FacebookTwitterGoogle+RedditEmail

Last Hours for Montana

Never, never, never. That appears to be the word from Montana Attorney General Steve Bullock as he charges toward judgment day on Thursday June 21 at the US Supreme Court with no assertion of Montana’s sovereign immunity, its best defense against summary reversal. The case came before the Supreme Court conference last Thursday but was held for further consideration at the Supreme Court conference this Thursday, giving Bullock one more chance. The Montana case is a state-level replay of Citizens United. The corporations suing Montana want the Supreme Court to grant review and then immediately issue a one-line decision summarily reversing the Montana Supreme Court decision upholding Montana’s Corrupt Practices Act that outlaws the kind of private money in elections in Montana that is flooding elections elsewhere.

But the clock is ticking down. When the Court closes its doors Wednesday night, Montana’s last best hope to file a motion asserting sovereign immunity under the 11th Amendment–an action that would effectively void any risk of summary reversal–comes to an end, as described in an article “Montana Citizens United Case Hanging in the Balance.” Any exception to 11th Amendment immunity because a case originated in state court has been overturned, as illustrated by a 2011 Supreme Court decision.

On Thursday, the nine US Supreme Court justices meet in conference to give final consideration to this case. A New York Times article suggested that acceptance of this “historic” case for review and immediate summary reversal will be the likely result. Immediate summary reversal means a decision reversing the Montana Supreme Court decision and ending the case without any briefs, without any hearing, and without its day in court for Montana. In three recent cases the Supreme Court accepted cases and then summarily reversed in a five vote decision.

Some liberal Democrats play down any form of states’s right. But Steve Bullock appears to have made a fundamentalist religion of opposing state sovereign immunity in this case. No matter the extreme facts and how compelling the argument is to use it. And no matter the potential cost to election integrity in Montana and to the country as a whole.

Not so for other attorneys general. For example, in my state of Vermont, Attorney General Bill Sorrell listed sovereign immunity among the affirmative defenses in his response to the 2011 federal court suit against Vermont state officials by Entergy Corporation, which is seeking to keep our aging and leaking Fukushima-type nuclear power plant operating.

But the Vermont Yankee case presents not nearly as strong an argument for denying federal jurisdiction as does Montana’s case. The Montana case is so important, and the facts are so extreme, that all parts of the political spectrum can join in supporting state sovereign immunity in this case. And they can do so without any risk of adverse consequences to other vitally important issues because none of those issues have anywhere near the extreme features the Montana case has.

Two amicus briefs to the US Supreme Court filed by public interest organizations supporting Montana describe how the five most conservative justices on the US Supreme Court, led by Justice Anthony Kennedy, laid out the stringent conditions under which sovereign immunity can trump an individual or corporate suit against state officials in federal court.  If the real party in interest is the state itself, rather than the state officials, then the 11th Amendment by its express terms prohibits the Supreme Court from taking jurisdiction over the suit. The state is the real party in interest when fundamental sovereignty interests of the state or the state treasury would be put at risk if the private or corporate party prevails. Another key factor is whether an alternate way exists, such as for the United States Government to defend its interest in enforcing federal law against the state. All of these line up in the Montana case, as described in the two amicus briefs and in the article, “Montana Citizens United Case Hanging in the Balance.”

First, the words of Montana Governor Brian Schweitzer summarize the sovereign legitimacy interests at stake in this suit: “This business of allowing corporations to bribe their way into government has got to stop.” Governor Schweitzer also said, “This is our government and we are not going to allow any corporation to steal it from us.”

Second, concern that defending states rights in this case would affect immigrant rights in Arizona, and race, gender, labor, and civil and political rights elsewhere does not apply. Just the opposite. In cases involving such rights, either Congress has already passed laws abrogating state’s immunity under the 11th Amendment, or, as in the Arizona case, the United States Government has brought the action to force the state to comply with the Constitution. In the Montana case, Congress has not passed a law requiring the states to obey Citizens United or requiring states to defend themselves in federal court against private suits seeking to overturn state laws restricting money in elections. Nor has the Executive Branch brought suit against the state. Until one of those two things happens Montana should be immune under the 11th Amendment from any corporate suit seeking to overturn its Corrupt Practices Act.

By taking a fundamentalist position against even asserting Montana’s 11th Amendment right not to be sued in federal court Steve Bullock is putting Montana’s 100-year-old anti-corruption law at risk. Bullock is putting even more at risk, for if Montana prevails against the corporate bullies and raiders, Montana sets a template for all the states to free themselves from rule by self-dealing private corporations and plutocrats.

Montana AG Steve Bullock has just hours left to reconsider and to file a one page conditional motion with the US Supreme Court saying that Montana wishes to assert its defense of sovereign immunity under the 11th Amendment if the Court decides to accept the case. His motion can include the request that the Court consider whether it has jurisdiction in view of Montana sovereign immunity before making any decision–including summary reversal–on the merits. Montana could mention the previous cases in which the Supreme Court decided that jurisdiction can be raised at any stage of the proceedings and that jurisdiction is the first thing to be decided–before any decision on the merits, including summary reversal. This way Montana can avoid the heavy risk of summary reversal. Montana should assert its sovereign immunity right today, as the last day it can approaches, or the nation and Montana voters can forever wonder why it did not.

James Marc Leas is a patent attorney in Vermont

More articles by:

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.”

Weekend Edition
December 14, 2018
Friday - Sunday
Andrew Levine
A Tale of Two Cities
Peter Linebaugh
The Significance of The Common Wind
Bruce E. Levine
The Ketamine Chorus: NYT Trumpets New Anti-Suicide Drug
Jeffrey St. Clair
Roaming Charges: Fathers and Sons, Bushes and Bin Ladens
Kathy Deacon
Coffee, Social Stratification and the Retail Sector in a Small Maritime Village
Nick Pemberton
Praise For America’s Second Leading Intellectual
Robert Hunziker
The Yellow Vest Insurgency – What’s Next?
Patrick Cockburn
The Yemeni Dead: Six Times Higher Than Previously Reported
Nick Alexandrov
George H. W. Bush: Another Eulogy
Brian Cloughley
Principles and Morality Versus Cash and Profit? No Contest
Michael Duggin
Climate Change and the Limits of Reason
Victor Grossman
Sighs of Relief in Germany
Ron Jacobs
A Propagandist of Privatization
Robert Fantina
What Does Beto Have Against the Palestinians?
Richard Falk – Daniel Falcone
Sartre, Said, Chomsky and the Meaning of the Public Intellectual
Andrew Glikson
Crimes Against the Earth
Robert Fisk
The Parasitic Relationship Between Power and the American Media
Stephen Cooper
When Will Journalism Grapple With the Ethics of Interviewing Mentally Ill Arrestees?
Jill Richardson
A War on Science, Morals and Law
Ron Jacobs
A Propagandist of Privatization
Evaggelos Vallianatos
It’s Not Easy Being Greek
Nomi Prins 
The Inequality Gap on a Planet Growing More Extreme
John W. Whitehead
Know Your Rights or You Will Lose Them
David Swanson
The Abolition of War Requires New Thoughts, Words, and Actions
J.P. Linstroth
Primates Are Us
Bill Willers
The War Against Cash
Jonah Raskin
Doris Lessing: What’s There to Celebrate?
Ralph Nader
Are the New Congressional Progressives Real? Use These Yardsticks to Find Out
Binoy Kampmark
William Blum: Anti-Imperial Advocate
Medea Benjamin – Alice Slater
Green New Deal Advocates Should Address Militarism
John Feffer
Review: Season 2 of Trump Presidency
Rich Whitney
General Motors’ Factories Should Not Be Closed. They Should Be Turned Over to the Workers
Christopher Brauchli
Deported for Christmas
Kerri Kennedy
This Holiday Season, I’m Standing With Migrants
Mel Gurtov
Weaponizing Humanitarian Aid
Thomas Knapp
Lame Duck Shutdown Theater Time: Pride Goeth Before a Wall?
George Wuerthner
The Thrill Bike Threat to the Elkhorn Mountains
Nyla Ali Khan
A Woman’s Selfhood and Her Ability to Act in the Public Domain: Resilience of Nadia Murad
Kollibri terre Sonnenblume
On the Killing of an Ash Tree
Graham Peebles
Britain’s Homeless Crisis
Louis Proyect
America: a Breeding Ground for Maladjustment
Steve Carlson
A Hell of a Time
Dan Corjescu
America and The Last Ship
Jeffrey St. Clair
Booked Up: the 25 Best Books of 2018
David Yearsley
Bikini by Rita, Voice by Anita
FacebookTwitterGoogle+RedditEmail