A considered response to the Supreme Court decision
June, 2012
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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
