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.

 

More articles by:

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

Weekend Edition
January 19, 2018
Friday - Sunday
Paul Street
Dr. King’s Long Assassination
David Roediger
A House is Not a Hole: (Not) Caring about What Trump Says
George Burchett
How the CIA Tried to Bribe Wilfred Burchett
Mike Whitney
Trump’s Plan B for Syria: Occupation and Intimidation
Michael Hudson – Charles Goodhart
Could/Should Jubilee Debt Cancellations be Reintroduced Today?
Marshall Auerback – Franklin C. Spinney
Boss Tweet’s Generals Already Run the Show
Andrew Levine
Remember, Democrats are Awful Too
James Bovard
Why Ruby Ridge Still Matters
Wilfred Burchett
The Bug Offensive
Brian Cloughley
Now Trump Menaces Pakistan
Ron Jacobs
Whiteness and Working Folks
Jeffrey St. Clair
The Keeper of Crazy Beats: Charlie Haden and Music as a Force of Liberation
Robert Fantina
Palestine and Israeli Recognition
Jan Oberg
The New US Syria “Strategy”, a Recipe For Continued Disaster
ADRIAN KUZMINSKI
The Return of the Repressed
Mel Gurtov
Dubious Partnership: The US and Saudi Arabia
Robert Fisk
The Next Kurdish War Looms on the Horizon
Lawrence Davidson
Contextualizing Sexual Harassment
Jeff Berg
Approaching Day Zero
Karl Grossman
Disaster Island
Thomas S. Harrington
What Nerve! In Catalonia They are Once Again Trying to Swear in the Coalition that Won the Most Votes
Pepe Escobar
Rome: A Eulogy
Robert Hunziker
Will Aliens Save Humanity?
Jonah Raskin
“Can’t Put the Pot Genie Back in the Bottle”: An Interview with CAL NORML’s Dale Gieringer
Stepan Hobza
Beckett, Ionesco, and Trump
Joseph Natoli
The ‘Worlding’ of the Party-less
Julia Stein
The Myths of Housing Policy
George Ochenski
Zinke’s Purge at Interior
Christopher Brauchli
How Trump Killed the Asterisk
Rosemary Mason - Colin Todhunter
Corporate Monopolies Will Accelerate the Globalisation of Bad Food, Poor Health and Environmental Catastrophe
Michael J. Sainato
U.S Prisons Are Ending In-Person Visits, Cutting Down On Reading Books
Michael Barker
Blame Game: Carillion or Capitalism?
Binoy Kampmark
The War on Plastic
Cindy Sheehan – Rick Sterling
Peace Should Be Integral to the Women’s March
Kevin Zeese - Margaret Flowers
No Foreign Bases!
Matthew Stevenson
Into Africa: Across the Boer Heartland to Pretoria
Joe Emersberger
What’s Going On in Ecuador? An Interview With Wladimir Iza
Clark T. Scott
1918, 1968, 2018: From Debs to Trump
Cesar Chelala
Women Pay a Grievous Price in Congo’s Conflict
Michael Welton
Secondly
Robert Koehler
The Wisdom of Mass Salvation
Seth Sandronsky
Misreading Edu-Reform 
Ann Garrison
Full-Spectrum Arrogance: US Bases Span the Globe
Louis Proyect
Morality Tales on the American Malaise: the Films of Rick Alverson
David Yearsley
Winston and Paddington: Marianelli’s Musical Bears
FacebookTwitterGoogle+RedditEmail