The Eleventh Amendment Throws in the Towel

It looks like I’m not going to get any answers to my questions about the “11th Amendment” argument to “invalidate” Citizens United.

Last week, I discussed the Essential Information’s amicus brief, which was a complement to The Eleventh Amendment Movement’s (“TEAM”) amicus brief, both of which argued that the Eleventh Amendment deprived the Supreme Court of jurisdiction to review (and reverse) a Montana state court decision rejecting Citizens United. At the end of the day, my main observations were (1) that even if TEAM and Essential Information were 100% right about everything they said, the Montana law could still be reversed the moment Montana tried to actually enforce it, and (2) that even if the Supreme Court rejected Ex parte Young as a basis for jurisdiction in the district courts, it would be a huge break from precedent for the Supreme Court to decide that it did not have appellate jurisdiction over state court cases that (admittedly) could not be initially filed in federal court. (The TEAM brief did not address this second issue at all; the Essential Information addressed the issue, but tried to make it seem like prior cases favored their approach, which they did not.) Continue reading


Finally, the Second Eleventh Amendment Brief (or Our Long National Nightmare Is Over!)

Following up on my two previous Citizens United-related posts (here and here), along with various Twitter messages regarding the continuously forthcoming “second brief” on the 11th Amendment, it appears the long-awaited second brief has finally been posted on the TEAM website. Unlike the TEAM brief, this second brief does address the relevant distinction between the Supreme Court’s original and appellate jurisdiction. Continue reading

Citizens United and the Eleventh Amendment: An Update

Since I published last night’s post about The Eleventh Amendment Movement (“TEAM”) and Citizens United, TEAM has posted (and presumably filed!) its amicus brief. It’s available here (via Scribd). Before filing the brief, TEAM let me know via Twitter that my “current analysis is incomplete” — since I had not read the (at that time unavailable) brief — and that TEAM welcomed further discussion after I’d read the brief.

Well, I’ve read the brief, and here is my further discussion. [See update below…]

Not surprisingly, the TEAM brief does not address my “procedural posture” argument — that even if the 11th Amendment does bar the Supreme Court’s review of this case, the Montana law could still be struck down following the appeal of an enforcement action. The decision not to address that argument is not an oversight or a mistake by TEAM; it is entirely proper. The hypothetical enforcement appeal is not before the Supreme Court and it would therefore be silly to spend time in the brief talking about some imagined potential case.

But while the Supreme Court may not care about the potential for a future enforcement appeal, folks supporting TEAM or its efforts should care. Since TEAM’s overall plan is to effectively overrule Citizens United, I’d be interested in hearing how it plans to deal with a future enforcement appeal if the Supreme Court does indeed decline to hear the Bullock appeal.

On the merits, TEAM’s brief essentially asks the Supreme Court to overrule Ex parte Young. And that’s fine. There are good arguments for overruling that case and perhaps some Justices would be willing to sign on.

However, the brief does not directly address (unless I just missed it) the question I posed regarding how the 11th Amendment applies to the Supreme Court’s appellate jurisdiction. TEAM discusses Chisholm and its subsequent overruling by the enactment of 11th Amendment as expressing the proposition that the Constitution does “not allow the Supreme Court to entertain a suit by a private citizen against a sovereign state without its consent.” But Chisholm was a case filed in the Supreme Court under its original jurisdiction waaaaaay back in the day when there was such a thing. The rejection of Chisholm doesn’t say anything about the Supreme Court’s appellate jurisdiction. Continue reading

Citizens United, Mother Jones, and the Eleventh Amendment — A Fool’s Errand

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. Continue reading