Likewise, Mr. Sorrell did not assert sovereign immunity as amicus in the Montana case, in Randall v. Sorrell (2006), or in a Vermont election financing case recently before Judge Sessions. Mr. Sorrell now declines to defend Vermont's law at all in future cases and announced on July 25 he will seek a change in the law, opening the floodgates to money in Vermont state elections.
The public comment by the Montana Attorney General's office in defense of his failure to assert sovereign immunity to defend Montana's law was not that it was a losing argument, as your email suggests. The reason given, the 11th Amendment's "implications in other contexts," was more a concern that the strategy would succeed and set a precedent! The public record thus shows that AG Bullock did not raise the state's sovereign immunity defense because he does not support the 11th Amendment itself, although his oath of office required him to support the Constitution, of which the 11th Amendment is an essential part.
Since Vermont Attorney General Sorrell recently asserted 11th Amendment sovereign immunity in a case now in federal district court in which Mr. Sorrell is seeking to prevent Vermont state workers from receiving overtime pay, one cannot conclude that Mr. Sorrell shares Montana Attorney General Bullock's opposition to asserting 11th Amendment sovereign immunity because of "implications in other contexts." As Mr. Sorrell appears to support the 11th amendment--even in a context in which the state is seeking to revoke the legal and contractual rights of its own workers--he could surely also assert Vermont's sovereign immunity to avoid capitulation to out-of-state interests seeking to undermine Vermont election integrity who have no contractual claims whatsoever on the state.
Protecting civil liberties of individuals and protected groups
Under its 14th amendment Section 5 powers, Congress has expressly abrogated sovereign immunity for certain civil rights actions. Unquestionably, if it wanted to do so, Congress could also abrogate a state's immunity from certain suits that challenge election anti-corruption laws on 1st Amendment grounds. But, under the 14th Amendment, only Congress can abrogate sovereign immunity, and Congress has not done so regarding election financing. Though the Lochner era Court gave itself the power to abrogate sovereign immunity in the Young case in order to gut the 11th Amendment restriction on its power to protect the interests of railroads, the contemporary Court recognizes that the Constitution does not allow the Court to abrogate 11th Amendment immunity in a case involving a state's sovereign legitimacy in the absence of congressional authority under Section 5 of the 14th Amendment.
The Supreme Court has held that such congressional abrogation must be specifically applicable to the case in which it is invoked. "A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). Congress has enacted no such specific abrogation of state immunity from private suit with respect to restrictions on spending in elections. In fact Congress showed its support for such laws by passing its own laws restricting spending in elections that the Court invalidated.
The
most closely analogous federal civil rights law would be the landmark Voting
Rights Act of 1965. While that law does abrogate 11th Amendment
immunity as a means to protect the federal civil right to vote free from
discrimination, it does not protect the "civil right" to buy elections and influence
politicians by financing their "independent" electioneering broadcasts.
Vermont election law restrictions are distinguished from cases in which the federal courts have properly enforced the civil rights of American citizens by the fact that enforcing civil rights does not put the sovereign legitimacy of the state at risk. For example, when a state was preventing citizens from voting based on race, this state action in violation of federal civil rights laws undermined the state's sovereign legitimacy; enforcing the federal law enhanced the state's sovereign legitimacy. By contrast, Vermont's election finance restrictions protect Vermont sovereign legitimacy by protecting the right of Vermont voters to have elections that reflect the will of the people and not the will of monied interests that corruptly profit from the influence they purchase.
The
Constitution in Article 4, Section 4, guarantees Vermonters' the right to a
republican form of government--a government in which each person has an equal
voice and an equal vote: as Lincoln said a government of, by, and for the
people. This right will be denied or abridged if Vermont election finance law
is left undefended in the future or is amended by the legislature so as to
legalize bogus elections dominated by vast infusions of private money, just as
federal elections have become. We therefore urge the Vermont Attorney General
to assert 11th Amendment immunity and the other defenses described
here to avoid this sure path to tyranny.
Citizens United
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