Montana Politics

The 11th Ammendment – a Double-edged sword

With news that Montana has lost it’s challenge of Citizens United’s sweeping rules on campaign finance, there are no doubt those saying that Bullock let us down by not trying to apply the eleventh amendment to the case, with some even accusing Bullock of betraying us and being some kind of Manchurian Candidate. This is foolish, for two reasons. First, the 11th Amendment doesn’t apply in this case, something that was deciding 104 years ago. Secondly, if it did, we would live in a a terrifying world.

First, for those of you who shared my curiosity about the eleventh amendment as it applies to this case but were similarly disappointing by the lack of any such explanation in the papers, here’s a bit of background. The amendment in question does indeed prevent private entities from suing individual States in a federal court, because such states are quasi-sovereign unto themselves. If you want more explanation of the amendment, Loyola Law School in LA has a good explication here.

This all kind of came tumbling down in 1908 with the case Ex Parte Young. In a case uncannily similar to the one Bullock was endeavoring to fight, the stockholders of a railroad company sued the Attorney General of Minnesota (Edward Young) regarding what it considered unconstitutional restrictions on its business. What the court essentially concluded was that:

“The attempt of a State officer to enforce an unconstitutional statute is a proceeding without authority of, and does not affect, the State in its sovereign or governmental capacity, and is an illegal act, and the officer is stripped of his official character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to its officer immunity from responsibility to the supreme authority of the United States.”

In a modern context, the Supreme Court would have been compelled to overlook (and they did in fact choose to ignore the amicus curiae briefs bringing up) the 11th amendment because a precedent had already been set – Bullock, in trying to enforce an unconstitutional law, was no longer an agent of Montana, and thus was not defended by State sovereignty.

What about if we managed to overturn that precedent? Sure, it’s a long shot, but wouldn’t it be worth a try?

In a nutshell, no. A legal environment where the 11th amendment was enforced without regard to the constitutionality of the actions of State’s agents would be horrifying. It would essentially mean that no one could sue the state for violations of their civil rights. States could, in theory, restrict the speech of their citizens, their voting rights, or even their sexual activities, as long as their state courts agreed.

The Supreme Court has let us down again, unsurprisingly, but it would have been far worse in the long run if they had overturned their precedents that allow citizens to seek protection of their rights from the US constitution.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.


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  • PW, there are plenty of smart legal folks that completely disagree with you. See: Bullock blew the opportunity by not raising the 11th amendment argument. Others could not do it for him. Now the consequences of a successful 11th challenge would have been far reaching for liberal groups. Perhaps that’s why he didn’t want to do it. The explanations to date coming from Bullock are troubling.

    • Craig, please note that ‘those smart legal folk’ filed amicus briefs in support of the AG based on the tenth and eleventh amendments. Those briefs had no seeming effect on the ruling. And further, Bullock didn’t have the singular opportunity to raise the 11th amendment argument. The SCOTUS declined to hear arguments. So all that was left was the paper, which did include the 11th argument, just not from Bullock. And those smart folk you claim disagree with the Polish Wolf completely do not argue for an instant or even address the consequences of the success of an 11th Amendment argument. I don’t see their disagreement as complete as you do.

      There’s a whole bunch of folks who are trying to make hay against whatever political figure they think deserves blame. Many are trying to blame Baucus for voting for Alito and Roberts. Notice, some of those are the very ones angry at the Republicans for stonewalling Obama’s justice appointments, and dismissing the argument that Obama should be reelected to appoint better SCOTUS justices. The sad irony is overwhelming.

      Renquist certainly never chose the hour of his death. But Sandra Day O’Conner was very vocal that she had promised to retire under a Republican President. That’s precisely what she did, thus we have Alito. That man has openly disrespected the President and the very Senate which confirmed his privileged ass. If anyone needs more evidence that the SCOTUS has become a purely political entity dictating law by fiat, well there you go.

      I second what my brother writes: The Supreme Court – the Best Law Money can buy.

  • Your legal “analysis” is full of flaws. It would take far too much effort here to unravel what you are arguing, and quite frankly, it doesn’t matter any more. Water under the bridge. What I hear is nothing more than apologism for the tactics Montana’s Attorney General used in his losing efforts. But I expect that.

    Why not spend some words talking about the impact of unrestricted expenditures in Montana’s political and judicial elections instead? Because ultimately, Bullock may fall electorally due to his own failed defense of Montana’s Corrupt Practices Act. Is that what you want?

    And how do you propose Montanans regain electoral integrity in the face of SCOTUS’ rolling Montana’s elections — political and judicial — back to the 19th century copper king era?

    • I’m surprised you rose from your fainting couch long enough to instruct The Polish Wolf of how you would tear his argument to shreds, if only you didn’t need a lie down.

        • Exactly what did he get right, Craig? Your own example shows that the 11th Amendment argument was presented as part of legal filing; and neither of you, nor anyone else I can find, seems to be dealing with the consequences of a victory for WTP v. Montana AG based on that amendment. Perhaps you can clarify the “obfuscation”, but I’m not really seeing any.

    • No seriously JC, (or Craig), I’m curious as to how this situation is substantially different from Ex parte Young.

      More importantly, this is essentially a first amendment case. How would SCOTUS’s acceptance of an 11th amendment argument not shield any other State court from failing to defend the constitutional rights of its citizens? I’d love to hear how we could somehow protect Montana’s law here without giving States everywhere immunity from constitutional challenges.

      For example, take the case of West Virginia Board of Education vs Barnette. The Supreme court intervened to prevent a State from enforcing flag salutes in schools. If the 11th amendment worked like you seem to believe, the Supreme Court would have had no choice but to allow the State to do as it pleased, because the Jehovah’s Witness’s in question would not have had standing to sue a state in Federal Court.

      Citizens United, and the American Tradition Partnership, hinges on freedom of speech and equal protection, both constitutional issues. The SCOTUS has made it abundantly clear that they continue to exercise jurisdiction when a State is accused of violating the constitution. If you can give me one reason this case is different, I’d love to hear it.

      • The 11th Amendment argument in this case is strictly a jurisdictional one. Does the SCOTUS have jurisdiction in this particular instance? Just because the SCOTUS could allow an 11th Amendment jurisdictional challenge to ATP’s bring suit, doesn’t mean that all other constitutional challenges to state’s actions become moot. That’s a ridiculous stretch.

        And no, this isn’t mainly a first amendment case. It is a case about reigning in corruption. It only becomes a first amendment case if you believe that money = speech. Do you believe that?

        • Actually, it most certainly is a first amendment case. The problem is that – as far as it goes, it is pretty much a no brainer EXCEPT….

          The idea is that everyone should be able to practice their first amendment right of free speech. That is the no brainer. The exception is that we are talking about Corporations. Corporations aren’t people. To accept that ruling, you first have to accept that corporations are people and are therefore protected by the first amendment.

          The Supreme Court – the Best law money can buy.

        • “. Does the SCOTUS have jurisdiction in this particular instance?”

          You have to then make some delineation between this case and others. Why would the Supreme Court not have jurisdiction over this case, and yet retain jurisdiction over Young, or Lawrence v. Texas, or West Virginia v. Barnette? There is little room for making such a delineation. And moreover, as has been mentioned, SCOTUS was still welcome to deny that it had jurisdiction. But it did not.

          “It only becomes a first amendment case if you believe that money = speech. Do you believe that?”

          No, but the Court does. They are not willing to reconsider that position; if they were, the case could have gone ahead. Bullock desperately wanted them to reconsider that position. I think we can agree that such a reconsideration would be ideal; even if he had been successful in his 11th amendment argument, he would have lost any opportunity for it.

          Indeed, even if successful, the only thing Bullock could have accomplished with your 11th amendment argument would have been to temporarily kept our own anti-corruption statute intact, maybe long enough to win election, but nationally the effect would have been insignificant. And you would have criticized him for that, too.

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