(I asked Bill Sorrell this question during the AG Debate at Contois in Burlington.  He tried to skirt the answer.  Jimmy Leas has done an excellent job articulating what I was trying to have answered by Mr. Sorrell. James Marc Leas is a Vermont patent lawyer who has written several articles about money in elections. Rob Hager is an experienced public interest litigator, and he filed the amicus brief in the Montana case on behalf of Essential Information.

– promoted by Maggie Gundersen)

Vermont won a suit filed by Vermont Right to Life seeking to bar enforcement of provisions of Vermont’s campaign finance law. US District Court Judge William K. Sessions III issued the 80 page

decision on June 21.

Notwithstanding this important victory,on July 25 Attorney General Bill Sorrell announced that he will not enforce certain provisions of Vermont’s campaign finance law in future cases and that he will seek a change in the law, opening the floodgates of money in Vermont state elections.

One of the first beneficiaries of this non-enforcement was Attorney General Bill Sorrell himself. An out-of-state PAC started purchasing nearly $184,000 of TV ads in support of Attorney General Sorrell’s re-election campaign against Chittenden County State’s Attorney T.J. Donovan soon after Mr. Sorrell’s announcement that he would not enforce Vermont’s limits on “independent” PAC contributions.

The authors of this article reviewed US Supreme Court cases and found four grounds on which Vermont can enforce and defend its campaign finance law notwithstanding the Supreme Court decision in Citizens United. These grounds, and the US Supreme Court cases supporting, them are described in a detailed open letter to Vermont Attorney General Bill Sorrell and Assistant Vermont Attorney General Megan J. Shafritz. They include state sovereign immunity, standing, the political question doctrine, and an exception to Citizens United carved out by the Supreme Court for foreign sources of money. Most importantly, the authors found recent US Supreme Court decisions showing that the usual exception to sovereign immunity, called the Young fiction, does not apply when the fundamental sovereign legitimacy of the state government is at risk by a suit against the state. Nothing is more fundamental to the legitimacy of state government than election integrity that ensures a government of, by, and for the people. That election integrity was unnecessarily put at risk by Mr. Sorrell’s non-enforcement of Vermont campaign finance law.

You can read the open letter by clicking to see the rest of this article.

August 22, 2012

Bill Sorrell, Vermont Attorney General

Megan J. Shafritz, Esq.,

Assistant Attorney General, Civil Division Chief

Office of the Attorney General

109 State Street, 3rd Floor

Montpelier, Vermont 05609-1001

Dear Attorney General Sorrell and Assistant Attorney General Shafritz:

Thank you very much for responding to my email to Attorney General Sorrell regarding the defense of Vermont law restricting corporate and individual spending in Vermont elections. This letter also responds to public statements about sovereign immunity made on August 16 by Mr. Sorrell during a debate in Burlington with TJ Donovan, his opponent in the Democratic Primary.

Defending Vermont election finance law is important to all Vermont citizens who want to prevent a regime in Vermont in which our Vermont candidates-or anyone acting on their behalf–“have the constitutional right to purchase their election,” Buckley v. Valeo, 424 U.S. 1, 260 (1976) (White, J. dissenting).

Because your letter and Mr. Sorrell’s statement reflected a fundamental misunderstanding of the law related to sovereign immunity I asked Rob Hager, an expert in this area of law who prepared an amicus brief in the recent Montana election finance case, to join me in the following detailed letter.

In this letter we will show that US Supreme Court decisions provide ample grounds for Vermont to enforce its election finance law and for the defense of that law from suit by a private party. These US Supreme Court decisions suggest that, while the Ex Parte Young exception to sovereign immunity you mention is certainly applicable to many civil rights matters, the exception is not applicable where the fundamental sovereign legitimacy of a state is put at risk by a private party lawsuit. Attorney General Sorrell’s recent public statement equating the use of 11th Amendment sovereign immunity to protect state election integrity laws that prevent purchase of elections with the proper federal enforcement of civil rights laws against states in the South several decades ago shows that his understanding of 11th Amendment jurisprudence may be somewhat out of date.

Several legal tools are available in addition to the 11th Amendment. Vermont and its state officials can raise the venerable political question doctrine to defend Vermont’s election finance legislation from judicial interference.  Vermont can also raise the closely related lack of “standing” of any private party to sue the state or its officials based on the reasoning the Supreme Court used in its decision in Citizens United.  Finally, Vermont and its state officials can invoke the Supreme Court’s modification of the decision in Citizens United in its more recent Bluman v. Federal Election Commission case in order to defend Vermont’s elections from money originating outside Vermont. The recent purchase of hundreds of TV ads on behalf of Vermont Attorney General Bill Sorrell, paid for by a PAC with out-of-state funds largely obtained from the Washington D.C. based Democratic Attorneys General Association, falls into this category.

Assertion of the above four defenses under the cases described here, would make any private suit to overturn Vermont election financing law difficult, regardless of whether the private party sues Vermont in federal court or in state court.

Section 1983

In support of your decision not to enforce a key portion of Vermont election integrity law, you invoke the dangers of US Supreme Court precedent under federal civil rights law, Section 1983. You state that under §1983 a court can declare a state law unconstitutional and require the state to pay plaintiff’s attorney’s fees. You also state that the 11th Amendment does not bar such lawsuits.

However, we would respectfully ask you to consider the US Supreme Court’s holding in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) and related cases that, although § 1983 applies to local and municipal governments, a State is not “a person” within the meaning of § 1983 and a State cannot be subject to suit under § 1983 without either its consent or legitimate abrogation of its sovereign immunity by Congress. The Court held:

Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987) (plurality opinion), or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity.

In the same case the US Supreme Court held that § 1983 similarly does not apply to state officials acting in their official capacities:

Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official, but rather is a suit against the official’s office. Brandon v. Holt, 469 U. S. 464, (1985). As such, it is no different from a suit against the State itself. See, e.g., Kentucky v. Graham, 473 U. S. 159, (1985); Monell, supra, at 436 U. S. 690, n. 55. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device.

We hold that neither a State nor its officials acting in their official capacities are “persons” under § 1983.

Moreover, as said in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 269 (1997) (Kennedy, J.) :

When suit is commenced against state officials, even if they are named and served as individuals, the State itself will have a continuing interest in the litigation whenever state policies or procedures are at stake. (emphasis added)

 In Howlett v. Rose, 496 U.S. 356 (1990) the Court further held that

the State and arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not subject to suit under § 1983 in either federal court or state court.

Howlett also reaffirmed the Court’s general holding in Quern v. Jordan, 440 U. S. 332 (1979) that “§ 1983 does not ‘override the traditional sovereign immunity of the States.'”

The US Supreme Court has thus now long held that § 1983 does not allow for suits in either state or federal court against states, arms of the state, or state officials acting in their official capacities, or even in certain instances, discussed more fully in the next section, when state officials are sued in their individual capacity.

Thus, if Vermont refrains from consenting to a suit that challenges its election integrity laws, under this long standing precedent, neither state nor federal courts will have jurisdiction to allow a non-consensual suit under § 1983 to proceed against Vermont or against Vermont officials if Congress has not expressly abrogated the states’ sovereign immunity in such cases.

In cases where states, arms of the state, and state officials are not subject to suit under § 1983 there is also no liability for attorney’s fees under § 1988.

Ex Parte Young

Your email also mentions Ex Parte Young (1908) which provided an exception to 11th Amendment sovereign immunity in certain types of cases where a private suit names state officials in their individual capacities as defendants .

Supreme Court decisions during the past 25 years have sharply narrowed application of what the US Supreme Court has labeled “the Young fiction,” a doctrine created by the Supreme Court at the height of the judicial activism that typified the “Lochner era.” These more recent cases indicate that both Montana’s Corrupt Practices Act, which was challenged in the ATP v. Bullock case, and Vermont’s election finance law would not be denied sovereign immunity from private suit by the Young fiction. Thus, if Montana’s AG had not waived the state’s sovereign immunity by inaction, contemporary Ex Parte Young jurisprudence discussed below shows that the suit by the private corporate entities that challenged Montana’s law would likely have been barred. Unlike Article III constraints on jurisdiction, 11th Amendment sovereign immunity must be affirmatively asserted by the state or may be deemed waived.  See Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998). “Unless the State raises the matter, a court can ignore it.”Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 388 (1998). Accordingly, Attorney General Sorrell’s public statement that the Supreme Court already knows about the 11th Amendment–as if the Court can be expected to itself raise and argue this defense on behalf of a state-is inconsistent with an important feature of 11th Amendment jurisprudence.

When the Supreme Court first overturned a state’s campaign finance law in First National Bank v. Bellotti, 435 U.S. 765 (1978), the Supreme Court had only just begun its retreat from Young. Any view that “the Ex Parte Young fiction” still allows suits against state officials as a means to legitimize challenges to the core sovereignty interests of states is now antiquated in view of later 11th Amendment jurisprudence.  These developments are addressed in detail in two complementary amicus briefs filed in the  Montana case: Amicus brief of The Eleventh Amendment Movement (TEAM) and Amicus brief of Essential Information.  

As these amicus briefs note, Justice Kennedy in Idaho v. Coeur d’Alene Tribe of Idaho announced the rule that where “special sovereignty interests” of the state are at risk:

We must examine the effect of the … suit and its impact on these special sovereignty interests in order to decide whether the Ex parte Young fiction is applicable.

The Young fiction was held inapplicable to the Idaho case.  Justice Kennedy explained that where  special sovereignty interests are at stake, “the dignity and status of its statehood allow [a state] to rely on its Eleventh Amendment immunity.”  Justice Kennedy further reasoned:

To interpret Young to permit a federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to adhere to an empty formalism and to undermine the principle, reaffirmed just last Term in Seminole Tribe, that Eleventh Amendment immunity represents a real limitation on a federal court’s federal-question jurisdiction. The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading. Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction. (emphasis added)

The Supreme Court subsequently went even further to limit the “obvious fiction” on which Young is premised, saying simply: “suits against state officers are barred … if the suits are, in fact, against the State.” Alden v. Maine, 527 U.S. 706 (1999).  Soon after that, the Court broadly undermined the sustaining premise of the Young fiction by holding that “sovereign immunity applies regardless of whether a private plaintiff’s suit is for monetary damages or some other type of relief.”  Federal Maritime Comm’n v. South Carolina State Ports Auth., 535 US at 765-66 (2002) (Thomas, J.).  Regardless of the relief requested it is now established that “Ex parte Young jurisprudence requires careful consideration of the sovereign interests of the State.” Verizon Maryland v. Public Service Commission of Maryland, 535 U.S. 649 (2002) (Kennedy J., concurring).   Last year the Supreme Court reconfirmed that: “The [Young] doctrine…does not apply when the state is the real, substantial party in interest,” Virginia Office for Protection and Advocacy v. Stewart, 563 U.S.___ (2011) (Scalia, J.) (internal quotes and citations omitted), to which Chief Justice Roberts, joined by Justice Alito, added a dissent adamantly “refusing to extend Ex parte Young to claims that involve “special sovereignty interests,” [by] rote application of the Ex parte Young  fiction.”

The last case showed disagreement among the justices about whether investigation of a state hospital  was a “special sovereignty interest.”  But Virginia Office demonstrates that Roberts and Alito, the two justices appointed after the last major 11th Amendment developments, are now the strongest advocates of the doctrine that Eleventh Amendment immunity fully applies when special sovereignty interests of the state are at risk, and that they would apply that doctrine to situations far beyond such obvious core sovereignty interests as the legitimacy of elections.  Accordingly, the five Supreme Court justices who decided Citizens United have all penned or joined opinions indicating that where significant sovereignty interests of the state are involved in a suit pleaded against state officials, such that the real party in interest is the state itself, the “rote application” of the Young fiction is inappropriate.  Your suggestion that Vermont’s campaign finance law should “simply” be subject to such a rote application of Young is thus opposed by five justices, the vote of only one of whom would be sufficient to uphold Vermont’s law when added to those of the four justices who oppose Citizens United as a blatant misstatement of first amendment law.

In the republican system of government established and protected by the Constitution, nothing is more central to the dignity of a state and no sovereignty interest can be more important than the sovereign legitimacy conferred by elections that faithfully express the consent of the governed.  In upholding Montana’s Corrupt Practices Act, for example, the Montana Supreme Court described how that state lost all sovereign dignity and legitimacy in the corrupt era of its “copper kings.” In that era, Montana’s governmental processes were subordinated to corporate money.  Montana’s Supreme Court made an impressive factual record of the impact of corrupt elections on Montana’s sovereignty prior to enactment of Montana’s election integrity law.  Unfortunately, Montana’s Attorney General failed to protect Montana’s sovereign dignity with the legal tools the Constitution provides, including 11th Amendment immunity.

If a state such as Vermont, in a suit that reaches the US Supreme Court, defends its election integrity law by asserting 11th Amendment immunity, along with the other available defenses against federal judicial interference in this core sovereignty interest described here, each of those five justices will need to choose for the first time between two competing doctrines to which they strongly adhere.  Each such justice’s rigid adherence, in six cases since 2006, to empowerment of the 1% by forcing unlimited corporate political spending and corruption on elections would be pitted against his strong support for state sovereign immunity when the fundamental sovereignty interest of the state involved happens to be the legitimacy of its elections.  Again, only one of these five justices need opt for sovereign immunity and join with the four justices who oppose corporate-controlled elections for Vermont to win such a case.

As shown, the unsourced assertion in your email of a rule that “sovereign immunity, which is protected by the 11th Amendment . . . simply does not prevent lawsuits challenging state campaign finance laws in federal court” is in fact simply not to be found in any decision of the Court itself.  It could not be found until the judges are forced to make such a choice by an Attorney General who cares sufficiently about both clean elections and states’ rights to assert the 11th Amendment defense in a case involving the regulation of money in elections.  Until then the general principle found in the several Supreme Court cases cited above will provide strong support for asserting the sovereign immunity defense and for arguing that the Young fiction does not apply where a state’s core sovereignty interests are challenged.

You also express concern about the prospect of attorney’s fee awards.  The rule that attorney’s fees would be allowed in a valid Young action, though such an award would “resemble a money judgment payable out of the state treasury,” as prohibited by Edelman v. Jordan, 415 U. S. 651 (1974), rests on the authority of Hutto v. Finney, 437 U. S. 678 (1978) and Missouri v. Jenkins, 491 U.S. 274 (1989). Hutto involved the rights of an individual prisoner while Jenkins involved racial discrimination against African-American students. In neither of these Young actions was the sovereign legitimacy of the state put at risk by the suit. Indeed, in each case, the sovereign legitimacy of the state was arguably enhanced by the outcomes of the suits. These cases demonstrate the actual and proper application of Young.

Moreover, the fact that “federal courts have repeatedly addressed the constitutionality of state campaign finance laws,” as you say, does not make such laws less central to Vermont’s sovereign legitimacy and hence any less exempt from the Young fiction.  The federal court involvement merely illustrates the failure of Attorneys General defending challenges to state election integrity laws to assert their states’ sovereign immunity from such suits. For example, Attorney General Bullock failed to do so in the Montana case – thereby wasting public resources on a losing strategy.

The Montana AG could have but did not use the open opportunity to present a previously unlitigated issue to the US Supreme Court, which could at least have avoided the humiliation of a summary reversal of the Montana Supreme Court decision upholding Montana election law. The Montana AG could have tested whether or not the five justices–who have opposed the Ex Parte Young exception when the sovereign legitimacy of a state is involved–would also refuse to allow Young to be applied to an election finance case in which corporations seek to freely buy state policies, contracts, laws, regulations, politicians, and their elections – essentially putting the core of the state’s sovereign  powers at risk.  

Likewise, Mr. Sorrell did not assert sovereign immunity as amicus in the Montana case, in Randall v. Sorrell (2006), or in a Vermont election financing case recently before Judge Sessions. Mr. Sorrell now declines to defend Vermont’s law at all in future cases and announced on July 25 he will seek a change in the law, opening the floodgates to money in Vermont state elections.

The public comment by the Montana Attorney General’s office in defense of his failure to assert sovereign immunity to defend Montana’s law was not that it was a losing argument, as your email suggests.  The reason given, the 11th Amendment’s “implications in other contexts,” was more a concern that the strategy would succeed and set a precedent!  The public record thus shows that AG Bullock did not raise the state’s sovereign immunity defense because he does not support the 11th Amendment itself, although his oath of office required him to support the Constitution, of which the 11th Amendment is an essential part.

Since Vermont Attorney General Sorrell recently asserted 11th Amendment sovereign immunity in a case now in federal district court in which Mr. Sorrell is seeking to prevent Vermont state workers from receiving overtime pay, one cannot conclude that Mr. Sorrell shares Montana Attorney General Bullock’s opposition to asserting 11th Amendment sovereign immunity because of “implications in other contexts.” As Mr. Sorrell appears to  support the 11th amendment-even in a context in which the state is seeking to revoke the legal and contractual rights of its own workers–he could surely also  assert Vermont’s sovereign immunity to avoid capitulation to out-of-state interests seeking to undermine Vermont election integrity who have no contractual claims whatsoever on the state.

Protecting civil liberties of individuals and protected groups

Under its 14th amendment § 5 powers, Congress has expressly abrogated sovereign immunity for certain civil rights actions. Unquestionably, if it wanted to do so, Congress could also abrogate a state’s immunity from certain suits that challenge election anti-corruption laws on 1st Amendment grounds. But, under the 14th Amendment, only Congress can abrogate sovereign immunity, and Congress has not done so regarding election financing. Though the Lochner era Court gave itself the power to abrogate sovereign immunity in the Young case in order to gut the 11th Amendment restriction on its power  to protect the interests of railroads, the contemporary Court recognizes that the Constitution does not allow the Court to abrogate 11th Amendment immunity in a case involving a state’s sovereign legitimacy  in the absence of congressional authority under § 5 of the 14th Amendment.  

The Supreme Court has held that such congressional abrogation must be specifically applicable to the case in which it is invoked.  “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment.”  Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985).  Congress has enacted no such specific abrogation of state immunity from private suit with respect to restrictions on spending in elections.  In fact Congress showed its support for such laws by passing its own laws restricting spending in elections that the Court invalidated.

The most closely analogous federal civil rights law would be the landmark Voting Rights Act of 1965. While that law does abrogate 11th Amendment immunity as a means to protect the federal civil right to vote free from discrimination, it does not protect the “civil right” to buy elections and influence politicians by financing their “independent” electioneering broadcasts.

Vermont election law restrictions are distinguished from cases in which the federal courts have properly enforced the civil rights of American citizens by the fact that enforcing civil rights does not put the sovereign legitimacy of the state at risk.  For example, when a state was preventing citizens from voting based on race, this state action in violation of federal civil rights laws undermined the state’s sovereign legitimacy; enforcing the federal law enhanced the state’s sovereign legitimacy. By contrast, Vermont’s election finance restrictions protect Vermont sovereign legitimacy by protecting the right of Vermont voters to have elections that reflect the will of the people and not the will of monied interests that corruptly profit from the influence they purchase.

The Constitution in Article 4, Section 4, guarantees Vermonters’ the right to a republican form of government-a government in which each person has an equal voice and an equal vote: as Lincoln said a government of, by, and for the people. This right will be denied or abridged if Vermont election finance law is left undefended in the future or is amended by the legislature so as to legalize bogus elections dominated by vast infusions of private money, just as federal elections have become. We therefore urge the Vermont Attorney General to assert 11th Amendment immunity and the other defenses described here to avoid this sure path to tyranny.

Citizens United

In Citizens United the US Supreme Court granted all voters an unrequested 1st Amendment “right” to hear electioneering messages purchased by anyone. This decision, opening the floodgates to unlimited corporate spending in elections, was not based on a right of the person or entity doing the speaking, including the corporate plaintiffs in Citizens United.  Although some fund-raising interest groups have popularized the contrary assertion, the decision in Citizens United had nothing to do with corporate personhood and recognized no 1st Amendment right of corporate speakers.  The decision was entirely based on the supposed 1st Amendment right of all voters to hear electioneering advertisements from all sources. Harvard Law Professor Laurence Tribe made this point clear:

The little-noted theory of Citizens United, after all, was not that corporations enjoy all the rights that ordinary people enjoy but, rather, that the First Amendment protects “speech” and listeners, not particular “speakers.”

Invoking 11th Amendment sovereign immunity to protect state election finance law does not abridge the rights of individuals or protected groups–or even the “rights” of corporations–since the decision in Citizens United did not actually grant corporations any additional rights.  Rather Citizens United imposed on all voters’ the “right” to hear what corporations pay to broadcast.

When the question for decision involves balancing competing universal rights of all the people in the state or nation, rather than the rights of a particular individual or protected group, this is a political question for decision by the people through their elected branches of government.  In this case the question is how to balance the right of all the people to have elections free of domination by monied interests versus the right of all the people to hear an unlimited number of broadcast election messages from corporations and others working for the 1%. Courts have power to protect the particularized rights of individuals and certain protected groups. The Constitution’s separation of powers denies Courts the power to resolve political questions.  Invoking state sovereign immunity to defend state election finance law from encroachment by a federal court is a necessary and appropriate means to protect the state’s fundamental legislative power to decide political questions consigned exclusively to state legislatures by the constitutional design.

Moreover, when a non-discriminatory law intended to protect the integrity of elections is challenged, its disparate impact on a small fraction of the persons affected does not create any individual right to file suit for such persons. Only a small fraction of 1% of the voters who contribute enough money are affected by Vermont’s campaign finance restrictions. As Justice Scalia noted in upholding voter ID laws, “without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.”  See Crawford v. Marion County Election Board, 553 U.S. 181 (2008) (“we have never held that legislatures must calibrate all election laws, even those totally unrelated to money, for their impacts on poor voters or must otherwise accommodate wealth disparities.”)  Similarly, in determining how large a contribution may be before it risks inducing corruption, a state legislature is not required to accommodate the minutely small number of donors who seek to profit by giving more.

When the asserted right is that of all voters in the state or nation to hear from all sources, as opposed to the right of all such voters to a fair and honest election process, the decision as to how those competing rights should be balanced is a political question for decision by the people through their elected branches of government in the legislative forum.  Our founding fathers understood that an unelected court has no role to play in such political decisions.  They provided for such balancing by the elected branches – the state legislatures and Congress, with participation by the elected executive.  For federal elections, the Constitution specifically codified this separation of powers in Article I, Sections 4 and 5.  Section 4 provides that the state legislatures and Congress decide the manner of conducting federal elections, including most importantly, election integrity; Section 5 provides that Congress-not the courts-shall be the “judge” of its elections. The framers of the Constitution, and the states that ratified it, were very careful to leave the unelected court out of such political decisions by uniquely giving the judging power over federal elections to Congress, not the Court.  James Madison, in Federalist 47, showed the importance given by the framers to maintaining the separation of powers: “The accumulation of all powers legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”  By presuming to usurp the legislative power over federal elections, this accumulation of judicial and legislative powers is precisely what five justices on the US Supreme Court have done.

To prevent the tyranny Madison feared, the Constitution provides a variety of checks and balances on all three branches of the federal government as well as on the relationship between the federal government and the states.  One of the most important of those checks and balances is state sovereign immunity from suit exemplified by the 11th Amendment.  

Invoking state sovereign immunity to defend state law from federal court encroachment on powers regarding elections that are reserved by the Constitution to the elected branches and to the states is a way to enforce both the political question doctrine and the constitutional design for state-federal relations.  Congress has a parallel check and balance to defend its own constitutional powers from judicial usurpation.  The Constitution’s “Exceptions Clause,” Article III, section 2, clause 2, authorizes Congress to remove issues, such as money in politics, from the appellate jurisdiction of the Supreme Court.  Congress’ failure to use this power–due to its growing comfort with a corrupt system where unlimited money legally buys influence over its members–makes it all the more important that the states not similarly abandon their authority under the 11th Amendment to prevent judicial intervention in their core sovereignty interests, especially when the issues also happen to be political questions upon which the federal judiciary has overstepped its constitutional authority.

Standing

The holding by the US Supreme Court that all voters have a 1st Amendment right to hear from all sources raises a closely related issue of standing. Normal rules of standing would preclude a corporate plaintiff, which, not being a citizen or a voter, lacks the right created by Citizens United to hear electioneering from all sources.  Rules of standing would also preclude any person from asserting a generalized grievance concerning this right of access to information that the Supreme Court in Citizens United attributed to all voters. See United States v. Richardson, 418 U.S. 166, 179, 205 (1974).  Therefore, no individual or corporation would have standing to bring a suit against Vermont to protect the first amendment rights of all voters, and Vermont could move to dismiss any such suit for lack of standing, whether in federal court or in state court.

Possibility that a corporate entity will sue Vermont in state court and avoid 11th Amendment sovereign immunity

The Montana Supreme Court decided that Citizens United applied only to federal election financing law and not to Montana’s election financing law.  The US Supreme Court summarily reversed this decision by the Montana Supreme Court because the Montana Attorney General did not offer any arguments, nor assert any constitutional right, that the court had not already considered two years earlier in Citizens United itself in overturning the federal law.  

Vermont state courts could make the decision to uphold Vermont election financing law for a variety of additional state grounds, provided that Vermont rested its decision on issues not presented in the Montana case and which would distinguish the Vermont case from Citizens United.  The Montana case teaches that the distinguishing grounds, however, should not be unique to Vermont but rather unique to all state elections as compared to federal elections.  

Unlike the defective litigation strategy of the Montana Attorney General, the Vermont AG could assert common law sovereign immunity in state court and 11th Amendment sovereign immunity in federal court to protect Vermont election integrity.  It could thus maintain Vermont sovereign legitimacy and the proper federal-state relationship set forth in the constitutional design, by defending Vermont’s right to have a government in which elections are determined by the people, and not by private self-seeking monied interests.

Moreover the Vermont Court could deny standing to a corporation seeking to assert the generalized right of voters to information, and also enforce the related political question doctrine to prevent judicial intrusion on legislative powers.

The appearance of conflict of interest

For an officer sworn to uphold the state’s laws to make legally unsupported arguments favoring interests opposing Vermont law and its voters, rather than choosing to research and make  available to the public well-considered arguments in support of Vermont’s law creates an appearance of a conflict of interest. This is of particular concern with respect to a law in which the public and the state have such an enormous stake and about which no worthy party has yet complained of injury.

The news that Mr. Sorrell’s campaign for reelection has been accused of “benefiting directly from official state policy” that he himself made and which undermines Vermont’s election integrity law raises additional concern. An out-of-state PAC, funded from outside Vermont, started purchasing nearly $184,000 of TV ads in support of AG Sorrell’s re-election campaign soon after Mr. Sorrell’s announcement that he would not enforce Vermont’s limits on PAC contributions.

Defending Vermont Elections from out-of-state money

Focusing for a moment on the out-of state-source of that contribution, we respectfully ask: what valid role do such out-of-state interests have to play in Vermont’s elections? Vermont can and should at the very least enforce its election campaign finance law against such out-of-state interests on the ground affirmed in Bluman by which the Supreme Court narrowed the right of voters to hear electioneering advertisements from all sources that it created for them in Citizens United.  Bluman validates the prohibition of electioneering expenditures from foreign sources on the ground that foreign interests do not share the same concerns as voters.  Judge Sessions observed that, in Bluman “[t]he three judge panel found (and the US Supreme Court affirmed) the government interest in ‘exclud[ing] foreign citizens from activities that are part of democratic self-government in the United States’ sufficient to justify the law’s expenditure ban.”  

Following the principle affirmed in Bluman, Vermont should – in the interest of the same democratic self governance – at least enforce existing Vermont law to prevent or limit all expenditures by sources foreign to Vermont, while simultaneously asserting its 11th Amendment immunity from being sued by any foreign interest against whom such a law might be enforced.

In light of the above, we would request that you reconsider your strategy on this issue of paramount importance to Vermont and consider asserting sovereign immunity, standing, the political question doctrine, and the Bluman decision allowing restriction of contributions foreign to Vermont.  We would be happy to respond further should you have any questions concerning legal principles discussed here.

Sincerely,

James Marc Leas and Rob Hager

James Marc Leas is a Vermont patent lawyer who has written several articles about money in elections. Rob Hager is an experienced public interest litigator, and he filed the amicus brief in the Montana case on behalf of Essential Information.