Bullock takes 5th on the 11th, puts Montana Corrupt Practices Act Decision at Risk

By JC

Wish I would have come across this sooner, and raised some hell. Following up on a link provided by feralcatoffreedom in a comment yesterday, I discovered the controversy surrounding Montana Attorney General (and Dem gubernatorial candidate) Steve Bullock was not doing all he could to secure victory in his defense of Montana’s near century-old Montana Corrupt Practices Act against corporate campaign bribes contributions.

In the wake of the infamous Citizen’s United ruling, American Trade Partnerships (founded by former MT republican congressman Ron Marlenee) sued the State of Montana to vacate the state’s Supreme Court ruling upholding the Corrupt Practices Act. They lost that suit in a 5-2 decision. ATP then asked the Supreme Court of the US to overturn the Montana Supreme Court ruling.

Steve Bullock, as Montana Attorney General, has been the lead  attorney defending Montana’s Corrupt Practices Act against ATP and Citizen’s United. That case currently is being considered by the SCOTUS, but it seems that Bullock’s refusal to use a particularly important defense — 11th Amendment sovereign state immunity — does not square with his proclamations to be doing all he can to defend Montana in this most critical of lawsuits that could open the way for states to protect themselves from the onslaught of corporate political money.

As is being tracked by many courts and 11th amendment advocates, it is a mystery why Bullock has refused to invoke the state’s 11th Amendment sovereign immunity against being sued by a corporation or individual in federal court. This case could easily be won by Montana asserting its Constitutional rights. Many folks are raising this issue at the last minute, as the SCOTUS will decide soon, if not already, how it will proceed with this case.

According to a report published on Saturday by Russell Mokhiber in the well-established Washington, D.C. newsletter, Corporate Crime Reporter, Attorney General Bullock’s office told a lawyer who filed an amicus ”friend-of-the-court” brief in support of Montana that the attorney general is refusing to assert Montana’s 11th Amendment constitutional sovereign immunity from suit because it is feared that the immunity argument could actually win the case.”

So Bullock is being accused of pulling back because he doesn’t actually want to win the case. Incredible. And this is the man who wants to be the next Governor of Montana? If the Montana Supreme Court case is overturned by the SCOTUS, based on an ineffective — and possibly sabotaged — defense, it will go poorly for the dems and their candidate.

This case is the only current hope that any effective defense against Citizen’s United can be raised by the states until the Constitution can be amended to reverse it. Why the hell isn’t the dem gubernatorial candidate doing all he can to win it? Guess he took the 5th, says his PR flaks:

“We have filed our brief. We don’t intend to make any commentary until after the Supreme Court decides how it will proceed.”

Un-frickin’ unbelievable. Especially if the SCOTUS decides to do a summary reversal, meaning they undo the Montana Court’s decision, and refuse to hear the case. By then it is too late to raise the 11th Amendment jurisdictional issue. And Montana’s Corrupt Practices Act fades into history.


  1. lizard19

    it’s probably political suicide to fight too hard against the entrenched corporate power that continues to dig its claws in.

    it doesn’t make this speculation that Bullock has pulled his punches with this case any less maddening.

    this is why I’m immediately suspicious of anyone who seeks to chase political power as a career, because you can’t climb up very far if you make the wealth accumulators uneasy.

  2. Turner

    I get nervous about states’ rights arguments. They have a nasty history.

    • I imagine Bullock does too.

  3. Thanks for writing this up, JC. I had the article, but I had some questions I wanted to sort out and I got lucky yesterday and heard Adam Furgatch of T E A M The Eleventh Amendment Movement on Talk Back KGVO Wednesday morning….and then came home to minor crisis which delayed that report.

    I don’t know how Bullock couldn’t go this path. By throwing the 11th at this case, and going all out for a denial of the writ, he loses one of the strongest bats he’s going to have given Citizen’s United.

    When SCOTUS doesn’t take a case, they make no statement (as far as I know). So it’s not like the U.S. would be subject to some huge lanky opining by some justice on the merits of the 11th and then maybe some accompanying concurrence or even a dissenting opinion. It wouldn’t build a body of law.

    As Furgatch explained on the show – by using the 11th, and if it is successful, the courts would never rule on the case at all.

    He gave a great history of the 11th Amendment, explaining how it came about because a citizen of North Carolina sued the state of Georgia. That didn’t sit well – state’s didn’t sign on for that kind of stuff (they were still pretty proud of their sovereignty.)

    That was 1794. Georgia lost, an uproar ensued, and long story short, the 11th Amendment was passed in 1794.

    He also talked about election law and the state’s ability to make their own in election law. Lots of good stuff. Sure wish KGVO posted audio.

    Furgatch was pretty interesting. Unfortunately, he faded out somewhere around Drummond (which was actually a record distance for me to pick up Talk Back.)

    There’s a bunch of youtube on Furgatch – here’s a short 3 minute one specifically on Montana’s case:

    If Bullock doesn’t pull the 11th, I’ma gonna call him the Manchurian Candidate.

    The guy sat around this year when the feds came moving in on medical marijuana. Few talk about it, but the feds certainly did not operate here without his help.

    Then we have the UM rape scandal. Why isn’t our AG down there asking questions too? Was state law followed? Were state civil rights laws followed? I mean – if the DOJ is down there in your front yard looking around, don’t you think you’d go down and have a look too?

    I didn’t vote for him in the primary, and if he doesn’t give this all the ammo he’s got, and Montana loses, he has lost every possible chance of me voting in the Governor’s race.

    Then again – I’ve yet to ever vote in that race in the general.

  4. Adam

    Bullock likes the votes he’ll get from his “stand” against big money in politics. The problem is, he also likes taking hoards of corporate cash to fill his own campaign coffers. Weighing the two has obviously been difficult for a career politician like Steve Bullock.

  5. Pogo Possum

    One of the first things you are it taught in law school is that if you have the law on your side, pound the law. If you have the facts on your side, pound the facts. If you have neither the law nor the facts, pound the table. Bullock has decided to ignore both the facts and the law and simply pound the table.

    He is positioning himself to be viewed as either an incompetent Attorney General or a political hack willing to sacrirfice his principles for political gain.

  6. zach

    My understanding (not a lawyer) is that the inside-the-beltway lawyers view the 11th argument argument as a joke and its proponents as well-meaning but ill-informed.

    Regardless of the merits, since those are the people Bullock has to convince of his case, I could easily understand why he’s steering well clear of it.

    • JC

      “inside-the-beltway lawyers”

      …where corruption reigns. Of course they’re going to say this. Its in their economic interests to do so.

      And Bullock’s invoking the 11th doesn’t limit his other avenues. It is just another one, one that many think is the only road to success.

      But when you say Bullock has to convince the “inside-the-beltway lawyers”, you are completely wrong, though. He has to convince the SCOTUS.

      What Bullock has to lose is the case. And if he does so while not putting up the best possible defense, it is going to go badly for him in the upcoming election, as others have so aptly commented on here, and elsewhere.

      • regarding losing and that “it is going to go badly.” I don’t know about that. The GOP in this state seems well in support of Western Traditions..and Citizen’s United.

        They see it as their retaliation against union money.

        Even though they got 37% of the vote for president in ’08.

  7. jack ruby

    The 11th amendment argument really has no merit thats why it wasn’t included. Other than the opinion of this one guy who is on some kind of delusional crusade writing the same articles on the internet about the 11th amendment it really doesn’t have any steam. By filing suit against Bullock himself (and not the state of montana) and seeking to enjoin him from enforcing an “unconstitutional” the law WTP effectively avoids the 11th amendment. There is always a chance i suppose that the Sup Ct could buy the argument and i dont blame you for getting caught up in it a bit after reading this guy’s over the top article but this isnt as big a deal as he is making it out to be. If you really want to delve into it and decide for yourself you could start here:

    http://www.law.cornell.edu/anncon/html/amdt11_user.html

    • That one guy on a delusional crusade won against the federal govt. and shut down NDAA.

      • jack ruby

        He sure did, although the case you refer to has nothing to do with the 11th amendment it does demonstrate he has some legal skiil. But ultimately thats like saying WTP shut down the state of montana and ‘won’ their case when they the district court judge in helena ruled in their favor way back when. There is a long way to go past one favorable lower court judge in new york with his ndaa case even though i hope he succeeds.

        My point being the 11th amendment argument holds no water in my opinion and this delusional gentleman would be considered to have a minority opinion on the subject.

        • I guess my point was that I don’t know that he’s that delusional.

          • Jack Ruby

            It was probably unnecessarily trollish for me to call him delusional.

  8. MontanaMuleGal

    Check out the excellent audio series, with Adam Furgatch and attorney Carl Mayer, on the Bullock-Citizens United issue, interviewed Peter B Collins. If you don’t know Collins, his interviews are excellent – he’s a true progressive and does not pander to the left or right, the Dems or Repubs. His is a true voice in favor of the citizens’ of the USA and the creeping police state.

    The real question — and we probably know the answer — is who got to Bullock to shut him up and shut him down on pursuing the states’ rights issue.

    http://peterbcollins.com/2012/06/25/supreme-disappointment-supreme-court-summarily-dismisses-montana-appeal-to-citizens-united/

  1. 1 The 11th Ammendment – a Double-edged sword | Intelligent Discontent

    […] amendment to the case, with some even accusing Bullock of betraying us and being some kind of Manchurian Candidate. This is foolish, for two reasons. First, the 11th Amendment doesn’t apply in this case, […]




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