Citizens United and the 'Montana Model'

A Considered Response to the Supreme Court Citizens United Decision

May 2, 2012

_________________________________________________________________________________
Super PACs have arrived this election season and whatever your political point of view you will be targeted. Hundreds of millions of dollars, mostly to be spent via negative advertising, will be parlayed by Super PACs. These new entities, as a result of the Supreme Courts Citizens United decision, legally raise and spend unlimited sums of money to advocate for or against candidates. The 2010 Citizens

United ruling gave corporations and unions the right, under the doctrine that money is speech
protected by the First Amendment, to make unlimited independent expenditures in campaigns for elected office. Super PACS are pushing expenditures into the unaccountable mega-millions. The consequences have begun to roll out in 2012. The US Supreme Court's historic decision not only struck down a federal statute, 2 U.S.C. 441b, and decades of settled campaign finance law overturning two of its own key campaign-finance decisions -- it has also jeopardized 26 states' laws prohibiting or limiting independent corporate expenditures. This decision establishes protection for a debilitating entrenchment of corruption at all levels of politics. Citizens United prevents effective campaign finance reform and hence fair and open elections. It ensures the influence of money-inpolitics, the escalating power of lobbyists, and and a profound shift in governance against the public's interests. According to many observers, whether conservative, liberal or independent, the consequences of this Supreme Court decision and other similar decisions, undermines the First Amendment and our system of constitutional protections. Instead of more free speech, the ruling gives corporations/corporate entities and moneyed interests unprecedented power over political speech. One has only to look at the 2012 primary season within the Republican Party to witness the power of money to influence votes, mount negative attack ad campaigns, buy media time and resultant eyeballs and mind share (in advertising-speak) and generally monopolize election outcomes. In the upcoming 2012 general elections Democrats and Republicans alike will display an unprecedented level of negative electioneering, hundreds of millions of dollars spent on orchestrated assaults by a handful of individuals, taking attack ads to a new unprecedented high and public trust in politics to a new low.

As the Citizens United ruling opens a floodgate of money, the public's approval of government as expressed in polls diminishes to historic levels of mistrust, giving rise to anger and take back your country movements, left and right. While the Supreme Court argues among itself, issuing 5 to 4 decisions, public belief in government of, by and for the people wavers. An out-of-balance system grows significantly more quid pro quo and less democratic as a result of Citizens United. What are the possible remedies, solutions, legal approaches to turn the Court away from the untoward direction it has unfortunately chosen to go with Citizens United? The future under the sway of Citizens United is not credibility for the Courts authority but a predictable result deep citizen discontent after vast, unaccounted-for election spending, a campaign that will rival the worst in American political history. This is inevitable, unless we can turn the Court toward a ruling that would strike a balance for the greater good. To directly address the Citizens United ruling, we look to three reform options supported by the Constitution. Of these, the legal strategy we are calling the Montana Model, presented as Option Three here, is advanced as the most effective near-term approach to reversing Citizens Uniteds damaging effect on democratic elections. Option One: The Constitution, Article III, Sec 2, (the Exceptions Clause) grants Congress the authority to pass a law stripping the Supreme Court of jurisdiction over cases like Citizens United by ordinary majority vote. By stripping the Court's jurisdiction Congress would restore its own powers to regulate campaign finance. Yet it stretches credulity to envisage Congress employing its Exceptions Clause power, for this purpose, as this would require a robust congressional strategy in response to the Citizens United decision at the same time those interests unleashed by the decision are injecting unprecedented, unlimited amounts of money into elections. Given business-as-usual, what members of Congress can be expected put their re-election at risk by standing up for electoral integrity? Moreover, the recent Senate vote on a DISCLOSE bill to force disclosure of secret money in politics showed that this is a strictly partisan issue with Republicans voting in lockstep against any reform, however ineffective the Democrats' proposal may be to actually solve the problem. Within the prevailing pay-to-play reality, an unpopular Congress has neither motivation nor bipartisan votes to engage a more popular Supreme Court in a contest over separation of powers by stripping the Court of jurisdiction via Article III. Option Two: A Constitutional amendment is another proposed approach. An amendment enacting new constitutional text concerning campaign finance, unlike the majority vote required for Option One, would first require approval by a supermajority vote of each house of Congress. One asks again, who believes Congress, as it currently stands, will step up with a majority to effectively turn down unlimited

campaign money as allowed by Citizens United? Many of the proposed amendment texts on offer could actually cause more harm than good due to unintended consequences from unpredictable Supreme Court interpretation. And if a more effective text were to somehow pass Congress, notwithstanding the considerations that make Option One implausible, how many more years will it reasonably take for the required 38 states to ratify the text proposed by Congress? Given the political realities and facts on the ground, the amendment approach is an even more problematic strategy than Option One. Polls show increasing understanding of moneys corruption of US politics. Only 17% of voters now think government has the consent of the governed while 95% already know what money in politics buys. What is lacking is not public understanding of the problem but an effective strategy to deal with it. Look to the Equal Rights Amendment as a salient example of the path a congressional amendment proposal and state ratification campaign would have to take. First introduced in Congress in 1923, four years after the 19th amendment, the ERA was an uncomplicated text that clearly expressed the principle of equality between the sexes. It nevertheless had a convoluted fifty year history until its approval by Congress in the early '70's, and ultimate failure of ratification in the early 80's. In the midst of the ratification campaign, a Supreme Court decision, Buckley v. Valeo (1976) unleashed a wave of money that fueled opposition to the ERA, blocking three out of the four remaining state ratifications required to reach thirty eight states. Yet, twenty one states adopted versions of the ERA in their state constitutions, which leads us to consider what may be the most effective strategy for dealing with Citizens United. In recognition of the forward-looking citizens of Montana, we call this the Montana Model. Option Three: The Montana Model, a state-based response to Citizens United. States on their own without requiring consent from Congress possess constitutional authority to regulate both their state and federal elections. The Tenth Amendment of the Constitution secures the states' exclusive power over state elections. Article I, Sec. 4 provides states the primary responsibility for federal elections (including regulation of campaign contributions, reporting, disclosure, and so on) subject to the oversight of Congress. Congress may choose to exercise that power, for example, via the Federal Election Commission. A states right to regulate or entirely outlaw private interest money in politics is subject only to Congress' objection. It is politically unlikely that Congress would overtly oppose state law designed to control money in elections, where Congress itself provides none, because voters are unlikely to tolerate such a congressional effort to undermine election integrity. The Supreme Court is the more likely source of interference in the states right to oversee election campaigns. The Montana Model advantages from this legal framework and Montana's defense of its laws against corporate expenditures in elections. Stepping away from the Citizens United decision, the Montana Supreme Court rejected the one-size-fits-all approach of the US Supreme Court that every state must fall within its Court-mandated, unlimited corporate spending regime. In their appeal of the

Montana decision upholding Montana's law, two Montana corporations have asked the US Supreme Court to apply Citizens United to overturn Montana's election finance anti-corruption law, dating back to the era of Copper Kings, which outlaws independent corporate electioneering expenditures. The rejection or dismissal of the corporate-initiated suit against Montana will have far-reaching consequences. We believe it possible that the deciding vote in the Montana case could be cast to refuse to invalidate state election laws in violation of the 11th Amendment of the Constitution. If the strategy proposed here is taken up by sufficient Attorneys General, with support from public interest, good government advocates, legal scholars, media, journalists, bloggers and concerned citizens, we believe the upcoming decision on the Montana case could take a predictable 5 to 4 vote, and convert it to a 4 to 5 vote. Montana can win if one justice adheres to previously expressed views on Montana's 11th Amendment rights. The 11th Amendment bar to the Supreme Court hearing a suit against a state, or officials who act for the state, without its consent should apply in this case, where the plaintiff is neither sovereign nor authorized by Congress. Congress may specifically authorize lifting the 11th Amendment bar to private suits against a state in order to enforce the Civil War amendments' prohibition of racial and other discrimination. The executive branch can sue a state on behalf of the sovereign United States in order to enforce any provision of the Constitution or federal law. But Supreme Court precedent holds that private parties cannot sue a state on matters that implicate core aspects of state sovereignty or that could result in a burden on the state treasury. [E.g. Idaho v. Coeur d'Alene Tribe of Idaho.] The Supreme Court has developed convoluted and constitutionally unsupported exceptions to 11 Amendment immunity that it may or may not decide to apply in this case to grant itself the power which the Constitution withheld- to hear this case against Montana. If it does so, the Supreme Court will be changing the constitutional text as it did when it read its preferred election finance law into the First Amendment. The only express constitutional basis for interfering with state elections are the amendments prohibiting discrimination against any adult citizen on the basis of race (15th), gender (19th), payment of a tax (24th), or age (26th).
th

The lawsuit appealing the decision of Montana's Supreme Court could, if politically supported with friendly briefs from other states, succeed in defending the rights of states to enforce their election, campaign finance and anti-corruption laws going forward. This Montana appeal would be the opening initiative in a strategy that could work to preserve the rights of all states in the election campaign and lobbying arena. This is the approach we present as a best model the Montana Model to address the flight away from fair elections, campaign integrity and governance that is widely perceived as not of, by and for the people. We propose a Montana solution that enlists the two factions on the Court to agree to allow state-based approaches to election finance.

We propose using the Montana law currently before the Supreme Court as a template, a best practices model to be considered alongside other states' similar election laws and regulations that prevent unlimited political spending. Together the extensive body of state election laws establishes a model legal framework for acceptable campaign finance limits. The effort to defend the Montana Model would attract support from across the political spectrum, joining together disparate advocates. The effort could mobilize widespread support from those usually more conservative voters who support states rights, joined up with those often more liberal voters more concerned about reducing the influence of money-in-politics. This potential political alliance operates from the level of the Supreme Court, where there are two distinct camps on the separate issues of state rights and money-in-politics, and extends all the way to state legislative bodies and voters. Together the two camps, led by Attorneys General from both camps, could step up to support the rights of states to oversee elections free of a federal judicial mandate, such as the Citizens United decision, ordering one-size-fits-all elections for everyone. Montana's courageous citizens and officials present a challenge to those of other states to similarly stand up to the Supreme Court. We believe most all states will defend the language, and intent, of the original Constitution to leave most election matters closest to the people, where citizens vote, in their towns, communities, and states without interference from a Supreme Court unsupported by either of the elected branches of the federal government. The viability of this strategy will be initially decided by the Supreme Court in Western Tradition Partnership v. Attorney General, 363 MT 220 (2011), stayed pending writ of certiorari sub nom. American Tradition Partnership, Inc. v. Bullock, 565 U.S. __ (February 17, 2012 ). Whether the Supreme Court takes on the appeal (i.e., grants writ of certiorari), will be determined sometime after May 28 th, ten days after opposition briefs are due. There is potential for an intense spotlight to be thrown on the Supreme Court and its decision. The Court takes a summer vacation just after the case is scheduled to be submitted to it at the end of May. Its decision whether to hear the case may not come until June or even as late as the highpoint of the presidential election campaign in October. While the case is under review, the Courts Citizen United decision prevents enforcement of Montana's and implicitly other states' similar laws. The best result in the Montana case would be for the Supreme Court to recognize the constitutional restrictions on its jurisdiction over this private suit against Montana by refusing to hear the case. If the Supreme Court chooses not to take the Montana case on appeal Montana can enforce its law and by implication every state with a similar law will be able to enforce its law. This would be an initial victory in the battle to establish the states' independence from Supreme Court-mandates that have stripped away both the states' authority and any meaningful Federal Election Commission oversight of elections.

If the US Supreme Court grants the corporations' request to take the Montana case on appeal, and then reverses the Montana Supreme Court's decision, they will be enforcing Citizens United in Montana and imposing its dictate to invalidate all similar state election laws. The states' ability to protect the integrity of their elections from unlimited corporate spending would cease. Reversal of the Montana Supreme Courts decision would shut down what may be the most politically promising approach available in the near future to provide for fair, more open and democratic elections. Yet, one Supreme Court judge who voted with the majority in Citizens United could choose to recognize the value of a balance between federal and state power in the conduct of elections. One such vote to reject jurisdiction of the Montana case would open up a strategy we are putting forward as the best, most practical approach to render Citizens United moot and strike a balance between state and federal power. We believe a balance can be struck that is eminently constitutional by focus on the Court's potential one, swing vote and making a coordinated effort in friendly briefs, particularly by AGs concerned about the protection of their state's legal powers, accompanied by wide-ranging citizen support of fair and democratic elections. Since all elections are conducted at the state level, this election powers in balance ruling would serve as a framework for foreclosing the Supreme Court from trumping long recognized states rights. The Supreme Court can rise to a new level of citizen respect as it moves to balance a tendentious decision in Citizens United, with public support from multiple points on the political spectrum. Montanas defense of its election laws before the Supreme Court should be looked at carefully by all parties by citizens, elected officials, good government activists, scholars and the news media, by conservatives who believe in state rights and the import of the founders intent, and by liberals who hope for a more responsive government.. If the arguments to strike a balance are taken up, considered and judiciously ruled upon, the outcome of the Montana appeal could be more than salutary; it could be profoundly reassuring, reminding all of what is possible in avoiding the deep, negative consequences of drawing hard lines where elections, campaigns and policy decisions are waged with increasingly negative consequences. Open and fair elections are the foundation of a working democracy. Election laws enabling participation by all in debate is vital to a healthy democracy. We should look to more political participation not fewer, more powerful players. If the State of Montanas attempts to provide a regulatory framework for fair, open elections is to stand, and become one states model of what is possible state-by-state, the following must occur before May 18th of this year. Amici briefs must be submitted in the Montana appeal by states Attorneys General pointing to

specific language in the Constitution as to states' rights to regulate elections without interference from the US Supreme Court, other than to enforce prohibitions against discrimination as enacted by Congress. AGs have until May 8 to file notice of their intent to file an amicus brief and until May 18 to file the brief. States that have election integrity laws like Montana's corporate independent-expenditure ban -- Mont. Code Ann. 13-35-227, laws that the Citizens United decision will prevent from being enforced, need to bring their states cogent arguments forward in Amici filings. These states Attorneys General and others could, and should, support a separate Brief Of State Amici In Opposition To the Petition For Writ Of Certiorari on grounds of the States' 11th Amendment immunity from private suits. Every state can support the constitutional principle that the Supreme Court cannot on its own decide to hear a private suit against a state, like the suit against Montana, contrary to 11th Amendment immunity. An example of an 11th Amendment brief is available at this website -- http://www.11thamendment.org/ The success of efforts to help Montana obtain a favorable Supreme Court decision allowing the law of Montana to stand would have an immediate impact at all levels of politics. In as many as half of the states existing election laws similar to Montana's will be preserved. We anticipate that, with such success, additional states will be encouraged to follow Montana's example and adopt or improve their own election and campaign finance laws. With the federal government but not the states - remaining hobbled by Citizens United, it would be clearly up to the states to fight political corruption. Much is possible if the Montana model goes forward. One state at a time, it would be possible to reach the point where a majority in Congress is elected from clean election states. Plan B, What if? If the Supreme Court fails to observe the 11th Amendment limits on its power in dealing with the Montana appeal, and subsequently rules against the state of Montana, the battle for defending states rights to prevent corruption and enforce spending limits in their elections does not end. Congress could be asked to enact legislation under its Article III, Sec 2, Exceptions Clause power, such as the following:

"Eleventh Amendment Enforcement Act -a) Except as specifically provided by Act of Congress and the Eleventh Amendment of the United States Constitution, no judge of the Supreme Court or other court of the United States shall, without a state's express consent, adjudicate any suit in law or equity, nor rely on any prior judicial decision, involving invalidation or other review of any State or local election finance law, regulation, policy or decision prohibiting or otherwise regulating either any financial

contribution to a candidate for, or an expenditure affecting, any election conducted within its state." b) 2 U.S.C. 453(a) shall be amended by adding to the first sentence "insofar as state regulations are less restrictive than those provided in this Act."
With such legislation, Congress would be in the position of resolving a conflict between the rights of states and the Supreme Court rather than initiating a conflict between itself and the Court, as in Option One above. Because Congress would act in defense of states rights, it should be able attract some bipartisan conservative support along with the overwhelming support of the majority of voters who want cleaner elections. If this provision were enacted, a phased state-by-state campaign can proceed. There is no need to delay lobbying for this provision because it would likely also influence the Court toward recognizing states' rights as preferable to being chastised by Congress for failing to do so. We believe an appropriate precedent for such a phased strategy and success can be found in the similar phases of the womens right-to-vote movement in the US. The Supreme Court had denied women's right to vote under the Constitution . Yet women

won the right to vote at the state level starting with Wyoming in the 19th century. Women won
one state at a time until they were voting equally with men in a number of states that represented a clear majority of the electoral vote for President. Women could therefore speak truth to power, by control over Congress on the question of their voting rights. The women's right-to-vote movement employed a strategy of single-issue voting and state-by-state enfranchisement to force the President (Wilson) and Congress after a series of close votes to approve and propose to the states the 19th amendment. Women voters and their allies then caused of the states to ratify. The amendment imposed the enfranchisement of women on the remaining recalcitrant states. Yesterdays Wyoming can be todays Montana. The success of the womens organizing model was the largest enfranchisement campaign in American history. The womens right-to-vote movement serves as a model for re-enfranchising citizens today. Citizens who have been increasingly disenfranchised by Supreme Court decisions establishing the power and undemocratic impact of money in politics can apply the womens right-to-vote model of state-by-state reform. In achieving full citizenship, the womens right to vote began with the state of Wyoming. To get money out of politics it can be the Montana Model that leads the way toward more inclusive, fairer elections.

Steven Schmidt, Clearwater, Florida Rob Hager, Santa Fe, New Mexico

Citizens United and the 'Montana Model'

References - http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission
In December 2011, the Montana Supreme Court in Western Tradition Partnership, Inc. v. Attorney

General of Montana upheld that state's law limiting corporate contributions. Examining the history of
corporate interference in Montana government that led to the Corrupt Practices Law, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United. Judge James C. Nelson, dissenting, agreed with the majority that Citizens United was incorrectly decided but argued that Citizens United nonetheless precluded the Court's decision. In February 2012, the Supreme Court blocked the Montana Supreme Court's decision pending submission of cert petitions. Justices Ginsburg and Breyer released a short statement, urging the Court to revisit Citizens United and "to consider whether, in light of the huge sums of money currently deployed to buy candidate's allegiance, Citizens United should continue to hold sway". The Court would hear the appeal in the October 2012 term, unless it denies cert as Montana will request, or summarily reverses the decision based on the cert briefs some time after it receives them at the end of May.

Stare Decisis after Citizens United: When Should Courts Overturn Precedent / Cato Institute The Hard Truth of Citizens United / Salon The Post Citizens United Fantasy-land (Problems of disclosure laws) Georgetown Law Cornell Journal of Law & Public Policy

Citizen Involvement:
Before May 18th, contact your state's Attorney General to support Montana via an amicus brief Contact your members of Congress to support Montanas election laws by requesting they Support the Eleventh Amendment Enforcement Act

Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has. - Margaret Mead

References: State campaign financing oversight rejected by Supreme Court http://www.reuters.com/article/2012/06/25/us-usa-campaign-court-idUSBRE85O0P520120625 http://www.nytimes.com/2012/06/26/us/supreme-court-declines-to-revisit-citizens-united.html?_r=0 http://www.washingtonpost.com/politics/supreme-court-throws-out-montana-ban-on-corporatecampaign-spending/2012/06/25/gJQAZjUx1V_story.html http://www.washingtonpost.com/blogs/the-fix/post/supreme-courts-montana-decision-strengthenscitizens-united/2012/06/25/gJQA8Vln1V_blog.html http://www.politico.com/news/stories/0612/77788.html http://www.theatlantic.com/politics/archive/2012/06/supreme-court-again-smacks-down-campaignfinance-reformers/258936/