CORPORATE CRIME REPORTER

Citizens United Montana and the Eleventh Amendment
26 Corporate Crime Reporter 25, June 9, 2012

In 2010, the Montana Supreme Court dealt a blow to the United States Supreme Court decision in Citizens United. The Montana Supreme Court, in Western Tradition Partnership v. Attorney General, challenged the validity of the Citizens Uniteddecision as applied to state elections, and upheld Montana’s law banning corporate spending on elections.

Western Tradition Partnership has since changed its name to American Tradition Partnership (ATP) and is now asking the Supreme Court to reverse the Montana Supreme Court decision. Montana’s Attorney General Steve Bullock, in response, is asking the Supreme Court to reject the company’s request for a hearing.

There is an argument that might sway the five conservative Supreme Court justices to Bullock’s cause. But it’s an argument that liberal Democrats tend to shy away from and that is, at the same time, near and dear to the hearts of conservative Republicans on and off the Supreme Court — the Eleventh Amendment.

Enter public interest attorneys Rob Hager and Carl Mayer. Mayer recently won an important victory in federal court in New York City overturning a section of the National Defense Appropriations Act that permitted indefinite detentions of citizens in the US.

Hager and Mayer have filed amicus briefs with the U.S. Supreme Court on behalf of their clients – The Eleventh Amendment Movement and Essential Information.

The briefs argue that the ATP’s attempt to overturn Montana’s law should be rejected because the U.S, Constitution’s 10th and 11th Amendments prohibit the Supreme Court from hearing this case against the state of Montana.

The Eleventh Amendment prohibits lawsuits by private parties against states in federal court.

Hager and Mayer are concerned that unless the Montana Attorney General asserts Montana’s sovereign immunity in it’s own filings, the Supreme Court may ignore the jurisdictional issue.

The earliest deadline for raising the jurisdictional issue is June 13 and Hager and Mayer have formally requested that the Attorney General of Montana file a motion asserting its states rights defense by that date.

“Since there are already four justices ready to support Montana because they disagree with Citizens United on its merits, the Eleventh Amendment argument need only be adopted by one of the five justices who strongly support states’ rights in order to win this case,” Mayer said. “We think, and Montana seems to agree, that there is a reasonable likelihood of success of Montana’s states’ rights defense. At the very least, their chances are greatly improved and there is absolutely no legal downside to raising this defense.”

Hager and Mayer say that when they suggested to the Montana Attorney General’s office that the Attorney General raise the jurisdictional issue before the Supreme Court, an Assistant Attorney General said that his office was reluctant to raise Eleventh Amendment issues because of “the potential implications in other contexts, if your theories were adopted.”

“This [statement] indicates that you do contemplate that these arguments are powerful enough to win this case,” Hager wrote in response. “On this point we would seem able to agree.”

Hager and Mayer have tried without success to obtain more information from the office of Attorney General about these “implications” and “other contexts” – to no avail.

When asked by Corporate Crime Reporter about this statement, Assistant Attorney General James P. Molloy said he was heading into a conference call and promised he would call back within two hours with an explanation as to what the office meant by “implications” of raising the Eleventh Amendment issue.

He never did call back to explain.

Instead, the Attorney General’s spokesperson John Doran said “we expect on June 18 the Supreme Court will decide the course of action on this case.”

“We have filed our brief. We don’t intend to make any commentary until after the Supreme Court decides how it will proceed.”

Mayer said “since this case is Montana’s and the country’s latest best chance for turning around the flood of money in politics caused by the Citizens United case, it is difficult to guess why Montana would refrain from making what they agree is the potential winning states rights argument out of fear about the effect victory of that argument might have on future unnamed contexts.”

 

 

 

 

FOR IMMEDIATE RELEASE:

 Breaking News:  Montana AG Refuses to Raise Potential Winning Argument in Citizens United Case

WASHINGTON, D.C. — June 11 — Montana Attorney General Steve Bullock is failing to “do all he can” — as he has publicly claimed — to win Montana’s U.S. Supreme Court battle against Citizens United.  He has refused to put forth a possible winning argument in the case and he won’t explain why.

 

According to a report published on Saturday by Russell Mokhiber in the well-established Washington, D.C. newsletter, Corporate Crime Reporter, AG Bullock’s office told a lawyer who filed an amicus brief in support of Montana that the attorney general is refusing to assert Montana’s sovereign immunity from suit, paradoxically, out of fear that the immunity argument could actually win the case.

 

The case is American Tradition Partnership (ATP) v. Bullock which challenges the validity of the controversial Citizens United case as it applies to state elections and is now awaiting the Court’s decision whether to reconsider its 2010 ruling that struck down federal prohibitions of corporate electioneering.

 

Attorneys Carl Mayer and Rob Hager have each submitted amicus briefs on behalf of two organizations, The Eleventh Amendment Movement (TEAM) and Essential Information, respectively, arguing that ATP’s attempt to overturn Montana’s law should be rejected because the U.S. Constitution’s 10^th and 11^th Amendments prohibit the Supreme Court from hearing this case against the state of Montana.  The 11^th Amendment expressly forbids a private party from suing a state in federal court.

 

Mokhiber’s article says that when Mayer recommended that Montana’s attorney general raise the jurisdictional issue before the Supreme Court rules on the case, an assistant attorney general replied (by e-mail) that his office was reluctant to raise 11^th Amendment issues because of “the potential implications in other contexts, if your theories were adopted.”

 

Mokhiber reports that Hager responded to the assistant attorney general that “this [statement] indicates that you do contemplate that these arguments are powerful enough to win this case. On this point we would seem able to agree.”  Hager received no reply to his letter.

 

Hager, Mayer, and Mokhiber all tried — to no avail — to obtain more information from the office of the attorney general about these “implications in other contexts” considered so important as to justify withholding the potential winning argument in the ATP v. Bullock case.

 

On Friday, June 8, when Mokhiber called the assistant attorney general directly about this statement, the assistant attorney general told Mokhiber that he was heading into a conference call and promised he would call back within two hours with an explanation as to what the office meant by “implications” from raising the 11^th Amendment.

 

Mokhiber says the assistant did not call back to explain the statement.

 

Instead, the attorney general’s Communications Officer, John Doran, indicated to Mokhiber that Attorney General Bullock does not intend to reveal his explanation in time for Montana to raise its sovereign immunity from suit prior to the Court’s decision.

 

Corporate Crime Reporter quotes Mayer: “Since this case is Montana’s and the country’s latest best chance for turning around the flood of money in politics caused by the Citizens United case, it is difficult to guess why Montana would refrain from making what they agree is the potential winning states’ rights argument out of fear about the effect victory of that argument might have on future unnamed contexts.”

 

Corporate Crime Reporter also quoted Mayer describing the possible winning vote count. “Since there are already four justices ready to support Montana because they disagree with Citizens United on its merits, the 11^th Amendment argument need only be adopted by one of the five justices who strongly support states’ rights in order to win this case,” he said.

 

In a follow up interview for this report, Mayer, who 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., said, “No one should have to guess Montana’s intentions here.  I would think any legal reporter would want to call Attorney General Steve Bullock and ask what ‘context’ is possibly more important than having a better chance to win this landmark case, and why, unless the attorney general changes course, he will let down Montana and the 80% of Americans who want Citizens United defeated.  His number is 406-444-2026.  Montana Governor Brian Schweitzer also should be questioned, as he, too, has made public statements in support of Montana’s election laws, but has been stone cold silent on the state’s sovereign immunity arguments that we have provided to him.  His number is 406-444-3111.”

 

Mayer added, “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.  Having failed to raise the issue in its Opposition Brief, Montana must now act quickly so as not to raise the implication that Montana is waiving its rights.”

 

Mr. Hager explained, “We have formally requested that the attorney general’s office immediately file a motion asserting Montana’s states’ rights defense.  We have provided a one page draft to make it easier to assert Montana’s immunity.  The draft, or their own version of it, can be filed in an hour.  The last chance to do so may be June 13, prior to the Court’s scheduled June 14 Conference when this case could be decided.”

 

Hager added, “We have a political environment where the federal government is so corrupted by money in politics that only 17% of Americans report that they think the federal government has the “consent of the governed.  It is extremely important that states assert their sovereign rights to protect their elections from succumbing to the same debilitating corruption.  In this environment, any politician who cannot explain a failure to take every available action to protect a state’s sovereignty from overthrow by corrupt money — most of which derives from outside the state — must be subject to close questioning.  It appears the Montana attorney general — who is now running for governor — intends to stonewall this questioning until it is too late to do anything about it.  We look forward to learning what excuse he will ultimately give the voters of Montana for this failure.”

 

Hager concluded, “We urge all those opposed to Citizens United to call Attorney General Bullock and Governor Schweitzer and insist Montana assert its sovereign immunity by filing a motion in time — for the benefit of Montana and of the whole country.”

 

The original Corporate Crime Reporter article may be read at www.CorporateCrimeReporter.com Direct Link to Article: http://corporatecrimereporter.com/montana06092012.htm

 

The two 11^th Amendment amicus briefs and a Summary may be viewed at TEAM’s website, LINK: http://www.11thamendment.org/2012/05/08/11th-amendment-supreme-court-briefs/

www.11thAmendment.org

 

Case Citations from this story:

 

1. Citizens United v. FEC, 130 S.Ct. 876 (2010)

 

2. Petition for a Writ of Certiorari: American Tradition Partnership, Inc., fka Western Tradition Partnership, Inc., et al., Petitioners v. Steve Bullock, Attorney General of Montana, et al. – U.S. Supreme Court Docket # 11-1179

 

3. Hedges v. Obama, S.D.N.Y., Case No. 12-CV-331 (KBF)(Slip Opinion, May 16, 2012)

 

Quote Source — Attorney General Steve Bullock, 1/20/12: “I owe it to a century of Montanans going forward to do all I can to defend this (case) irrespective of what might happen in my next campaign.” http://ivn.us/2012/01/20/montana-supreme-court-decision-opposes-citizens-united/

 

Quote Source — Governor Brian Schweitzer, 5/3/12: “…I strongly believe Montanans, and our country, need to stand together to address the problem of corporate money in our elections.” http://freespeechforpeople.org/node/383

 

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Contact: Adam Furgatch: 310-967-5854

adam@11thAmendment.org