In Montana's Supreme Court
decision and in Montana's response to the US Supreme Court, Montana presented
facts and arguments showing a history of undue influence of money on the
outcome of Montana elections--until Montana voters adopted its Corrupt
Practices Act by ballot initiative in 1912. Before that law was passed,
Montana's decision and brief show the unbearable distortion of the consent of
the governed produced by mining interest money in elections, the undermining of
the legitimacy of government when politicians in Montana were bought and sold,
the gross deformation of the democratic form of government, and the replacement
of rule of, by, and for the people with rule of, by, and for self-interested
But similar arguments did not sway the five conservative justices who made up the majority on the US Supreme Court in the Citizens United case in 2010, nor in an Arizona election financing case in 2011. The vote of at least one of those five justices will be needed if Montana hopes to win its case. Those five justices appear to need something beyond the argument based on the corrupting influence of money in elections if Montana is to avoid summary reversal and prevail in the final decision.
What is most starkly different
about the Montana case than the 2010 Citizens
United case is that, instead of the US government being the defendant and
the federal McCain-Feingold law being at stake in the suit by a corporate
plaintiff, in the Montana case, a state is the defendant and a state law is at
stake. That makes 11th Amendment sovereign immunity a potential factor in the
Montana case that had no possibility of playing a role in the Citizens United case. A potential factor
if the Montana Attorney General will
assert the defense by filing a conditional motion before the Supreme Court
holds its conference and considers summary reversal as early as June 14.
Here are the facts that distinguish this case from Citizens United: the suit was commenced and prosecuted by private parties against the Attorney General and the Commissioner of the Commission for Political Practices of Montana in their official capacities without the consent of Montana. Although state officials are named in their official capacities, the five conservative Supreme Court justices have repeatedly rejected "a rote application of the Ex ParteYoung fiction" under which a private suit against a state can be allowed if, instead of naming the state, its officials are named in their individual capacities.
In this case the Young fiction
should not apply because the State of Montana is the real, substantial party in
o The suit
seeks to block a state election law enacted by the legislature, signed by the
governor, defended by the attorney general, and upheld by the Montana Supreme
o The suit goes to the fundamental sovereignty interest of the State of Montana to provide elections that represent the will of the people
o The suit
threatens the state treasury of Montana as private corporate interests use
election expenditures to buy political influence and policies that amount to a
raid on the state treasury
o Alternative remedies were and are available to challenge Montana's law, including the suit in the Montana state court which the corporations lost, and a suit by the United States
In a Hart Research (2010) poll 95% of Americans agreed that "corporations spend money on
politics to buy influence/elect people favorable to their financial
A study by professors at the University of Kansas found that private sector lobbying expenditures related to a federal law exempting repatriated corporate earnings from taxation yielded a return on investment in excess of $220 for every $1 spent on lobbying --and an equal amount lost to the US Treasury.
Since many state attorneys
general, county attorneys, and judges are elected, these same corporate raiders
of the state treasury can also use the influence they obtain from election
expenditures to buy their way out of criminal accountability. Thus, in addition
to the state treasury being at risk, the criminal justice system also becomes
even more tilted in favor of the 1%.
These sovereign concerns were described by Montana Governor Brian Schweitzer: " 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."
Nothing is more fundamental to
the sovereignty interests of a state than the integrity of elections upon which
state sovereignty and legitimacy depend. Montana, as a sovereign state, also
has a profound sovereignty interest in retaining the power to protect itself
from " impairment or destruction, whether threatened by force or by
corruption." Allowing this suit to proceed and petitioners to
prevail in federal court would defy both of these most essential sovereign
interests of Montana. In essence, by forcing state elections to be undermined
by a flood of corporate money, the judicial branch would be destroying, rather than
fulfilling the federal government's responsibility to "guarantee to every state
in the union a republican form of government," as provided in Article IV
section 4 of the Constitution. The present suit aligns with conditions laid down by the five justices as a
suit against the state of Montana and not against officials acting in their
individual capacity. Therefore, the suit is expressly prohibited by the
language of the 11th Amendment as interpreted by its conservative
In their brief, the corporate entities suing Montana stress their request for summary reversal. Montana's Motion to Dismiss for Lack of Jurisdiction under 11th Amendment sovereign immunity--if one is filed by Attorney General Steve Bullock before the Court takes up the case--may therefore include a request that the jurisdiction issue be the Supreme Court's first order of business if the Court agrees to consider this case. Such a conditional motion submitted before acceptance or denial of certiorari is the only way to avoid the risk of summary reversal of the Montana Supreme Court decision before the Supreme Court can decide the jurisdiction issue.
Such a motion would place a new
issue before the five conservative justices so that summary reversal would be
inappropriate. A discussion and vote on the sovereign immunity jurisdiction
issue would then have to precede discussion and vote on summary reversal on the
merits. A decision for briefing and a hearing on the jurisdiction issue would
likely also allow Montana to make its entire case.