Citizen United vs. the 11th Amendment: The Struggle Continues

By US Daily Review Staff.

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, Attorney General Bullock’s office told a lawyer who filed an amicus “friend-of-the-court” brief in support of Montana that the attorney general is refusing to assert Montana’s 11th Amendment constitutional sovereign immunity from suit because it is feared that the immunity argument could actually win the case.

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

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 10th and 11th Amendments prohibit the Supreme Court from hearing this case against the state of Montana. The 11th 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 11th 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.” 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, Mokhiber was promised a call back within two hours with an explanation as to what the office meant by “implications” from raising the 11th Amendment. Mokhiber says the assistant never called 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.

In a follow up interview, 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 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. 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.”

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 by filing a new motion that we have provided to them, so as not to raise the implication that Montana is waiving its rights.”

All opinions expressed on USDR are those of the author and not necessarily those of US Daily Review.

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