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The Last Best Chance for Stemming the Tide of Big Money in Politics
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.