach is worth trying but unlikely to succeed. legal reasoning permits infinite flexibility, even (perhaps especially as KBJ has pointed out) the kind that styles itself originalist. 6/

@scott and even where there is almost no colorable legal reading that would justify a practice, this Court has repeatedly (the Texas abortion bounty law, Trump v United States) just barreled ahead to do what it wants with naked abandon of reasonable interpretations of precedent and text. 7/

@scott i think doing what they want here would, in relative terms, not be a huge stretch. 8/

@scott i also worry about the political economy between states, a point briefly discussed. a state that pioneered this would be putting their own corps at a disadvantage, and perhaps depriving their own citizens of businesses they might value. 9/

@scott you’d really need a very big state to make the jump, and do it extraterritorially (as the piece suggests, applying the same limitation to out-of-state corps doing business there), so that the effect, assuming enforceability, is likely to be corps refrain from spending, not avoid the state. so ideally, both CA and NY harmonize adoption of these proposals at all once. if you’re Vermont, you can’t go first. Delaware never will go. 10/

@scott i do think it’s worth trying! every time this Court acts egregiously it’s another arrow in our quiver when we make the case to reform this Court out of existence in anything like its present form. and given the balance of merits, you never know, the Court may rule at a moment where it’s nervous about its position and feels like it has to pretend to play fair. 11/

@scott so absolutely let’s try it! as you say, at least we can force upon them the embarrassment of their open hackery. /fin