Is Montana’s Attorney General Ignoring the Best Challenge to Citizens United? If so, Why?

The Corporate Crime Reporter, the Washington, DC-based newsletter edited by Russell Mokhiber, reported a few days ago that Steve Bullock, the attorney general of Montana, is refusing to assert Montana’s sovereign immunity from suit in a case brought before the U.S. Supreme Court, paradoxically, out of fear that the immunity argument could actually win the case.

That’s consistent with what a spokesperson from the AG’s office told me when I called them a few weeks ago .

The case is American Tradition Partnership (ATP) v. Bullock, originally decided by the Montana Supreme Court, which refused to apply the controversial Citizens United decision to state-level elections.  The suit was brought to the federal Supreme Court by James Bopp, Jr., the same attorney who represented Citizens United.

By filing the case at the U.S. Supreme Court, the clever corporate rights attorney effectively invited the Court to stomp on Montana’s decision by expanding the scope of its Citizens United decision, thereby freezing and ultimately overturning a century-old state ban on corporate spending on state elections, and deterring any potential replication of Montana’s example.  And that’s exactly what most observers concede will happen: Montana will be overturned either through an immediate summary reversal or later in a full hearing.  But there is another procedural option:  If the Court refuses to even accept the case for hearing, then Montana’s laws would automatically stand and Citizens United would immediately be effectively reversed in that state.

The Court indeed has no business hearing the case, argue attorneys for non-partisan advocacy groups Essential Information and The Eleventh Amendment Movement (TEAM), in amicus briefs to the Court.  They argue that the 10th and 11th Amendments to the U.S. Constitution prohibit the Supreme Court from hearing the case, since the 11th Amendment expressly forbids a private party from suing a state in federal court.

According to the Corporate Crime Reporter, when attorney Carl Mayer recommended that Montana’s attorney general raise the jurisdictional issue before the Supreme Court moves to rule on the case, an assistant attorney general e-mailed back that his office was reluctant to raise 11th Amendment issues because of “the potential implications in other contexts, if your theories were adopted.”   The response not only fails to spell out what those “implications” would be, but it suggests that the assistant AG admits the argument may be powerful enough to prevail.

But without a full explanation, one must ask if that is really their objection?

Rewind the clock to a couple of weeks ago, when I got a call urging me to check out a little-noticed change in the Supreme Court’s handling of the caption – or title – of the case, a change that has important implications for the Court’s consideration of the case.

Although I’m not an attorney, I know enough of the history to recognize that small tweaks in Supreme Court procedure can have significant historical consequences, consequences that invariably benefit well-connected interests.

Many readers will no doubt recall Santa Clara v. Southern Pacific Railroad (1886).  During oral arguments, one justice suggested that the Court didn’t want to waste time belaboring whether or not corporations are “persons” under the law. The court’s clerk (a former corporate lawyer) seized upon the brief interjection and grotesquely transformed it (in the headnote to the case) into a rigid and powerful doctrine known as “corporate personhood.”  (See Thom Hartmann’s book Unequal Protection.) Thus a huge expansion of corporate rights was made without any real examination of whether it made sense.

Examples like that should make anyone already concerned about the impact of the Court’s Citizens United decision immediately curious (if not suspicious) to learn that the title of the Montana case has somehow changed in a way that could prevent certain constitutional arguments from affecting the outcome of the case.

I went over to the Supreme Court to try to sort out where and how the change in the title or caption of the case had come about.

Rather than walk you through all the nuances of the paperwork, let’s cut to the chase:  The title of the case changed after it was filed and no one at the Court that I talked to seemed able to explain why.

That the name was changed after the case was filed is obvious. The Supreme Court’s web site uses a different name for the case than the one originally used by Montana’s Supreme Court.

Such a change might not be consequential if it weren’t for the fact that the defendant’s name was changed from “Attorney General of the State of Montana” et al., to “Steve Bullock, Attorney General of Montana, et al.” — i.e. from the title of the OFFICE to the name of the INDIVIDUAL who currently holds that office.

On page 32 of its amicus brief, TEAM quotes Justice Kennedy’s opinion in an earlier case when he specifically stated that “suit…is barred by a state’s Eleventh Amendment immunity unless it falls within the exception this Court has recognized for certain suits … against state officers in their individual capacities.”

Hence the reason to be suspicious: Did Kennedy, who authored the Court’s 2/17 order staying the Montana Supreme Court’s decision, understand the implications of changing the title (i.e. that it could mean the difference between the Court’s accepting or rejecting the case, as TEAM’s amicus brief claims) since he wrote the pertaining Court decision?

I wondered.

Had I stumbled into some kind of “11th Amendment-Gate”?

I called the Public Information Office (PIO) of the Supreme Court to find out if I could get through to either William K Suter, the Clerk handling the case, or his staff attorney, Danny Bickell, since their names were on the 2/17 cover letter transmitting Justice Kennedy’s order staying the state court’s decision and granting Bopp’s application to review the case.

The Court’s spokespeople said they didn’t think it was necessary to put me through to Suter, that they would be happy to answer my questions.

Okay, I said. But it would be a lot easier if they first pulled the file, so that I could refer to specific documents and make my questions absolutely clear.

After waiting about 15 minutes, they got back on the line, when I began by pointing to the difference in the caption as described in ATP’s original application on 2/9 AND Montana’s 2/15 response in opposition to the corporate attorneys’ application for a stay on the state court’s decision, versus the caption used in Justice Kennedy’s 2/17 order.

I asked if they could explain the change that happened within these two days.

The first answer was that I would have to ask counsel for the parties themselves (i.e. either Bopp or the AG of MT) who, he explained, “can put down anything they want.”

But, I pointed out, it didn’t appear that either had requested the change. For example, the state of MT did not use Bullock’s name in their 2/15 response, but rather the title of the case as decided by the Supreme Court of Montana. And that was the same name Bopp had used earlier in his request for a stay.

The explanation they then gave was that, since Bullock himself filed the document, “they’re interchangeable,” (i.e. “Bullock” and “Attorney General”), adding “it’s all the same.”  Really? Is the person and the office one and the same, for legal purposes?

I asked if that was his opinion or the Court’s.

“No,” was the testy reply. “I have no opinion, and it’s not the Court’s. It’s up to the parties.”

So now we were going in circles. It reminded me of filling out paperwork at the DMV a few weeks earlier.

I persisted once more. The parties did not change the caption, the Court did. At which point he explained that “it’s the Court’s prerogative” to do so. Wait, what? Either the parties decide or the Court does, but it could not be both. They said the Court can list Bullock by name because he is the individual who responded in his capacity as attorney general.  Sure, Bullock is the lawyer for Montana, which is why he responded. But cases do not evolve into being suits against lawyers for a party. It was Citizens United v. FEC, not James Bopp v. FEC.

(Attorneys I asked later said that changing the caption, renaming the parties in a case,  without both a formal motion and an order from a court was pretty much unheard of.)

But enough of that run around. I wasn’t going to get any further there, so I decided to call the Montana Attorney General’s office that same afternoon to find out if they agreed or not with what I’d just heard, and to ask whether or not they saw any significance in the change in the caption or title of the case.

John Doran, Attorney General Bullock’s press officer, told me that because they hope to argue the case before the Supreme Court, it “makes no difference” to them whether or not the caption of the case was changed without their consent or request. Doran added that he understood that the 11th Amendment Foundation (sic) had pointed to the change in arguing that the Supreme Court should not hear the case. But, he suggested, they’d rather argue the case and prevail rather than have it tossed out before they get the chance to do so.

Doran was effectively confirming what the Corporate Crime Reporter later made clear — i.e. Bullock’s office is admitting that the attorneys for TEAM and Essential Information have raised a perfectly valid (and potentially effective) argument. A last-minute motion could still be filed to prevent the Court from interfering with Montana’s citizens’ right to clean elections.  But rather than act expeditiously, or explain to citizens of Montana why he will not not (i.e., what the “potential implications” would be of NOT making the motion), he is maintaining a stony silence.

What happens with Montana’s case will affect the entire country, not just Montana. Thus, the citizens of Montana and, indeed, all of us deserve to have the very best legal strategies put forth to win this case.  Anything less than that should make us ask, are we being held hostage to one person’s self-aggrandizing gambit or what?

Attorney General Bullock…why exactly are you not raising Montana’s constitutional sovereign rights in this case?

Attorney General Bullock’s number is 406-444-2026.

Let’s keep asking until we get an answer.