On Monday, Mother Jones published an article headlined “Could Citizens United Be Toast in Just Two Months?” I’m going to just go ahead and answer that question: No. But the article raises some issues regarding Citizens United, the workings of the federal courts, and the practical effects of federal litigation, all of which warrant a bit of discussion.
The driving force behind the article is a little group called TEAM (The Eleventh Amendment Movement), which has sprung up in connection with recent Montana state-court litigation regarding Montana state election law. Back in December 2011, the Montana Supreme Court held that, despite the U.S. Supreme Court’s Citizens United decision, a Montana could still constitutionally enforce a law restricting the use of corporate funds to influence Montana elections. The Montana case was Western Tradition Partnership, Inc. v. Attorney General of the State of Montana, and its effect was quickly stayed by the U.S. Supreme Court (under a different name for some reason: American Tradition Partnership, Inc. v. Bullock). The Court’s order staying the Montana Court’s decision got some press because Justice Ginsburg, joined by Justice Breyer, issued a “statement . . . respecting the grant of the application for the stay,” essentially saying that the Supreme Court should grant cert and reconsider or overrule Citizens United. The Court has yet to decide whether to grant cert, so we’ll wait and see where that goes.
But the folks at TEAM have a different idea. Apparently, they have been given permission to file an amicus brief in connection with the cert petition in Bullock, and they will be arguing that the Court should deny cert for lack of jurisdiction based on the 11th Amendment. As of yet, I don’t believe the proposed amicus brief or the opposition to the petition for cert have been filed. I’ll keep checking the SCOTUSBlog docket for Bullock here. So can you!
My first thought upon reading this plan in the Mother Jones article was… What!? TEAM’s argument/plan, as best I can figure out, is as follows: (1) The 11th Amendment will bar the Supreme Court from reviewing the Montana decision in Bullock. (2) Accordingly, the Montana decision rejecting Citizens United will be left standing. (3) The survival of Montana’s corporation-restricting election law will “effectively reverse” Citizens United. (4) Other states will then have the confidence to pass their own similar laws restricting corporate political expenditures. (5) In the wake of the Bullock dismissal, the Supreme Court will be wary of striking down those laws as well. (6) ??? (7) We achieve justice and fairness in elections.
Where am I getting this plan? Well, some of it is described by Mother Jones. But it can also be found in this “Action Plan” from TEAM, which describes the 8 “steps” in the 11th Amendment plan to negate Citizens United. (Note: TEAM’s 8 steps are not even close to my 7 steps; I took some liberties.) And then there’s also this video and this press release, both of which explain the plan.
Mother Jones calls TEAM’s theory “intriguing” and quotes a legal scholar who seems to give at least some credence to maybe a little part of TEAM’s strategy:
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.”
In the end, even Mother Jones admits that this plan has little chance of success. However, the article’s description of the plan’s faults is extremely limited. Basically, it quotes “11th Amendment expert Andrew Coan” who points out that under Ex parte Young (which is still good law!) a person can sue to enjoin state officials in federal court to prevent the enforcement of unconstitutional state laws notwithstanding the 11th Amendment. And sure, that’s right; I’m on board with Professor Coan. But the article gives the impression that this whole 11th Amendment issue is sort of “esoteric and abstruse and the decisions inconsistent” so maybe, just maybe, this plan will work if we can just get a good decision on the 11th Amendment! And then we’ll be rid of Citizens United forever! Huzzah!
Of course, folks who dislike Citizens United have retweeted and Facebooked this article, spreading hope for some sort of tricky technical win over the Supreme Court. I think the Mother Jones article does these readers a disservice because, even if TEAM is right about its 11th Amendment argument (which is a long shot), this plan has absolutely no chance of succeeding in doing anything — for a number of reasons:
1. Procedural Posture. Even under the broadest reading of the 11th Amendment, the Amendment only divests federal courts of jurisdiction in suits initiated by a citizen against a state. Bullock could arguably be such a suit because it was filed against Montana by the plaintiffs seeking a declaration against the enforcement of the election law. But even if the Supreme Court declines to review Bullock on 11th Amendment grounds, that doesn’t mean the law can never be reviewed by the Supreme Court in the future. All the Court would need is a different procedural posture for review.
For example, a corporation could just violate the law, which would then lead to some penalty being imposed against it in an enforcement proceeding initiated by the state. Of course, the Montana state courts would uphold the penalty, as they would be bound by the Bullock decision. But after the Montana Supreme Court upheld the penalty under Bullock, the corporation could then appeal that decision to the Supreme Court. That appeal would have no possible 11th Amendment problem since the appeal would be from an enforcement proceeding initiated by the state — not a lawsuit against the state initiated by the corporation. Viola… bye bye 11th Amendment problem.
2. Other States. There is no reason the Supreme Court’s possible decision to deny cert in the Montana case would have any effect in any other state. Sure, the Montana law would remain intact in Montana (at least until an enforcement action!), but the Supreme Court’s denial of cert would not have any precedential value in any other jurisdiction. All the denial of cert would do is permit the Montana decision to retain its precedential value — which is absolutely zero outside the borders of Montana. New York courts and Washington courts and Florida courts would all still be bound by Citizen’s United, since the states all need to follow the U.S. Supreme Court, not the Supreme Court of Montana.
3. Supreme Court Jurisdiction vs. Federal Court Jurisdiction. Okay, this is a real non-rhetorical question; I’ve checked my old Fed Courts notes and can’t find anything on it. So here goes: The 11th Amendment reads as a limitation on the “Judicial power of the United States” in “any suit in law or equity.” However, I’ve really only ever thought about the 11th Amendment as it applies to the federal courts’ original jurisdiction — that is, as it applies to cases filed against states in the federal district courts. I’ve never really thought about whether it makes any sense to apply the 11th Amendment to the federal courts’ appellate jurisdiction. Does the 11th Amendment limit the Supreme Court’s ability to hear appeals from a state’s supreme court in cases where the 11th Amendment would have barred the original case from being filed in federal district court? The language of the Amendment itself doesn’t seem to make any such distinction between the appellate and original jurisdiction of the federal courts. But nobody seems to pay any attention to the language of the 11th Amendment.
Just thinking about it for a second, however, I can’t imagine that the 11th Amendment bars all Supreme Court appellate review to the same extent it would bar initial suits in the district courts. For example, suppose that a woman files a claim in state court under a purely state cause of action against the state seeking damages for lost wages. She wins! However, the state court reduces the jury award because under the relevant state law, damages for lost wages owed by the state are reduced by a factor of 0.70 if the plaintiff is a woman — to account for the fact that women generally make 70 cents on the dollar compared to men in the state, and the state is alright with that inequality. The state’s high court affirms the sex-based reduction in the damages award. Does the U.S. Supreme Court really lack jurisdiction to review and invalidate that state law regarding damages? Maybe before the filing of her suit, the woman could have sought an injunction under Ex parte Young against the state’s enforcement of the .70 law. But I figure that the 11th Amendment would bar the woman from filing her initial lost-wages claim in federal district court. Anyone have a case citation or an answer on this one?
4. Compelling Interest vs. Corporate Rights. Why do people disagree with Citizens United? Most of what I hear against the decision concerns either (a) the idea that corporations have first amendment rights, or (b) the idea that money = speech. People seem to hate those things. And when you read someone talking about “reversing” Citizens United, those are usually the holdings to which they are referring.
Well, as far as I can tell, the Montana Court’s Bullock decision does nothing to upset those two holdings. Rather, the Bullock decision accepts that (a) corporations have First Amendment rights and (b) those rights encompass corporate expenditures. That’s why the Montana Supreme Court subjected the relevant election law to strict scrutiny. If money was not speech, or if corporations had no rights, then there would have been no need to subject the law to that heightened scrutiny.
Where the Montana Supreme Court parted ways with the U.S. Supreme Court was whether (1) the record contained sufficient evidence of actual corruption caused by corporate involvement in campaigns and (2) the need to fight that corruption (if it existed!) constituted a compelling state interest. The Montana Supreme Court answered both questions in the affirmative. Those answers were the bases for the Montana Court’s decision.
Accordingly, even if by some magic wand the Supreme Court of Montana was declared the ultimate arbiter of federal constitutional rights, and even if the Bullock decision was allowed to stand as the law of the land across the United States, corporations would still have constitutional rights and money would still be speech. The narrow holding of of Bullock: Montana’s law was passed in response to sufficient actual corruption so therefore Montana, and only Montana, had a compelling state interest to limit corporate political speech. If that sort of corruption has not been a big problem in, say, Iowa, well then Iowa might not be able to pass such a law. I don’t know how happy TEAM or Mother Jones would be with that.