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.
“Sorrell greenlights Super PACs in Vermont” read the headline on the July 26 VTDigger.
Why did Bill Sorrell and all the politicians he consulted, House Speaker Shap Smith, Senate Pro Tem John Campbell and Secretary of State Jim Condos, all give their stamp of approval to unlimited PAC spending in Vermont in violation not just of a Vermont law passed by the Legislature and signed by the governor but also in violation of provisions in the U.S. Constitution and our federal system of government?
Under our U.S. Constitution and in our federal system, power is shared between states and the federal government. But when it comes to elections, states are sovereign. For election of federal officials, state legislatures and Congress set the rules. Even the judging of elections is a job for each house of Congress. See the U.S. Constitution in Article 1, sections 4 and 5. But five justices on the US Supreme Court overstepped these bounds in the line of cases leading up to Citizens United, and continued to do so in the recent Montana election finance case.
Vermont has a strong case to defend its election law. And Vermont can implement a better strategy than Montana tried. Here is how: We already have a constitutional amendment that protects Vermont’s election laws. Under the 11th Amendment to the U.S. Constitution, states are immune from a private party suit that is either commenced or prosecuted in federal court. This powerful constitutional amendment could be asserted to defend Vermont’s election finance law from a private party suit.
According to an article on VTDigger on July 6, “Federal judge says state can use sovereign immunity defense in state workers’ overtime suit,” Attorney General Bill Sorrell asserted 11th Amendment sovereign immunity in a case involving state workers “who say they weren’t paid overtime when they should have been.” “William Sessions, the judge ruling on the case in the U.S. District Court for the District of Vermont, asked Assistant Attorney General Jonathan Rose: ‘Are you sure you want to go down this road?’ during a hearing in which he ultimately ruled that the state could use the argument in court. “’My response when the judge said that is that it’s our duty to protect the state’s sovereignty,’ Rose said in an interview.” Having asserted sovereign immunity in the state worker overtime pay case, the Attorney General cannot now say he could not assert sovereign immunity in an election financing case that hasn’t even yet been filed.
If the federal courts find that they do not have jurisdiction to hear a case because of sovereign immunity, then the case is dismissed and Vermont prevails over the private party bringing the suit.
Importantly for election financing cases, the five Supreme Court Justices who decided Citizens United are the strongest supporters of 11th amendment sovereign immunity. Only one of them would have to join with the four more liberal justices to deny jurisdiction in a case brought by a private party against Vermont election law. The five justices who decided Citizens United have also done the most to weaken or eliminate court-made exceptions to 11th Amendment sovereign immunity.
Under one such exception, called the “Young fiction,” a private party suit is brought against state officials rather than against the state itself to get around the 11th amendment. The Young fiction likely would have been overcome in the recently decided Montana election finance case because these five justices held in other cases that this exception does not apply when fundamental sovereign legitimacy of the state is at risk and the state is the real party in interest. Nothing is more fundamental to state sovereign legitimacy than election integrity.
For example, in a 1999 case affirming Maine’s 11th Amendment sovereign immunity, Justice Anthony Kennedy (who also wrote the decision in Citizens United) wrote, “When the Federal Government [including the U.S. Supreme Court] 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 processes.” Elections are the source of state government legitimacy.
Montana Attorney General Steve Bullock’s refusal to assert this constitutional defense to the suit by the private corporations against Montana was what made the summary reversal in the Montana case predictable. In fact, in its written decision, the five justices stated that they were summarily reversing because Bullock introduced no new argument “meaningfully distinguishing” the Montana case from Citizens United — and they certainly knew he had one in the 11th Amendment.
Steve Bullock’s refusal to assert this constitutional defense to the suit by the private corporations against Montana was what made the summary reversal in the Montana case predictable. In fact, in its written decision, the five justices stated that they were summarily reversing because Bullock introduced no new argument “meaningfully distinguishing” the Montana case from Citizens United — and they certainly knew he had one in the 11th Amendment.
Unlike other constitutional provisions, state sovereign immunity must be asserted by the state or it can be waived by the state. And now, following the sorry example set by Bullock, Bill Sorrell and his cohorts in the Legislature and Secretary of State’s office are refusing to even defend Vermont law. Even though the constitutional amendment that could protect Vermont election financing law is available, would likely be persuasive for at least one the five justices and is waiting to be asserted.
Each of the people named in the VTDigger article — Bill Sorrell, Shap Smith, John Campbell and Jim Condos — swears or affirms an oath to defend the U.S. Constitution. That constitution provides that the Legislature and Congress are the ones to determine the manner of elections (under Article 1 sections 4 and 5). The constitution says all states have sovereign immunity (under the 11th Amendment). So, without explanation, these political leaders are caving in without a fight. They are failing to assert and defend these constitutional provisions, our federal system under which states are sovereign and Vermont’s most precious right to protect its election law and election integrity from five viciously encroaching U.S. Supreme Court justices. The five justices who are determined to replace a rule of “by, and for the people” with rule of “by and for the 1%.” Five justices who are determined to replace our republican form of government with an oligarchy of the ultra super-rich.
According to the VTDigger article, “In January, Sorrell said he plans to ask lawmakers to differentiate between independent expenditure PACs and others. ‘I will be surprised if the Legislature doesn’t amend the statute, but that’s their right,’ he said.”
We don’t need to amend the Vermont statute in January. We need to enforce our Vermont election statute. We already have the constitutional provisions and the constitutional amendment we need to do that work. What good is considering any new constitutional amendment if our political leaders won’t respect the powerful amendment we already have?
Vermonters need an attorney general, a Legislature, a Secretary of State and a legislative leadership that will assert this winning strategy and defend Vermont election integrity, Vermont sovereign immunity, Vermont’s republican form of government, our federal system of government and our U.S. Constitution.
