Could Citizens United Be Toast in Just Two Months?

ProudProgressive 2012/05/21 12:41:25

Most people I know agree that the Supreme Court's activist decision in Citizens United v. Federal Elections Commission has been a disaster, threatening to undermine the very concept of a free and fair elections. Even some Republicans, when the microphones are off, seem to feel that the Court went too far. The best way to fix the damage would be to amend the Constitution to make clear that corporations are not people and money is not speech. But with the gridlocked Congress we've got these days, the chances of that happening are virtually nonexistent. So the next best option is to work through the Courts to try to remedy the harm that Citizens United has done to our electoral system. And now there's a case that might just open that door.

Article excerpt follows:

Could Citizens United Be Toast in Just Two Months?
—By Gavin Aronsen
Mon May. 21, 2012
The 11th Amendment: The key to stymieing super-PACs?

Last December, the Montana Supreme Court defied Citizens United by upholding the state's century-old campaign finance laws. That decision could well be overturned when it comes before the Supreme Court, which stayed the Montana high court's decision in February. But never fear, reformers: The Eleventh Amendment Movement (TEAM), an obscure group based in Hawaii, claims that Citizens United could be effectively overturned within in the next two months.

Here's TEAM's argument, as laid out in an amicus brief filed with the Supreme Court: Because the plaintiff in the Montana case made a "technical error" by naming state Attorney General Steve Bullock in his official capacity, the 11th Amendment bars the Supreme Court from touching the Montana decision. The amendment affirms the principal of sovereign immunity, which prevents federal courts from interfering with lawsuits brought by individuals against state governments.

The group is represented by Carl Mayer, a New York lawyer who's won cases against the likes of Nike and has been working on behaf of journalist Chris Hedges to strike down the indefinite detention provision of the National Defense Authorization Act. Last Wednesday, a federal judge sided with Hedges. (Mayer also unsucessfully sued the New England Patriots and NFL for $185 million on behalf of New York Jets fans, claiming that Patriots coach Bill Belichick rigged games by secretly taping opponents' signals.)

At first glance, TEAM's theory is intriguing. If the Supreme Court were to decline to hear the Bullock case on 11th Amendment grounds, outside expenditure laws would "enter into a world of great confusion," says Tara Malloy of the Campaign Legal Center. "On the one hand, Citizens United would still be standing as the law of the land. On the other hand, we would have this state case which seems to indicate quite a lot of wiggle room for states to claim unique circumstances that would justify a corporate expenditure restriction." That's precisely the loophole TEAM hopes to open so that states may enforce or pass new campaign-finance laws that mitigate the impact of Citizens United. (Twenty-two states and Washington, D.C., are urging the Supreme Court not to touch the Montana Supreme Court decision.)

For the Montana case to be heard before the Supreme Court, four justices would have to give it the go-ahead; if six justices decide not to hear it, Montana's campaign-finance laws will be upheld. TEAM hopes to appeal to the states' rights sympathies of the Supreme Court's five-justice conservative majority, reasoning that they (plus at least one liberal justice) might reject the case on 11th Amendment grounds, thereby acknowledging popular opposition to Citizens United while avoiding the burden of explaining away their previous ruling.

Does this approach have a chance of success? Not likely, says 11th Amendment expert Andrew Coan, an assistant professor of law at the University of Wisconsin-Madison. While the concept of state sovereignty does prohibit federal courts from intervening in suits seeking monetary damages against a state or its officials, the Supreme Court's 1908 Ex parte Young decision (which TEAM argues is too narrow to apply) allows it to prevent states from enforcing laws that are unconstitutional. "It's necessary that a suit for injunctive relief be brought against the state attorney general in his official capacity, because otherwise any injunction that the court issued would run only to Attorney General Bullock personally, and if he left office his successor would be free to go ahead and enforce the law," Coan explains.

Got that? (As even the Congressional Research Service concedes, "Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent.")

Read More: http://www.motherjones.com/mojo/2012/05/11th-amend...

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  • lm1b2 2012/05/21 13:28:24
    As long as the Republicans are a majority they will never fix this problem!
  • R. 2012/05/21 12:57:33
    No , but it never hurts to dream a little.
    Are Mayer ( Carl ) and Allred ( Gloria ) having an affair ?

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