FacebookTwitterGoogle+RedditEmail

Montana Citizens United and the Eleventh Amendment

by RUSSELL MOKHIBER

In 2010, the Montana Supreme Court dealt a blow to the United States Supreme Court decision in Citizens United. The Montana Supreme Court, in Western Tradition Partnership v. Attorney General, challenged the validity of the Citizens United decision as applied to state elections, and upheld Montana’s law banning corporate spending on elections.

Western Tradition Partnership has since changed its name to American Tradition Partnership (ATP) and is now asking the Supreme Court to reverse the Montana Supreme Court decision. Montana’s Attorney General Steve Bullock, in response, is asking the Supreme Court to reject the company’s request for a hearing.

There is an argument that might sway the five conservative Supreme Court justices to Bullock’s cause. But it’s an argument that liberal Democrats tend to shy away from and that is, at the same time, near and dear to the hearts of conservative Republicans on and off the Supreme Court — the Eleventh Amendment.

Enter public interest attorneys Rob Hager and Carl Mayer. Mayer recently won an important victory in federal court in New York City overturning a section of the National Defense Appropriations Act that permitted indefinite detentions of citizens in the US.

Hager and Mayer have filed amicus briefs with the U.S. Supreme Court on behalf of their clients – The Eleventh Amendment Movement and Essential Information.

The briefs argue that the ATP’s attempt to overturn Montana’s law should be rejected because the U.S, Constitution’s 10th and 11th Amendments prohibit the Supreme Court from hearing this case against the state of Montana.

The Eleventh Amendment prohibits lawsuits by private parties against states in federal court.

Hager and Mayer are concerned that unless the Montana Attorney General asserts Montana’s sovereign immunity in it’s own filings, the Supreme Court may ignore the jurisdictional issue.

The earliest deadline for raising the jurisdictional issue is June 13 and Hager and Mayer have formally requested that the Attorney General of Montana file a motion asserting its states rights defense by that date.

“Since there are already four justices ready to support Montana because they disagree with Citizens United on its merits, the Eleventh Amendment argument need only be adopted by one of the five justices who strongly support states’ rights in order to win this case,” Mayer said. “We think, and Montana seems to agree, that there is a reasonable likelihood of success of Montana’s states’ rights defense. At the very least, their chances are greatly improved and there is absolutely no legal downside to raising this defense.”

Hager and Mayer say that when they suggested to the Montana Attorney General’s office that the Attorney General raise the jurisdictional issue before the Supreme Court, an Assistant Attorney General said that his office was reluctant to raise Eleventh Amendment issues because of “the potential implications in other contexts, if your theories were adopted.”

“This [statement] indicates that you do contemplate that these arguments are powerful enough to win this case,” Hager wrote in response. “On this point we would seem able to agree.”

Hager and Mayer have tried without success to obtain more information from the office of Attorney General about these “implications” and “other contexts” – to no avail.

When asked by Corporate Crime Reporter about this statement, Assistant Attorney General James P. Molloy said he was heading into a conference call and promised he would call back within two hours with an explanation as to what the office meant by “implications” of raising the Eleventh Amendment issue.

He never did call back to explain.

Instead, the Attorney General’s spokesperson John Doran said “we expect on June 18 the Supreme Court will decide the course of action on this case.”

“We have filed our brief. We don’t intend to make any commentary until after the Supreme Court decides how it will proceed.”

Mayer said “since this case is Montana’s and the country’s latest best chance for turning around the flood of money in politics caused by the Citizens United case, it is difficult to guess why Montana would refrain from making what they agree is the potential winning states rights argument out of fear about the effect victory of that argument might have on future unnamed contexts.”

Russell Mokhiber edits the Corporate Crime Reporter.

 

Russell Mokhiber is the editor of the Corporate Crime Reporter..

More articles by:

CounterPunch Magazine

minimag-edit

August 29, 2016
Eric Draitser
Hillary and the Clinton Foundation: Exemplars of America’s Political Rot
Patrick Timmons
Dildos on Campus, Gun in the Library: the New York Times and the Texas Gun War
Jack Rasmus
Bernie Sanders ‘OR’ Revolution: a Statement or a Question?
Richard Moser
Strategic Choreography and Inside/Outside Organizers
Nigel Clarke
President Obama’s “Now Watch This Drive” Moment
Robert Fisk
Iraq’s Willing Executioners
Wahid Azal
The Banality of Evil and the Ivory Tower Masterminds of the 1953 Coup d’Etat in Iran
Farzana Versey
Romancing the Activist
Frances Madeson
Meet the Geronimos: Apache Leader’s Descendants Talk About Living With the Legacy
Nauman Sadiq
The War on Terror and the Carter Doctrine
Lawrence Wittner
Does the Democratic Party Have a Progressive Platform–and Does It Matter?
Marjorie Cohn
Death to the Death Penalty in California
Winslow Myers
Asking the Right Questions
Rivera Sun
The Sane Candidate: Which Representatives Will End the Endless Wars?
Linn Washington Jr.
Philadelphia District Attorney Hammered for Hypocrisy
Binoy Kampmark
Banning Burkinis: the Politics of Beachwear
Weekend Edition
August 26, 2016
Friday - Sunday
Louisa Willcox
The Unbearable Killing of Yellowstone’s Grizzlies: 2015 Shatters Records for Bear Deaths
Paul Buhle
In the Shadow of the CIA: Liberalism’s Big Embarrassing Moment
Rob Urie
Crisis and Opportunity
Charles Pierson
Wedding Crashers Who Kill
Richard Moser
What is the Inside/Outside Strategy?
Dirk Bezemer – Michael Hudson
Finance is Not the Economy
Jeffrey St. Clair
Roaming Charges: Bernie’s Used Cars
Margaret Kimberley
Hillary and Colin: the War Criminal Charade
Patrick Cockburn
Turkey’s Foray into Syria: a Gamble in a Very Dangerous Game
Ishmael Reed
Birther Tries to Flim Flam Blacks  
Brian Terrell
What Makes a Hate Group?
Andrew Levine
How Donald Trump Can Still be a Hero: Force the Guardians of the Duopoly to Open Up the Debates
Howard Lisnoff
Trouble in Political Paradise
Terry Tempest Williams
Will Our National Parks Survive the Next 100 Years?
Ben Debney
The Swimsuit that Overthrew the State
Ashley Smith
Anti-imperialism and the Syrian Revolution
Andrew Stewart
Did Gore Throw the 2000 Election?
Vincent Navarro
Is the Nation State and Its Welfare State Dead? a Critique of Varoufakis
John Wight
Syria’s Kurds and the Wages of Treachery
Lawrence Davidson
The New Anti-Semitism: the Case of Joy Karega
Mateo Pimentel
The Affordable Care Act: A Litmus Test for American Capitalism?
Roger Annis
In Northern Syria, Turkey Opens New Front in its War Against the Kurds
David Swanson
ABC Shifts Blame from US Wars to Doctors Without Borders
Norman Pollack
American Exceptionalism: A Pernicious Doctrine
Ralph Nader
Readers Think, Thinkers Read
Julia Morris
The Mythologies of the Nauruan Refugee Nation
George Wuerthner
Caving to Ranchers: the Misguided Decision to Kill the Profanity Wolf Pack
Ann Garrison
Unworthy Victims: Houthis and Hutus
Julian Vigo
Britain’s Slavery Legacy
FacebookTwitterGoogle+RedditEmail