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Constitution Provides Tools to Defend State Law Restricting Money in Elections from Citizens United Challenge

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The Supreme Court subsequently went even further to limit the "obvious fiction" on which Young is premised, saying simply: "suits against state officers are barred ... if the suits are, in fact, against the State." Alden v. Maine, 527 U.S. 706 (1999).   Soon after that, the Court broadly undermined the sustaining premise of the Young fiction by holding that "sovereign immunity applies regardless of whether a private plaintiff's suit is for monetary damages or some other type of relief."   Federal Maritime Comm'n v. South Carolina State Ports Auth., 535 US at 765-66 (2002) (Thomas, J.).   Regardless of the relief requested it is now established that "Ex parte Young jurisprudence requires careful consideration of the sovereign interests of the State." Verizon Maryland v. Public Service Commission of Maryland, 535 U.S. 649 (2002) (Kennedy J., concurring).    Last year the Supreme Court reconfirmed that: "The [Young] doctrine...does not apply when the state is the real, substantial party in interest," Virginia Office for Protection and Advocacy v. Stewart, 563 U.S.___ (2011) (Scalia, J.) (internal quotes and citations omitted), to which Chief Justice Roberts, joined by Justice Alito, added a dissent adamantly "refusing to extend Ex parte Young to claims that involve "special sovereignty interests," [by] rote application of the Ex parte Young   fiction."

 

The last case showed disagreement among the justices about whether investigation of a state hospital   was a "special sovereignty interest."   But Virginia Office demonstrates that Roberts and Alito, the two justices appointed after the last major 11th Amendment developments, are now the strongest advocates of the doctrine that Eleventh Amendment immunity fully applies when special sovereignty interests of the state are at risk, and that they would apply that doctrine to situations far beyond such obvious core sovereignty interests as the legitimacy of elections.   Accordingly, the five Supreme Court justices who decided Citizens United have all penned or joined opinions indicating that where significant sovereignty interests of the state are involved in a suit pleaded against state officials, such that the real party in interest is the state itself, the "rote application" of the Young fiction is inappropriate.   Your suggestion that Vermont's campaign finance law should "simply" be subject to such a rote application of Young is thus opposed by five justices, the vote of only one of whom would be sufficient to uphold Vermont's law when added to those of the four justices who oppose Citizens United as a blatant misstatement of first amendment law.

 

In the republican system of government established and protected by the Constitution, nothing is more central to the dignity of a state and no sovereignty interest can be more important than the sovereign legitimacy conferred by elections that faithfully express the consent of the governed.   In upholding Montana's Corrupt Practices Act, for example, the Montana Supreme Court described how that state lost all sovereign dignity and legitimacy in the corrupt era of its "copper kings." In that era, Montana's governmental processes were subordinated to corporate money.   Montana's Supreme Court made an impressive factual record of the impact of corrupt elections on Montana's sovereignty prior to enactment of Montana's election integrity law.   Unfortunately, Montana's Attorney General failed to protect Montana's sovereign dignity with the legal tools the Constitution provides, including 11th Amendment immunity.

 

If a state such as Vermont, in a suit that reaches the US Supreme Court, defends its election integrity law by asserting 11th Amendment immunity, along with the other available defenses against federal judicial interference in this core sovereignty interest described here, each of those five justices will need to choose for the first time between two competing doctrines to which they strongly adhere.   Each such justice's rigid adherence, in six cases since 2006, to empowerment of the 1% by forcing unlimited corporate political spending and corruption on elections would be pitted against his strong support for state sovereign immunity when the fundamental sovereignty interest of the state involved happens to be the legitimacy of its elections.   Again, only one of these five justices need opt for sovereign immunity and join with the four justices who oppose corporate-controlled elections for Vermont to win such a case.

 

As shown, the unsourced assertion in your email of a rule that "sovereign immunity, which is protected by the 11th Amendment . . . simply does not prevent lawsuits challenging state campaign finance laws in federal court" is in fact simply not to be found in any decision of the Court itself.   It could not be found until the judges are forced to make such a choice by an Attorney General who cares sufficiently about both clean elections and states' rights to assert the 11th Amendment defense in a case involving the regulation of money in elections.   Until then the general principle found in the several Supreme Court cases cited above will provide strong support for asserting the sovereign immunity defense and for arguing that the Young fiction does not apply where a state's core sovereignty interests are challenged.

 

You also express concern about the prospect of attorney's fee awards.   The rule that attorney's fees would be allowed in a valid Young action, though such an award would "resemble a money judgment payable out of the state treasury," as prohibited by Edelman v. Jordan, 415 U. S. 651 (1974), rests on the authority of Hutto v. Finney, 437 U. S. 678 (1978) and Missouri v. Jenkins, 491 U.S. 274 (1989). Hutto involved the rights of an individual prisoner while Jenkins involved racial discrimination against African-American students. In neither of these Young actions was the sovereign legitimacy of the state put at risk by the suit. Indeed, in each case, the sovereign legitimacy of the state was arguably enhanced by the outcomes of the suits. These cases demonstrate the actual and proper application of Young.

 

Moreover, the fact that "federal courts have repeatedly addressed the constitutionality of state campaign finance laws," as you say, does not make such laws less central to Vermont's sovereign legitimacy and hence any less exempt from the Young fiction.   The federal court involvement merely illustrates the failure of Attorneys General defending challenges to state election integrity laws to assert their states' sovereign immunity from such suits. For example, Attorney General Bullock failed to do so in the Montana case -- thereby wasting public resources on a losing strategy.

 

The Montana AG could have but did not use the open opportunity to present a previously unlitigated issue to the US Supreme Court, which could at least have avoided the humiliation of a summary reversal of the Montana Supreme Court decision upholding Montana election law. The Montana AG could have tested whether or not the five justices--who have opposed the Ex Parte Young exception when the sovereign legitimacy of a state is involved--would also refuse to allow Young to be applied to an election finance case in which corporations seek to freely buy state policies, contracts, laws, regulations, politicians, and their elections -- essentially putting the core of the state's sovereign   powers at risk.   

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