www.MoneyOuttaPolitics.org mop20p@gmail.

com

CITIZENS UNITED REDUX -- URGENT ACTION NEEDED NOW

On Friday, April 27, Montana will file its Opposition to a Petition that seeks for the U.S. Supreme Court to reverse Montanas landmark ruling whereby Montana refuses to enforce Citizens United. Montana's courageous and important stand against Citizens United could be reversed summarily by SCOTUS in the absence of widespread public attention and political support for this case. If SCOTUS refuses to hear the case, Montana's state law prohibiting corporate money in politics will stand, and serve as precedent for other states to enforce or enact similar laws with some confidence that they will not be overturned by the Supreme Court. Attorneys general from other states are authorized to file amicus briefs to show solidarity with Montana. The AGs may also submit arguments based on the rights of all the states not to be required to undermine democracy in their state by enforcing an unconstitutional decree of the Supreme Court. This is an important way to convey to the Court the importance of the issue and also to appeal to their states rights ideology. There are states rights issues raised by the Montana case that make this a stronger case than Citizens United, and make it a case that AG's and justices across the political spectrum can support.

** There is an April 27 deadline to file an amicus brief to support Montana **

WHAT YOU CAN DO Help to publicize this case so the Supreme Court does not summarily reverse the decision behind closed doors and of of sight of public opinion. Contact your state attorney general -- and spread the word for others to do the same -- asking them to file or join an amicus brief by April 27, 2012.

Victory by the states in the Montana case can lead to the effective reversal of Citizens United because states are the primary, constitutional source of election laws.

Citizens United II Money in Politics Returns to Court from a States' Rights Angle
(Note: some underlined words refer to hyperlinked documents in the online version of this document at www.MoneyOuttaPolitics.org)

On March 28, 2012, the US Supreme Court docketed a Petition from two Montana corporations asking the Supreme Court to reverse the Montana Supreme Court decision that refused to apply the reasoning of Citizens United to overturn a state anti-corruption law. The 1912 Montana law prohibiting independent corporate electioneering expenditures was similar to the federal law overturned by the Court in Citizens United. But the Montana Court distinguished Citizens United on the grounds that the facts supporting the enactment of Montana's law were different than those found by the Citizens United majority to invalidate the federal law. Montana experience belied the US Supreme Court's factual finding that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. The Petition asserts that this finding is not a question of fact to be determined by courts on the basis of evidence, but that the US Supreme Court may, contrary to all evidence, in effect, decree that night is day not just with respect to federal concerns such as the act of Congress overturned in Citizens United -- which is a matter between itself and Congress -- but also for Montana and the other states. Unlike most of the thousands of Petitions filed in the Supreme Court, it can safely be predicted that the Supreme Court will take the Montana case -- unless there is an overwhelming objection from the public and the states prior to that decision. What is not certain is whether the Court will summarily reverse the case to avoid public attention to what they are doing, or whether it will agree to first consider the arguments against reversal by setting the case for oral argument. The latter normally entails public attention, opportunity to participate by way of amicus, oral argument, and a published opinion where the Court must justify its decision. A summary reversal would entail a lost political opportunity to have Citizens United reconsidered in light of states' rights concerns, with the full spotlight of attention of the kind that the Court recently attracted in the health insurance case. It would also foreclose organizing sufficient support to actually win the case by shifting one vote, and thereby prevent Citizens United from corrupting state elections. It is important not to wait to see if the Supreme Court will take the case before providing this support. That would be too late. The opposition to the Petition must be filed 30 days after March 28. (SC Rule 15). Without considerable public attention and support a summary dismissal is most likely. In most significant Supreme Court cases, interested outsiders submit amicus briefs. Such briefs have become both more common and more important to outcomes. (See Franze and Anderson, The Court's increasing reliance on amicus curiae in the past term [Nat. L. J., Aug. 24, 2011]). The most influential kind of amicus brief is that from government, such as a state attorney general, when a case involves states' rights. Such briefs may be filed without consent of a party or permission of the Court. (SC Rule 37. 4) For the reasons explained here, such amicus support could have a significant impact on the outcome of the Montana case and that outcome is highly significant. The Petition dedicates about a third of its pages to its request for summary reversal. It would like the case to disappear swiftly and silently because, as the Petition concludes: [I]f the Supreme Court countenances [the Montana Supreme] Courts approach there shortly will be nothing left of Citizens United at the state level. If there is nothing left of Citizens United at the state level there will effectively be nothing left of Citizens United in elections, because under Article I, Sec. 4 of the Constitution it is the states who have the front line responsibility for election laws. There is broad concern and activity aimed at just this result through means that will take far more time and political energy than support for Montana's position in this case would involve. Diverting such available energy to instead encouraging submission of amicus briefs, especially by state attorneys general, would not be a fool's errand as Elizabeth Drew labeled the pursuit of a constitutional amendment that would accomplish less than this one case could accomplish. Four judges would likely vote to overturn Citizens United. Four votes are needed to grant a Petition. But it is not clear if it is enough to prevent a summary reversal. Denial of the Petition, which takes six judges, is least likely. Both denying summary reversal and then overturning Citizens United would require getting one of the five judges who voted with the majority in 2010 to change their minds, which is also unlikely.

But Montana has not and does not need to argue for reversal of Citizens United to win. From the states' perspective, there are a number of issues of federalism -- issues raising questions of states' rights which makes this case stronger than Citizens United. The Roberts 5 who decided Citizens United are supportive of states rights in other contexts. Presenting a strong legal brief from a large number of attorneys general on the various states' rights issues in this case could realistically create enough cognitive dissonance by at least one of the 5, probably Kennedy, to prompt a vote to deny the summary reversal. The states rights issues that could be briefed by AG's at this stage are substantial: - ELEVENTH AMENDMENT: The Constitution says a federal court cannot hear a case by an individual or a corporation against a state. The Supreme Court has inserted into the Constitution an amendment unratified by the states creating an exception to that rule by way of an acknowledged legal fiction. The states can argue that that judicially legislated fiction should not properly extend to this case. - A corporation created under Montana law is defined as one prohibited from investing in politics. Citizens United did not give Montana's corporations rights; it gave its voters rights to get information from all sources, including corporations. In this case the Montana Court found that the corporation's principals have other means to address political issues. Therefore the US Supreme Court's concern that voters will not have a chance to hear what these corporations have to say does not apply in this case. - That no Montana voter has asserted any desire for political information from these corporations raises a question of standing. When no voter even has standing to litigate such a generalized grievance, Montana corporations cannot then assert the rights of Montana's voters against the very State which those voters created to represent its interests. - The Petition claims that the state judges' oath to uphold the Constitution requires them to enforce Citizens United in this case. Conversely, the states contend that the oath requires their judges to make the decision Montana's did, which is more firmly grounded in reality and constitutional values. The Supremacy Clause (Article VI) provides that the Constitution, In its Opposition to the and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Corporations stay application, [Montana] argued against summary Judges in every State shall be bound thereby. The states will reversal, based on due respect for . . . enforce any election law enacted by Congress pursuant to its' exclusive power to review state election law applicable to federal sister supreme courts in the states, all of whom are also bound by Oath or elections under Article I, Section 4 or as required to assure a Affirmation, to support this republican form of government in state elections as the Constitution. Oppn 9-10 (quoting Constitution requires. U.S. Const. art. VI, 3)." Petition, p.32 The Supreme Court has inserted into the Constitution an amendment unratified by the states that its interpretation of the Constitution shall also be followed by the states even if it conflicts with the Constitution, and the Laws of the United States. The states contend that, consistent with the Supreme Court's own jurisprudence in the area of state election law -- which involves a traditional political question outside the jurisdiction of the Court -- only interpretations of the Constitution affecting their election laws made by the elected branches of the federal government must be accepted by the States as the supreme Law of the Land. (Luther v Borden) Enforcement of Citizens United in this case would violate the states' constitutional obligation to provide a republican form of government, which -- as a matter of federal separation of powers -- is guaranteed solely by the elected branches of the federal government. The Supreme Court lacks authority to intervene in state election law independent of the elected branches of the federal government. * * * * * * * * These potential states' rights issues make the Montana case legally distinct from and strronger than Citizens United. Montana's arguments can be summarized in two questions:

First, can the Court, on request of a corporation, without the support of either of the two elected branches of the federal government, impair a state's election laws' compliance with the Constitution's mandate that it maintain a republican form of government? Second, if so, can it do so by presenting as settled constitutional law a virtually unsupported factual finding, made in the absence of standard judicial fact finding processes, and contrary to the facts found by Congress, the state court, the state legislature, and the broad understanding of the people? Lawyers who work on amicus briefs before the Supreme Court say it can cost $25,000 to $100,000 in lawyers time and expenses to prepare one, plus $1,500 or more to have them printed and distributed at the Court. This is far less money than is being raised and spent by a variety of public interest groups on the constitutional amendment proposal which is a less plausible, less appropriate, and far longer term approach than would be a strong effort to lobby and assist Attorneys General in submitting amici briefs in opposition to the Petition for Certiorari 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)

* * * * * * * *

The above synopsis of the current status of the "Citizens United II" case (American Tradition Partnership, Inc. v. Bullock) was prepared by Rob Hager. Rob is a public interest attorney, international consultant, and an activist for many causes including the Money Out of Politics movement. He has written on Corporate Personhood and local strategies for fighting money in politics, and has advocated effective strategies for reversing Citizens United. Among past successes in the Supreme Court, he secured the support of 20 state attorneys generals to help win the Karen Silkwood case. As counsel for Vietnam veterans, he obtained the support of all 50 attorneys general in a petition drive in the Supreme Court to challenge the sell-out global settlement of Agent Orange Litigation claims.