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Monday, June 11, 2012

Citizens United and "the Montana model"

A considered response to the Supreme Court decision


June, 2012 


   _________________________________________________________________



Super PACs have arrived this election season and whatever your political point of view 

you will be targeted. Hundreds of millions of dollars, mostly to be spent via negative 

advertising, will be parlayed by Super PACs.  These new entities, as a result of the 

Supreme Court’s Citizen United decision, legally raise and spend unlimited sums of 

money to advocate for or against candidates. The 2010  Citizens United   ruling  gave 

corporations and unions the right, under the doctrine that money is speech protected 

by the First Amendment, to make unlimited independent expenditures in campaigns for 

elected office. Super PACS are pushing expenditures into the unaccountable mega-

millions. 



       The consequences have begun to roll out in 2012. The US Supreme Court's 

historic decision not only struck down a federal statute, 2 U.S.C. § 441b, and decades 

of ‘settled’ campaign finance law –  overturning two of its own key campaign-finance 

decisions -- it has also jeopardized 26 states' laws prohibiting or limiting independent 

corporate expenditures.  This decision establishes protection for a debilitating 

entrenchment of corruption at all levels of politics.   Citizens United prevents effective 

campaign finance reform and hence fair and open elections. It ensures the influence of 

money-in-politics, the escalating power of lobbyists, and and a profound shift in 

governance against the public's interests. 



       According to many observers, whether conservative, liberal or independent, the 

consequences of this Supreme Court decision and other similar decisions, 

undermines the First Amendment and our system of constitutional protections. Instead 

of “more free speech”, the ruling gives corporations/corporate entities and moneyed 

interests unprecedented power over political speech. 



       One has only to look at the 2012 primary season within the Republican Party to 

witness the power of money to influence votes, mount negative attack ad campaigns, 

buy media time and resultant “eyeballs” and “mind share” (in advertising-speak) and 

generally monopolize election outcomes.  In the upcoming 2012 general elections 

 Democrats and Republicans alike will display an unprecedented level of negative 

 electioneering, hundreds of millions of dollars spent on orchestrated assaults by a 

 handful of individuals, taking attack ads to a new unprecedented high and public trust 

 in politics to a new low. 



       As the  Citizens United ruling opens a floodgate of money, the public's approval 

of government  as expressed in polls diminishes to historic levels of mistrust, giving rise 

to anger and “take back your country” movements, left and right. While the Supreme 

Court argues among itself, issuing 5 to 4 decisions, public belief in government “of, by 

and for the people” wavers.  An out-of-balance system grows significantly more quid 

pro quo and less democratic as a result of Citizens United. 



        What are the possible remedies, solutions, legal approaches to turn the Court 

 away from the untoward direction it has unfortunately chosen to go with  Citizens 

 United?  The future under the sway of Citizens United is not credibility for the Court’s 

 authority but a predictable result – deep citizen discontent after vast, unaccounted-for 

 election spending, a campaign that will rival the worst in American political history. This 

 is inevitable, unless we can turn the Court toward a ruling that would strike a balance 

 for  the greater good. 



        Some activists justify their campaigns against money in politics as useful for 

 “public education” although it is difficult to see  how their strategies could lead to 

 success.  These campaigns exemplify Stanford Professor Richard Thompson Ford's 

 observation that  many of today's political activists don't really expect to get what they're demanding 

 anyway: increasingly, they define their objectives in terms of "community building" and 

 “consciousness raising" -- a sad admission of the futility of their demands.   Rights 

 Gone Wrong: How Law Corrupts the Struggle for Equality (2011) p. 240. 



  Polls show the public already understands money’s corruption of US politics.  Only 

 17% of voters now think government has the consent of the governed while  95% 

 already know what money in politics buys.  What is lacking is not public understanding 

 of the problem but an effective strategy to deal with it.   



        To directly address the Citizens United ruling, there are three reform options 

 supported by the Constitution. Of these, the legal strategy labeled here the “Montana 

 Model”, presented as Option Three, is the most effective near-term approach to 

 reversing Citizens United’s damaging effect on democratic elections. 


                                              Ω



Option One:
The Constitution, Article III, Sec 2, (“the Exceptions Clause”) grants 

Congress the authority to pass a law stripping the Supreme Court of jurisdiction over 

cases like Citizens United by ordinary majority vote. By stripping the Court's jurisdiction 

Congress could restore its own powers to regulate campaign finance. Yet it stretches 

credulity to envisage Congress employing its Exceptions Clause power, for this 

purpose,  as this would require a robust congressional strategy in response to the 

Citizens United decision at the same time those interests unleashed by the decision 

are injecting unprecedented, unlimited amounts of money into elections. Given 

business-as-usual, what members of Congress can be expected to put their re-election 

fund-raising at risk by effectively legislating for electoral integrity? Even those 

politicians who raise money and votes by supporting reforms are careful to support 

reforms that are either ineffectual or impossible., or both.  The recent Senate vote on a 

DISCLOSE bill to force disclosure of secret money in politics showed that this is a 

strictly partisan issue with Republicans voting in lockstep against any reform, however 

ineffective the Democrats' proposal may be to actually solve the problem.   This 

symbolizes the role of the two parties in serving the fraction of 1% who control most of 

the money in politics.  One party clearly serves their interests, and so does the other 

while pretending not to



       First, within the prevailing pay-to-play reality, an unpopular Congress has neither 

motivation nor bi-partisan votes to engage a more popular Supreme Court in a contest 

over separation of powers by stripping the Court via Article III, Sec. 2 of jurisdiction to 

hold Congress' campaign finance laws unconstitutional    Second, Congress, with the 

enabling support of many professional activists, has a history of offering the public 

piecemeal reforms that do not even attempt to comprehensively address the problem 

of money in politics.  DISCLOSE is just one example.  But experience shows that in a 

systematically corrupt political system piecemeal reforms actually do more harm than 

good.  



Option Two:
A Constitutional amendment is another proposed approach. An 

amendment enacting new constitutional text concerning campaign finance, unlike the 

simple majority vote required for Option One, would first require approval by a ⅔ 

supermajority vote of each house of Congress. One asks again, “who believes 

Congress, as it currently stands, will step up with a ⅔ majority to effectively turn down 

unlimited campaign money as allowed by Citizens United?” Many of the proposed 

amendment texts on offer could actually cause more harm than good due to 

unintended consequences from unpredictable Supreme Court interpretation.  As 

Steven Colbert's lawyer has said there are serious flaws in 



       talk of a constitutional amendment. Not only would such an amendment be 

       hard to draft, putting the interpretation right back into the hands of the 

       Courts, but I think talk of an amendment encourages avoidance of the 

       hard work that should be done to solve these problems. For there are 

       legislative solutions … 



And if a more effective text were to somehow pass Congress, notwithstanding the 

considerations that make Option One implausible, how many more years will it 

reasonably take for the required 38 states to ratify the text proposed by Congress? 

Given the political realities and facts on the ground, the amendment approach is an 

even more problematic strategy than Option One.  



       Look to the Equal Rights Amendment as a salient example of the path a 

congressional amendment proposal and state ratification campaign would have to 

take. First introduced in Congress in 1923, four years after the 19th amendment, the 

ERA was an uncomplicated text that clearly expressed the principle of equality 

between the sexes.  It nevertheless had a convoluted fifty year history until its approval 

by Congress in the early '70's, and ultimate failure of ratification in the early 80's. In the 

midst of the ratification campaign, a Supreme Court decision, Buckley v. Valeo (1976) 

unleashed a wave of money that fueled opposition to the ERA, blocking three out of 

the four remaining state ratifications required to reach the requisite thirty eight states  

Yet, twenty one states adopted versions of the ERA in their state constitutions, which 

leads us to consider what may be the most effective strategy for dealing with Citizen’s 

United.  In recognition of the forward-looking citizens and Supreme Court of Montana, 

this is labeled the “Montana Model.” 



                                               Ω



Option Three:
The Montana Model, a state-based response to  Citizens United. 

States on their own without requiring consent from Congress possess constitutional 

authority to regulate both their state and federal elections. The Tenth Amendment of 

the Constitution secures the states' exclusive power over state elections. Article I, Sec  

4 provides states the primary responsibility for federal elections (including regulation of 

campaign contributions, reporting, disclosure, and so on) subject to the oversight of 

Congress. Congress may choose to exercise that power, for example, via the Federal 

Election Commission.  A state’s right to regulate or entirely outlaw private interest 

money in politics is subject only to Congress' objection.  It is politically unlikely that 

Congress would overtly oppose state law designed to control money in elections, 

where Congress itself  provides none, because voters are unlikely to tolerate a 

congressional effort to undermine election integrity.  The Supreme Court is the more 

likely source of interference in the states’ right to oversee election campaigns. 



        The “Montana Model” advantages from this legal framework and Montana's 

defense of its laws against corporate expenditures in elections.  Stepping away from 

the Citizens United decision, the Montana Supreme Court rejected the one-size-fits-all 

approach of the US Supreme Court that every state must fall within its Court-

mandated, unlimited corporate spending regime. In their appeal of the Montana 

decision upholding Montana's law, two Montana corporations have asked the US 

Supreme Court to apply Citizens United to overturn Montana's election finance anti-

corruption law, dating back to the era of “Copper Kings”, which outlaws independent 

corporate electioneering expenditures. The rejection or dismissal of the corporate-

initiated suit against Montana will have far-reaching consequences



        It is possible that the deciding vote in the Montana case could be cast to refuse 

to invalidate state election laws in violation of the 11th Amendment of the Constitution  

If the strategy proposed were  taken up by enough concerned citizens, w the upcoming 

decision on the Montana case could convert a predictable 5 to 4 vote for  Citizens 

United to a 4 to 5 vote for Montana.   Montana can win if just one justice in the  Citizens 

United majority adheres to previously expressed views on 11th Amendment rights

Without public attention on this case and the justice's hypocrisy if they fail to apply the 

11th  Amendment, Montana will not likely win.


The 11th  Amendment bar to the Supreme Court hearing a suit against a state, or 

officials who act for the state, without its consent should apply in this case, where the 

plaintiff is neither “sovereign” nor authorized by Congress. Congress may  specifically 

authorize  lifting the 11th Amendment bar to private suits against a state in order to 

enforce the Civil War amendments' prohibition of racial and other discrimination.  The 

executive branch can sue a state on behalf of the sovereign United States in order to 

enforce any provision of the Constitution or federal law.  But Supreme Court precedent 

holds that private parties cannot sue a state on matters that implicate core aspects of 

state sovereignty or that could result in a burden on the state treasury. (E.g. Idaho v  

Coeur d'Alene Tribe of Idaho.)



        The Supreme Court has developed convoluted and constitutionally unsupported 

exceptions to 11th   Amendment immunity that it may or may not decide to apply in this 

case to grant itself the power – which the Constitution withheld -- to hear this case 

against Montana. If it does so, the Supreme Court will be changing the constitutional 

text as it did when it read its preferred unrestrained election finance law into the First 

Amendment. The only express constitutional basis for interfering with state elections 

are the amendments prohibiting discrimination against any adult citizen on the basis of 

race (15  ), gender (19  ), payment of a tax (24  ), or age (26  ). 



        The lawsuit appealing the decision of Montana's Supreme Court could, if 

politically supported with ‘friendly briefs’ from other states, succeed in defending the 

rights of states to enforce their election, campaign finance and anti-corruption laws 

going forward. Twenty-two sates did join an amicus brief.  But that brief attempted 

solely to re-argue Citizens United and did not defend the sates' immunity from private 

suit over their election integrity laws.  



        Two public interest organization, The Eleventh Amendment Movement and 

Essential Information did file 11th  Amendment briefs.  This Montana appeal would be 

the opening initiative in a strategy that could work to preserve the rights of all states in 

the election campaign and lobbying arena. Montana still has an opportunity to adopt 

the arguments in these briefs prior to the expected June 14 Supreme Court conference 

where the case will be decided. 



        This states' rights approach is the best model – the “Montana Model” – to 

address the flight away from fair elections, campaign integrity and governance that is 

widely perceived as not “of, by and for the people.”  Victory of the Montana Model is 

only likely if  the two factions on the Court agree to allow state-based approaches to 

election finance. 



        The Montana law currently before the Supreme Court can be employed as a 

‘template’, a ‘best practices’ model to be considered alongside other states' similar 

election laws and regulations that prevent unlimited political spending. Together the 

extensive body of state election laws establishes a model  legal framework for 

acceptable campaign finance limits. The effort to defend the Montana Model would 

attract support from across the political spectrum, joining together disparate advocates  

This effort could mobilize widespread support from those usually more conservative 

voters who support states rights, joined up with those often more liberal voters more 

concerned about reducing the influence of money-in-politics. 



        This potential political alliance operates from the level of the Supreme Court, 

where there are two distinct camps on the separate issues of states' rights and money-

in-politics, and extends all the way to state legislative bodies and voters. Together the 

two camps, led by Attorneys General from both camps, could step up to support the 

rights of states to oversee elections free of a federal judicial mandate, such as the 

Citizens United decision, ordering one-size-fits-all elections for everyone. 



Montana presents a challenge to other states to similarly stand up to the Supreme 

Court. 



       Most all states, given the opportunity, will defend the language, and intent, of the 

original Constitution to leave most election matters closest to the people, where 

citizens vote, in their  communities, towns, counties, and states without interference 

from a Supreme Court unsupported by either of the elected branches of the federal 

government. 



       The viability of this strategy will be initially decided by the Supreme Court in 

Western Tradition Partnership v. Attorney General, 363 MT 220 (2011), stayed pending 

writ of certification sub mom. American Tradition Partnership, Inc. v. Bullock , 565 U.S  

__ (February 17, 2012 ). Whether the Supreme Court takes on the appeal (i.e., “grants 

writ of certiorari”), will be determined sometime after June 14th , when the Court's 

conference is scheduled on the case .  There is potential for an intense spotlight to be 

thrown on the Supreme Court and its decision. The Court takes a summer vacation just 

after the case is scheduled to be submitted to it so Its decision whether to hear the 

case may not come until late June or even as late as the highpoint of the presidential 

election campaign in October. While the case remains under review, the Court’s 

Citizens United decision prevents enforcement of Montana's and implicitly other states' 

similar laws.   



       If the Court declines to take jurisdiction of the case, then Montana's law and 

similar laws of other states may be enforced.  This would be an initial victory in the 

battle to establish the states' independence from Supreme Court-mandates that have 

stripped away both the states' authority and any meaningful Federal Election 

Commission oversight of elections. 



       If the US Supreme Court grants the corporations' request to take the Montana 

case on appeal, and then reverses the Montana Supreme Court's decision, the Court 

will be enforcing  Citizens United in Montana and imposing its dictate so as to invalidate 

all similar state election laws.  The states' ability to protect the integrity of their 

elections from unlimited corporate spending would cease.   Reversal of the Montana 

Supreme Court’s decision would shut down what may be the most politically promising 

approach available in the near future to provide for fair, more open and democratic 

elections. 



        Yet, one Supreme Court judge who voted with the majority in  Citizens United 

could choose to recognize the value of a balance between federal and state power in 

the conduct of elections.  One justice's support for applying conservative states' rights 

principles contained in the 11th   Amendment to reject jurisdiction of the Montana case 

would open up a strategy that is the best, most practical way to render  Citizens United 

ineffective and strike a balance between state and federal power. 



        A balance can be struck that is eminently constitutional  by focus on the Court's 

potential one, swing vote and making a coordinated effort in friendly briefs, particularly 

by AG’s concerned about the protection of their state's legal powers, accompanied by 

wide-ranging citizen support of fair and democratic elections. Since all elections are 

conducted at the state level, this “election powers in balance ruling” would serve as a 

framework for foreclosing the Supreme Court from ‘trumping’ long recognized states’ 

rights. The Supreme Court can rise to a new level of citizen respect as it moves to 

balance a tendentious decision in Citizens United with public support from multiple 

points on the political spectrum. 



        Montana’s defense of its election laws before the Supreme Court should be 

looked at carefully by all parties – by citizens, elected officials, good government 

activists, scholars and the news media, by conservatives who believe in state rights 

and the import of the founder’s intent, and by liberals who hope for a more responsive 

government.


        The effect of even one judge applying the 11th  Amendment could be more than 

salutary; it could be profoundly reassuring, reminding all of what is possible in avoiding 

the deep, negative consequences of drawing hard lines where elections, campaigns 

and policy decisions are waged with increasingly negative consequences. Open and 

fair elections are the foundation of a working democracy. Election laws enabling 

participation by all in debate is vital to a healthy democracy. 



        If the State of Montana’s attempts to provide a regulatory framework for fair, 

open elections is to stand, and become one state’s model of what is possible state-by-

state, Montana must assert is sovereign immunity from this suit under the 11th 

Amendment and adopt the arguments made in the 11th  Amendment briefs at this 

 website expenditure ban -- Mont. Code Ann. 13-35-227, laws that the  Citizens United decision 

will prevent from being enforced, need to similarly stand on their 10th  and 11th

Amendment rights to enforce their own laws; states that do not have such laws should 

follow Montana's example and enact such laws.  The success of efforts to help 

Montana obtain a favorable Supreme Court decision allowing the law of Montana to 

stand would have an immediate impact at all levels of politics. In as many as half of the 

states existing election laws similar to Montana's will be preserved.  With such 

success, additional states could be encouraged to follow Montana's example and 

adopt or improve their own election and campaign finance laws. With the federal 

government – but not the states - remaining hobbled by  Citizens United, it would be 

clearly up to the states to fight political corruption. Much is possible if the Montana 

model goes forward. One state at a time, it would be possible to reach the point where 

a majority in Congress is elected from clean election states. 



Plan B, “What if?” 



If the Supreme Court fails to observe the 11th  Amendment  limits on its power in dealing 

with the Montana appeal, and subsequently rules against the state of Montana, the 

battle for defending states rights’ to prevent corruption and enforce spending limits in 

their elections does not end. Congress can be asked to enact legislation under both 

11th  Amendment and its Article III, Sec 2, “Exceptions Clause” power, such as the 

following: 



  "Eleventh Amendment Enforcement Act -- 



  a) Except as expressly provided by Act of Congress and the Eleventh Amendment 

  of the United States Constitution, no judge of the Supreme Court or other court of 

  the United States shall, without a state's consent, adjudicate any suit in law or 

  equity, nor rely on any prior judicial decision, involving invalidation or other review 

  of any State or local election finance law, regulation, policy or decision prohibiting 

  or otherwise regulating either a financial contribution to a candidate for, or an 

  expenditure affecting, any election conducted within its state or locality." 



  b) 2 U.S.C. §453(a) is amended by adding to the first sentence "insofar as state 

  regulations are less restrictive than those provided in this Act." 



        With such legislation, Congress would be in the position of resolving a conflict 

between the rights of states and the Supreme Court rather than initiating a conflict 

between itself and the Court, as in Option One above. Because Congress would act in 

defense of states’ rights, it should be able attract some bipartisan conservative support 

along with the overwhelming support of the majority of voters who want cleaner 

elections. If this provision were enacted, a phased state-by-state campaign can 

proceed.   There is no need to delay lobbying for this provision because it would likely 

also influence the Court toward recognizing states' rights as preferable to being 

chastised by Congress for failing to do so.


        An appropriate precedent for success  of such a phased strategy can be found in 

the similar phases of the women’s right-to-vote movement in the US

 

        The Supreme Court had denied women's right to vote under the Constitution . Yet 

 women won the right to vote at the state level starting with Wyoming    in the 19th 

century. By the end of the century women were winning the vote in one state at a time 

until they achieved voting equally with men in a number of states that represented a 

clear majority of the electoral vote for President.  Women could then “speak truth to 

power,” by their influence on federal officials on the question of their voting rights.  The 

women's right-to-vote movement employed a strategy of single-issue voting and state-

by-state enfranchisement to force the President (Wilson) and Congress after a series 

of close votes to approve and propose to the states the 19th   amendment. Women 

voters and their allies then caused ¾ of the states to ratify. The amendment imposed 

the enfranchisement of women on the remaining recalcitrant states.  Today's 

enfranchisement struggle to get money out of politics does not require a constitutional 

amendment because the problem is not recalcitrant states, but rather a recalcitrant 

Supreme Court.  Only legislation is required to strip the Court of its powers over either 

federal or state law.  



        Yesterday’s Wyoming can be today’s Montana. The success of the women’s 

organizing model was the largest enfranchisement campaign in American history. The 

women’s right-to-vote movement serves as a model for re-enfranchising citizens today  

Citizens who have been increasingly disenfranchised by Supreme Court decisions 

establishing the power and undemocratic impact of money in politics can apply the 

women’s right-to-vote model of state-by-state reform. In achieving full citizenship, the 

women’s right to vote began with the state of Wyoming. To get money out of politics it 

can be the “Montana Model” that leads the way toward more inclusive, fairer elections. 



                                                  Ω  Ω  Ω



Citizens United and the 'Montana Model' 

References - 
http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission

 

In December 2011, the Montana Supreme Court in Western Tradition Partnership, Inc  

v. Attorney General of Montana upheld that state's law limiting corporate contributions  

Examining the history of corporate interference in Montana government that led to the 

Corrupt Practices Law, the majority decided that the state still had a compelling reason 

to maintain the restrictions. It ruled that these restrictions on speech were narrowly 

tailored and withstood strict scrutiny and thus did not contradict  Citizens United. Judge 

James C. Nelson, dissenting, agreed with the majority that  Citizens United was 

incorrectly decided but argued that Citizens United nonetheless  precluded the Court's 

decision



In February 2012, the Supreme Court blocked the Montana Supreme Court's decision 

pending submission of cert petitions. Justices Ginsburg and Breyer released a short 

statement, urging the Court to revisit Citizens United and "to consider whether, in light 

of the huge sums of money currently deployed to buy candidate's allegiance,  Citizens 

United should continue to hold sway". 



On May 18, 2012, Montana and its amicus supporters submitted briefs to the Supreme 

Court, including  two 11th  Amendment briefs  .  On May 28th the corporate petitioners 

filed a Reply Brief.   The case was then ready for submission to the conference, which 

could be held as early as June 14, when the Court will deliberate whether to grant the 

writ of certiorari (agreement to consider the case) and also take up the petitioners' 

request to summarily dismiss the case without any further briefing or argument as 

would normally occur



Unless it denies cert as Montana  requests, the Court would either schedule plenary 

argument of the appeal in the October 2012 term, or summarily reverses as the 

corporations request and most commentators expect. 



 Reversing Citizens United /   OEN

 Stare Decisis   after   Citizens United  : When Should Courts Overturn Precedent  / Cato 

Institute 

 The Hard Truth of  Citizens United  / Salon 

 The Post  Citizens United Fantasy-land  (Problems of disclosure laws) Georgetown Law 

-

Cornell Journal of Law & Public Policy 

Citizen Involvement: 



√ Contact your members of Congress to  support Montana’s election laws by 

requesting they 

√ Support the “Eleventh Amendment Enforcement Act” 



Never doubt that a small group of thoughtful, committed citizens can change the world.  

Indeed, it is the only thing that ever has.   ~ Margaret Mead 

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