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Montana Citizens United Case Hanging in the Balance

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  Montana Citizens United Case Hanging in the Balance

  James Marc Leas

Attorneys who filed amicus briefs to the US Supreme Court for two public interest organizations supporting Montana in its state version of Citizens United have issued increasingly sharp calls for urgent action by Montana Attorney General Steve Bullock to assert sovereign immunity as a Supreme Court deadline approaches on Wednesday June 13 in advance of the Supreme Court conference that could decide the matter the next day. Surprisingly, the Montana Attorney General has not so far asserted sovereign immunity--Montana's constitutional right not to be sued by a private party in federal court without its consent.

An article, " Citizens United Montana and the Eleventh Amendment," published in Corporate Crime Reporter on June 9, 2012, had the two attorneys concerned that "unless the Montana Attorney General asserts Montana's sovereign immunity in its own filings, the Supreme Court may ignore the jurisdictional issue." A news release circulated by The Eleventh Amendment Movement on June 11 quotes Attorney Carl Mayer saying, "in my opinion, this is a basic and potentially serious litigation error, not to raise jurisdictional issues when available. At the very least, Montana's chances would be greatly improved and there is absolutely no legal downside to raising this defense. But time is running out." Mayer recently won an important constitutional victory in a federal court in New York that overturned a section of the National Defense Authorization Act (NDAA) that permitted indefinite detentions of citizens in the U.S.

State sovereign immunity is a right fundamental to the constitutional plan of the founding convention that was reaffirmed by the 11th Amendment adopted in 1795. The public interest attorneys believe that the Montana election financing case is just the sort of situation for which the constitutional provision was designed and is most appropriate. Conveniently, recent cases have overturned any exception to 11th amendment immunity because a case originates in state court.

While some have been calling for a constitutional amendment to overturn Citizens United, the Constitution already has amendments, the 10th and 11th Amendments, that together can be used to overturn Citizens United on a state-by-state basis.

The suit against Montana by corporate entities ( American Tradition Partnership v. Bullock) seeks to enforce the 2010 US Supreme Court decision in Citizens United to overturn a December 2011 decision by the Montana Supreme Court to uphold Montana's century-old prohibition on corporate money in elections.

If the US Supreme Court dismisses the suit against Montana for lack of jurisdiction based on sovereign immunity, then the decision by the Montana Supreme Court will remain good law in Montana. The Montana law would continue to protect elections in Montana from the corrupting influence of unlimited corporate money in elections. Other states could enforce or enact similar legislation notwithstanding the Citizens United decision overturning federal election finance law. Thus, the Montana case has a vital role, not only in protecting democracy in Montana, but also as precedent for the other 49 states. The Montana case presents a strategy for overturning the disastrous results of Citizens United state by state.

The corporations attacking Montana spent 10 pages in their petition for certiorari requesting summary reversal of the Montana Supreme Court decision. Summary reversal means no briefs, no hearing, no arguments--and maybe even a smothering of public controversy and opposition. Possibly just a short statement from the US Supreme Court that the decision of the Montana Supreme Court is reversed will get little mass media attention. And that's the end of it for Montana and a bad start for the state-by-state strategy.

A New York Times article, " Mystery of Citizens United Sequel Is Format, Not Ending," on June 11, 2012 notes:

The Supreme Court will almost certainly agree to review the Montana case. At the same time, there is little reason to think the five justices in the majority in Citizens United have changed their minds.

The main question on Thursday, then, will be how the court will reverse the Montana decision. It could call for briefs, set the case down for argument in the fall and issue a decision months later. Or it could use a favorite tool of the court led by Chief Justice John G. Roberts, Jr. -- the summary reversal.  

One can imagine few results more disappointing to the cause of removing the corrupting influence of money from elections and to the dignity of Montana than to lose this case based on summary reversal. The Supreme Court will consider whether to review the Montana Supreme Court decision and, if so, could immediately decide to summarily reverse the Montana Supreme Court decision as early as Thursday, June 14.

The Supreme Court could, if it wished, issue a statement justifying summary reversal if no new issue is brought forward for consideration beyond the issues the Court already considered in Citizens United in 2010.

The extreme circumstances of this case make an assertion of sovereign immunity especially powerful, and not just because it would present the kind of new issue that would preclude summary reversal. Just as important, the five conservative US Supreme Court justices who decided Citizens United are also the strongest supporters of 11th Amendment sovereign immunity. The extreme facts of the Montana case align precisely with reasoning these five justices have used in other cases. The extreme facts also make highly unlikely the concern about abuse of sovereign immunity raised in an email by the Montana Assistant Attorney General and quoted in the Corporate Crime Reporter article: "the potential implications in other contexts if your theories are adopted."

Winning the case by invoking sovereign immunity is the only way that difficulties for other contexts could be established. Therefore, the Montana Assistant Attorney General's statement implies agreement that asserting sovereign immunity is likely a winning strategy for Montana. The troubling conclusion is that the Montana Attorney General knows he has a potentially winning defense based on a constitutional provision in this vitally important case, but he is unwilling to assert that defense for speculative reasons about other contexts having nothing to do with the case at hand.

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