Editor’s note: This op-ed is by James Marc Leas, a patent lawyer from South Burlington who served as a staff physicist for the Union of Concerned Scientists in the aftermath of the accident at Three Mile Island.
A Brattleboro Reformer editorial, “Reversing Citizens United,” dated June 20, 2012, proposed three ways to reverse U.S. Supreme Court rulings that legalized vast quantities of money in elections. A decision from the U.S. Supreme Court is expected to be announced on Monday, June 25. According to the editorial:
• The U.S. Supreme Court could refuse “jurisdiction to make any decision about the case at all” in a case brought by corporate entities to overturn a Montana Supreme Court decision upholding its Corrupt Practices Act. Refusing jurisdiction would be a major victory for Montana, and it would effectively reverse Citizens United there. The victory in Montana would enable other states to adopt new legislation, or uphold their existing legislation, restricting money in elections.
• The U.S. Supreme Court could agree to hear the case and use it to reverse its earlier decision in Citizens United
• A campaign for a 28th Amendment to the U.S. Constitution seeks to overrule Citizens United
Sorrowfully, as a New York Times article pointed out, “There is little reason to think the five justices in the majority in Citizens United have changed their minds. The main question … will be how the court will reverse the Montana decision.” Nearly all experienced commentators on the Montana case agree that the strongest possibility is especially adverse for Montana: after agreeing to hear the case the U.S. Supreme Court will immediately summarily reverse the Montana Supreme Court decision. That would mean no briefs, no hearing, and no opportunity for a public outpouring in support of Montana.
The next strongest possibility is that the court will grant a plenary hearing. Citizens United was only decided in 2010 and an even harsher election financing decision followed in an Arizona case last June. With no changes in the five justices or in their views, few experienced commentators expect the court to use the Montana case to overturn Citizens United — despite the flood of money corrupting the 2012 elections.
As for the amendment route, fortunately, the U.S. Constitution already has an amendment that can be used to overturn Citizens United for state elections. The Supreme Court has applied the 11th Amendment to provide that “nonconsenting States may not be sued by private individuals [or corporations] in federal court.”
Nearly all experienced commentators on the Montana case agree that the strongest possibility is especially adverse for Montana: after agreeing to hear the case the U.S. Supreme Court will immediately summarily reverse the Montana Supreme Court decision.
Amicus briefs filed in the Montana case by two public interest organizations ask the Supreme Court to refuse to hear the case based on lack of jurisdiction under the 11th Amendment. The briefs describe cases that defined and advanced its applicability and placed limits on exceptions to its use. Remarkably, the five justices whose decision prevailed in Citizens United are the strongest advocates that the federal courts respect our federal system and the separation of powers and refuse jurisdiction when a private party sues a state in a matter that strikes state sovereign legitimacy.
For example, in affirming Maine’s 11th Amendment sovereign immunity, Justice Kennedy (who also wrote the decision in Citizens United) wrote, “When the Federal Government asserts authority over a State’s most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government.” Elections are the most fundamental of all state political process.
Among the great advantages of asserting the 11th Amendment over any newly written amendment is that the U.S. Supreme Court justices who joined Justice Kennedy’s ruling in Citizens United, have all written or joined in strong opinions using the 11th Amendment to toss out private party suits against state officials. Because the approach is so strongly favored by those five justices, asserting 11th Amendment sovereign immunity substantially increases a state’s probability of success in defending against a private suit to overturn its election financing law in federal court.
The strategy would be further enhanced if state attorneys general signed on to an amicus brief to defend their states’ right to be free of federal court interference in their elections. Especially compelling would the strategy be in state election cases as neither congress nor the executive branch support the position taken by the court in Citizens United and public opposition to private money flooding elections to corrupt politicians and purchase policies favorable to corporations is overwhelming.
Unfortunately, and inexplicably, Montana’s State Attorney General Steve Bullock did not assert the state’s sovereign immunity under the 11th Amendment despite encouragement from the lawyers who wrote the amicus briefs to do so. Summary reversal would end the case and preclude that possibility for Montana. However, if the Supreme Court does not summarily reverse, Montana will have a further chance to assert its 11th Amendment rights. Even with a summary reversal in the Montana case, other states, including Vermont, can invoke their 11th Amendment sovereign immunity to defend their own anti-corruption legislation from suit by corporations seeking to open the floodgates of private money in elections.
While the views of the five conservative justices bode well under the 11th Amendment, not so under a new amendment that seeks to overrule their handiwork in Citizens United. These five justices and their conservative colleagues reversed nearly two centuries of 1st Amendment case law to define money as speech and justify unlimited expenditures in elections in the line of cases leading to Citizens United.
The five conservative justices could equally misconstrue the virgin text of any new amendment seeking to overrule Citizens United. The results could be worse than useless as any new text passed by our heavily corrupted Congress would legitimize court jurisdiction over the manner of elections in states, while the court’s interpretation of the new flawed text could do further unforeseen damage.
This likelihood weighs heavily against the campaign for a new amendment sponsored by fund-raising organizations seeking to capitalize on opposition to Citizens United. With most Congress members owing their jobs to the present system in which they bask in the largesse of the one percent, successfully drafting and gaining wide agreement on the text of a new amendment, getting it adopted in both houses of Congress by two-thirds majorities without degrading changes, then getting it ratified by three-fourths of the states, and then having the five members of the Supreme Court fail to misconstrue its text is especially unlikely.
The 11th Amendment is already written, passed, ratified, and interpreted. It has strong support from the Supreme Court majority. Its use by states to assert their authority over their most fundamental political process–elections–brings the case out of any exception to 11th Amendment sovereign immunity. Its drafters, and those who drafted the Constitution a few years earlier, understood that keeping the Supreme Court out of questions like state election financing is essential to maintain rule of, by, and for the people. And they gave Congress authority with the Exceptions Clause in Article III Section 2 to enforce 11th Amendment sovereign immunity if the Supreme Court refuses. Thus, we already have the amendment we need for effectively reversing Citizens United on a state-by-state basis. Our task is to demand that our state legislators pass laws restricting private money in elections and demand that our state attorneys general assert 11th Amendment sovereign immunity when those laws are challenged by private individuals or corporations.
