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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