Montana Attorney General Steve Bullock is failing to “do all he can” — as he has publicly claimed — to win Montana’s U.S. Supreme Court battle against Citizens United. He has refused to put forth a possible winning argument in the case and he won’t explain why. According to a report published on Saturday by Russell Mokhiber in the well-established Washington, D.C. newsletter, Corporate Crime Reporter, AG Bullock’s office told a lawyer who filed an amicus brief in support of Montana that the attorney general is refusing to assert Montana’s sovereign immunity from suit, paradoxically, out of fear that the immunity argument could actually win the case. The case is American Tradition Partnership (ATP) v. Bullock which challenges the validity of the controversial Citizens United case as it applies to state elections and is now awaiting the Court’s decision whether to reconsider its 2010 ruling that struck down federal prohibitions of corporate electioneering.
Attorneys Carl Mayer and Rob Hager have each submitted amicus briefs on behalf of two organizations, The Eleventh Amendment Movement (TEAM) and Essential Information, respectively, arguing that ATP’s attempt to overturn Montana’s law should be rejected because the U.S. Constitution’s 10th and 11th Amendments prohibit the Supreme Court from hearing this case against the state of Montana. The 11th Amendment expressly forbids a private party from suing a state in federal court.
Mokhiber’s article says that when Mayer recommended that Montana’s attorney general raise the jurisdictional issue before the Supreme Court rules on the case, an assistant attorney general replied (by e-mail) that his office was reluctant to raise 11th Amendment issues because of “the potential implications in other contexts, if your theories were adopted.” Mokhiber reports that Hager responded to the assistant attorney general that “this [statement] indicates that you do contemplate that these arguments are powerful enough to win this case. On this point we would seem able to agree.” Hager received no reply to his letter.