Attorneys who filed amicus briefs to the US Supreme Court in the Montana reprise of Citizens United are urgently calling on Montana Attorney General Steve Bullock to immediately submit a motion asserting sovereign immunity to forestall summary reversal. So far Bullock has refused to do so. The case can be won or lost based on this simple move.

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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 11^th 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 10^th and 11^th 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.

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 corporations.

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 interest:

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 Court

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 interests."

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 11^th Amendment as interpreted by its conservative justices.

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.

Such a motion could result in a win for Montana. Only one of the five conservative justices need join with the four justices who oppose Citizens United in order to dismiss the case for lack of jurisdiction based on sovereign immunity and to allow the Montana Supreme Court decision to stand.

Alternatively, if jurisdiction is found, the avoidance of summary reversal and the briefing and hearing so afforded may at least provide Montana and its amicus supporters the chance they need to present their case on the merits in the full daylight of public attention.   They may persuade at least one more justice through briefing and oral argument that facts about elections since 2010 and facts about Montana warrant a different decision than the one reached in Citizens United.

James Marc Leas is a patent attorney in Vermont

Authors Website: http://www.vermontpatentlawyer.com

Authors Bio:

James Marc Leas is a member of the National Lawyers Guild