Editor’s note: This op-ed is by Assistant Attorney General Megan J. Shafritz, who is the Civil Division chief in the Vermont Attorney General’s Office.
Dear Mr. Leas:
I am writing in response to your email to Attorney General Sorrell regarding 11th Amendment issues. As AG Sorrell previously noted, we must disagree with your assertion that the state can avoid a constitutional challenge to its campaign finance laws by asserting immunity under the 11th Amendment. On the contrary, long-standing, well-established Supreme Court precedent allows federal civil rights actions, in federal court, against state officials who enforce state laws that are alleged to be unconstitutional. If the federal court finds the state law to be unconstitutional, it can enter a ruling saying so and require the state official (in effect, the state) to pay the plaintiffs’ attorneys’ fees. The 11th Amendment does not bar these lawsuits, which are brought under a federal law, 42 U.S.C. § 1983, and are known as “Ex Parte Young” actions (based on the name of an early Supreme Court case).
State officials in Vermont and every other state are regularly sued under section 1983. While sovereign immunity, which is protected by the 11th Amendment, is an important state defense and can limit these actions in certain important ways, it simply does not prevent lawsuits challenging state campaign finance laws in federal court. That is why the federal courts have repeatedly addressed the constitutionality of state campaign finance laws, including Vermont’s and those of many other states. That is also why Montana did not raise the 11th Amendment in the Bullock case.
It bears noting that these types of legal actions against state officials, alleging federal constitutional violations, are not just relevant to campaign finance litigation. These types of cases have been brought (and continue to be brought) to press many important civil rights claims. The ability of the federal courts to protect civil rights is an important part of our nation’s history and legal framework.
Moreover, even if your theory that the 11th Amendment provides a defense to federal lawsuits were correct – and it is not – it does not address the fact that the very same case could be filed in Vermont’s courts as well.
Moreover, even if your theory that the 11th Amendment provides a defense to federal lawsuits were correct – and it is not – it does not address the fact that the very same case could be filed in Vermont’s courts as well. Of course, the Vermont state courts, just like federal courts, are required to follow the decisions of the U.S. Supreme Court on matters of federal constitutional law. In other words, Vermont courts have to follow Citizens United for purposes of deciding cases brought under the First Amendment. Thus, when the U.S. Supreme Court decided that the Montana Supreme Court had not followed Citizens United, it reversed the decision of the Montana court in Bullock.
As I do not have access to your distribution list of members of the media and community, I would ask that you forward this on to them. Thank you.
