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Why Montana’s “Citizens United” Loss at the Supreme Court was Avoidable

by JAMES MARC LEAS

The humiliating summary reversal suffered by Montana in the US Supreme Court over its restrictions on campaign contributions could have been avoided, according to two attorneys who filed amicus (friend-of-the-court) briefs in the case.

In a statement announcing its decision, the Court majority indicated what would have been needed to avoid summary reversal: a new argument not previously raised in Citizens United or a fact that distinguished Montana’s case from the federal case decided in Citizens United. The Supreme Court said:

Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

“Montana Attorney General Steve Bullock had a powerful constitutional argument–11th Amendment sovereign immunity,” said attorney Rob Hager, who filed an amicus brief in the case for Essential Information, a public interest organization founded by Ralph Nader. Under the 11th Amendment, as applied by the Supreme Court, “nonconsenting States may not be sued by private individuals [or corporations] in federal court.”

“The constitutional right of states not to be sued by a private entity in federal court was not and could not have been raised in the federal election law case of Citizens United,” Hager said. “Sovereign immunity therefore would have been just the sort of new constitutional issue that would have meaningfully distinguished this Montana state case from Citizens United.”

In addition, “11th Amendment sovereign immunity is a constitutional right strongly favored by the five Justices whole ruled against Montana,” said Hager.“As indicated by the court in its decision, had Montana raised such a new constitutional issue, the court would have addressed it, and that would have prevented the summary reversal. Moreover, sovereign immunity could well have been a winning argument for Montana since it only needed to attract a single vote to convert a loss into victory.”

The summary reversal of the Montana Supreme Court’s decision upholding the state’s Corrupt Practices Act meant that the Supreme Court ended the case with no briefs, no hearing, and no opportunity for a public outpouring of support for Montana. The Corrupt Practices Act, passed by citizens initiative, had been on the books in Montana since 1912 and made spending by corporations for or against a candidate illegal.

Citizens United was only decided in 2010 and an even harsher election financing decision followed in an Arizona case in June 2011. With no changes in the five justices or in their views, few experienced commentators expected the court to use the Montana case to overturn Citizens United–despite the flood of money corrupting the 2012 elections. Most expected exactly what happened–summary reversal–since Montana raised no clearly distinguishing argument.

Hager and attorney Carl Mayer, among others, repeatedly pressed Bullock and his staff to assert the state sovereign immunity argument they described in the amicus briefs they each filed in the Montana case. Mayer filed an amicus brief for a public interest organization called The First Amendment Movement. The two briefs presented facts and arguments for there being no exception to Montana’s 11th Amendment sovereign immunity in this case.

Unfortunately for Montana, the defense of sovereign immunity is not raised by the court itself (sua sponte). Nor can it be effectively asserted by a friend-of-the-court. Sovereign immunity must be asserted by the state itself. This Montana Attorney General Steve Bullock repeatedly refused to do.

The amicus briefs filed by the two attorneys asked the Supreme Court to refuse to hear the case based on lack of jurisdiction under the 11th Amendment. Refusing jurisdiction would have been a major victory for Montana, and it would effectively have reversed Citizens United there. The victory in Montana would have enabled other states to adopt new legislation, or uphold their existing legislation, restricting money in elections.

The amicus briefs described a long line of cases that defined and advanced applicability of the 11th Amendment and that placed limits on historic exceptions to its use. The five justices who decided Citizens United are the strongest advocates that the federal courts respect the “dual sovereignty” of our federal system, and that the federal courts therefore refuse jurisdiction when a private party sues a state in a matter that strikes fundamentally at state sovereignty.

As Mayer told a Montana newspaper in the days leading up to the decision, “You have a conservative five-person majority on the court, and they all have embraced the 11th Amendment and state’s rights arguments in other contexts. For an attorney at any level to not raise a jurisdictional issue, especially in a case like this, is a serious litigation error.”

For example, in a 1999 case affirming Maine’s 11th Amendment sovereign immunity, Justice Kennedy (who also wrote the decision in Citizens United) wrote, “When the Federal Government [including the US Supreme Court] asserts authority over a State’s most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government.” Elections are the most fundamental of all state “political process,” being the source of their legitimacy.

Among the great advantages of asserting the 11th Amendment is that the US Supreme Court justices who joined Justice Kennedy’s ruling in Citizens United have all written or joined in strong opinions using the 11th Amendment to toss out private party suits against state officials.

Because the approach is so strongly favored by those five justices, asserting 11th Amendment sovereign immunity substantially increases a state’s probability of success in defending against a private suit to overturn its election financing law in federal court. The odds were even better in the 5-4 lineup expected for the Montana case since only one of those five conservative justices need have been persuaded for Montana to have won the case.

Previous Supreme Court 11th Amendment decisions show that the strategy for Montana would have been especially compelling because neither Congress nor the executive branch supported the position taken by the court in Citizens United. In addition, public opposition to private money flooding elections to corrupt politicians and purchase policies favorable to corporations is overwhelming. The assertion of 11th Amendment sovereign immunity would have been further enhanced if Montana had urged state attorneys general to sign on to an amicus brief defending their state’s constitutional right to be free of federal court interference in their state elections.

Unfortunately, and inexplicably, Montana’s State Attorney General Steve Bullock did not assert the state’s sovereign immunity under the 11th Amendment despite encouragement to do so from the lawyers who wrote the amicus briefs. Hager said that “private and public communications from Bullock’s office indicated that the Attorney General thought that the 11th Amendment defense could succeed. But as an Assistant Attorney General said, Bullock’s office was reluctant to raise Eleventh Amendment issues because of ‘the potential implications in other contexts, if your theories were adopted.’” Bullock’s office thus acknowledged that his refusal to assert sovereign immunity facilitated the Supreme Court summary reversal.

Since the 11th Amendment has long been used, and is continuing to be used by the US Supreme Court in other contexts to toss out cases against state officials, its use for something worthwhile–to protect election integrity–could not actually initiate the slippery slope feared by Bullock.

The constitution provides checks and balances, including state level checks on the federal courts. The plan of the constitution provides a strategy for states to resist decisions by the US Supreme Court that violate the constitution. The amicus brief submitted by Essential Information quoted James Madison who pointed out that resisting those types of decisions is an essential task of the states: “The judicial department [the federal courts] also may exercise or sanction dangerous powers beyond the grant of the Constitution.” Madison considered it the “duty” of a state – though not of “the other departments of the government” – to object to usurpation by “the judicial department.” Otherwise the “delegation of judicial power would annul the authority delegating it,” and by such “usurped powers, subvert [the Constitution] for ever, and beyond the possible reach of any rightful remedy.”

In discharging Madison’s “duty,” the states are empowered by the fact, as Justice Frankfurter wrote in a concurring opinion, “the ultimate touchstone of constitutionality is the Constitution itself and not what we [the justices] have said about it.”

Hager pointed out that “Under Article VI, clause 3 of the constitution, Attorney General Bullock is ‘bound by oath … to support’ the constitution. 11th Amendment sovereign immunity is part of the Constitution. Bullock was therefore bound by oath to support 11th Amendment sovereign immunity. Upholding his constitutional oath is especially important where the most fundamental of all state political processes–assuring election integrity–is at stake.”

Even with the summary reversal in the Montana case, other states can still invoke their 11th Amendment sovereign immunity to defend their own anti-corruption legislation from suit by corporations seeking to open the floodgates of private money in elections.

While the views of the five conservative justices bode well under the 11th Amendment, not so under any new amendment that seeks to overrule their handiwork in Citizens United. These five justices and their conservative colleagues reversed or twisted nearly two centuries of 1st Amendment case law to define money as speech and justify unlimited expenditures in elections in the line of cases leading to Citizens United. 1st Amendment cases had long considered whether a regulation is content-neutral, served a substantial government interest, and left open ample alternative means of communication. Having ignored these rules, the five conservative justices could equally misconstrue the virgin text of any new amendment seeking to overrule Citizens United.

The results of Supreme Court review of a new Amendment could be worse than useless as any new text passed by our heavily corrupted Congress would legitimize court jurisdiction over the manner of elections in states–thus revoking 11th Amendment protection for state election laws–while the court’s interpretation of the new text could do further unforeseen damage.

This likelihood weighs heavily against the campaign for a new amendment sponsored by fund-raising organizations seeking to capitalize on opposition to Citizens United. With most Congress members owing their jobs to the present system in which they bask in the largesse of the one percent, successfully drafting and gaining wide agreement on the text of a new amendment and  getting it adopted in both houses of Congress by 2/3 majorities without degrading changes is especially unlikely. Then getting it ratified by 3/4 of the states and then having the five members of the Supreme Court avoid the temptation to misconstrue its text are each even more unlikely.

The 11th Amendment is already written, passed, ratified, and interpreted. It has strong support from the Supreme Court majority. Its use by states to assert their authority over their most fundamental political process–elections–brings the case out of any exception to 11th Amendment sovereign immunity.

The people who drafted the 11th Amendment, and those who drafted the Constitution a few years earlier, understood that keeping the Supreme Court out of questions like state election financing is essential to maintain rule of, by, and for the people. They also gave Congress authority with the Exceptions Clause in Article III Section 2 to enforce 11th Amendment sovereign immunity if the Supreme Court refuses.

Thus, we already have the amendment we need for effectively reversing Citizens United on a state-by-state basis. Our task is far less burdensome than obtaining a new Amendment. Our task is to demand that our state legislators maintain existing laws or pass new laws restricting private money in elections. And demand that our state attorneys general assert 11th Amendment sovereign immunity when those laws are challenged by private individuals or corporations.

James Marc Leas is a patent lawyer in South Burlington, Vermont.

James Marc Leas is a patent attorney and a past co-chair of the National Lawyers Guild Palestine Subcommittee. He collected evidence in Gaza immediately after Operation Pillar of Defense in November 2012 as part of a 20 member delegation from the U.S. and Europe and authored or co-authored four articles for Counterpunch describing findings, including Why the Self-Defense Doctrine Doesn’t Legitimize Israel’s Assault on Gaza. He also participated in the February 2009 National Lawyers Guild delegation to Gaza immediately after Operation Cast Lead and contributed to its report, “Onslaught: Israel’s Attack on Gaza and the Rule of Law.”

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