Reporter’s Notebook: Observations on Gov. Bullock’s first big speech

Wednesday night’s State of the State address was an interesting evening at the Capitol. It was the first time since I began covering Montana politics that a governor other than Brian Schweitzer was on the big stage, and I wasn’t sure what to expect.

The State of the State is a major event for a Montana governor. The address is broadcast live statewide on Montana PBS and Montana Public Radio, and just about every TV station, radio station and newspaper in the state covers the event.

Many of us in the Capitol press corps admitted prior to the speech we were unsure of how Bullock would do in his first-ever State of the State. After all, he’s following in the footsteps of one of the best orators many of us have ever seen in Montana. Former Gov. Brian Schweitzer wasn’t popular with everyone – particularly Republicans, whom Schweitzer needled at every turn – but at the end of the day nobody could argue the man’s ability to work a crowd.

Bullock brings a much different style to the governor’s office. As he pointed out in his speech, just three weeks in to his term as governor he’s “already been trying to change the tone in the halls of this building.”

While he didn’t mention Schweitzer by name, Bullock’s message on that point was clear: “I’m not Brian Schweitzer.”

The consensus among most people I talked to after the speech was that Bullock did a great job. It was a strong speech and it was masterfully delivered. Even many Republicans said they liked the speech, though they didn’t like all the spending proposals Bullock rolled out.

My first thought after he finished the address was this:

“This guy showed us tonight he is the governor.”

Observations from the floor

The press corps is mostly relegated to the east side of the House floor during speeches like this, which means we’re stationed along the GOP’s side of the aisle. That’s always an interesting place to be during a speech delivered by a Democrat. When the big applause lines come, we all watch to see which Republicans clap or stand and which Republicans keep their arms crossed tightly over their chests.

I paid keen attention to a standing ovation that came when Bullock blasted the rise of dark money groups that “target candidates and refuse to tell the voting public who they really are and what they really represent.”

“They hide behind made-up names and made-up newspapers. They operate out of P.O. Boxes or Washington, D.C. office buildings. They falsely proclaim themselves the guardians of Montana’s traditions.

These groups believe they can violate our laws and corrupt our government in order to create a system that benefits their special interests.

Montanans deserve better.”

At that point the House floor erupted with the cheers and applause from Democrats and a handful of enthusiastic Republicans.  Without having a clear view of the entire floor I can’t say for certain which Republicans stood  and cheered and which ones sat on their hands, but it was a moment many of us talked about after the speech. If anyone can produce video of that particular applause line that shows the entire House floor it would certainly been an interesting study.

Another point that stood out to me was when Bullock talked about returning from the airport after having greeted troops returning from Iraq and Afghanistan to find out a Legislative committee had cut funding for “wrap-around” services that would make it easier for returning soldiers to attend universities.

“I urge you to restore these funds, live up to the promises we’ve made and welcome these warriors home with more than just words,” Bullock said.

At that point Democrats jumped to their feet and most of the Republican side of the aisle joined them. However, in front of me one Republican Senator remained firmly planted in her seat, not clapping. As another Senator looked over at her and said something she shook her head and said, “I’m not clapping for that.”

All-in-all Bullock did a good job of defining his policy agenda and laying down markers for the next three months of the Legislative session. He’s going to push for more spending on education. He wants a fix to the state pension system that “honors the commitment to Montana’s public servants.” He’s going to continue to push for his proposed $400 homeowner tax rebate. He wants to expand Medicaid. And he wants campaign finance reform that gets dark money out of politics.

How much of that agenda he will get accomplished remains to be seen as the Republican-dominated Legislature continues to chip away at spending proposals and bring their own policy agendas to bear on the state budget, namely, reducing Montana’s reliance on federal dollars.

Bullock, however, seemed sincere in his desire and willingness to work with GOP lawmakers going forward.

“We need each other if we’re going to make progress,” Bullock told members of the House and Senate.

The only words that rang truer were Bullock’s closing thoughts:

“At the end of any one of our terms. . . yours or mine. . . we will be measured by the progress we have made. And the true measure will be taken not by the politicians or pundits, but by our children. Let us not forget that it is to them we are most accountable.”

Critics question Bullock's strategy in Citizens United challenge

Editor’s note: For those who are interested in reading more about this case I included the complete text from today’s story in the Great Falls Tribune with links to relevant source material.

Is Montana Attorney General Steve Bullock ignoring the best possible challenge to the U.S. Supreme Court's Citizens United ruling?

That's the question being raised by a growing chorus of activists and legal bloggers who claim the key to overturning the high court's polarizing landmark ruling - which allows corporations to donate unlimited amounts of money to political campaigns - lies in the 11th Amendment to the U.S. Constitution.

According to the legal theory proffered by Hawaii-based The Eleventh Amendment Movement and Essential Information, a nonprofit citizen action group founded by Ralph Nadar, the 11th Amendment bars federal courts from hearing lawsuits brought by private parties against states.

The groups argue the Supreme Court should not even consider the lawsuit challenging Montana's 100-year-old Corrupt Practices Act, American Tradition Partnership v. Attorney General.

Attorneys for the state say they're following the best course of action to defend Montana's campaign finance law, and one legal scholar called arguments in support of 11th Amendment jurisdictional claims "frivolous."

Supporters of the legal strategy say Montana has the best chance to deal a potentially lethal blow to the controversial Citizens United ruling but Bullock, the Democratic nominee for Montana governor, is refusing to take the best shot.

Part of their argument centers on the fact that lawyers for ATP made a technical error when they named Bullock, in his official capacity as the state's attorney general, as a defendant.

Supporters of the 11th Amendment argument say Bullock should seize on that technical error and try to convince the Supreme Court to toss the case, even if that means avoiding the chance to argue the merits of the case.

"Montana has chosen to carry the banner of campaign finance reform for the whole country, and this case could well determine whether Citizens United applies to every state in the union," said TEAM attorney Carl Mayer.

Mayer is an attorney who filed one of two amicus,or "friend-of-the-court," briefs to the Supreme Court arguing that ATP's attempt to overturn Montana's campaign finance law should be rejected on 11th Amendment jurisdictional grounds.

"You have a conservative five-person majority on the court, and they all have embraced the 11th Amendment and state's rights arguments in other contexts," Mayer said. "For an attorney at any level to not raise a jurisdictional issue, especially in a case like this, is a serious litigation error."

Bullock's spokesman, John Doran, said the legal briefs filed by Montana are supported by some of the brightest legal minds in the country.

"Twenty-two states and the District of Columbia, as well as Sens. Sheldon Whitehouse, D-R.I., and John McCain, R-Ariz., agree with Montana's position," Doran said. "Our briefs focus on what this case is actually about: money in state politics and whether the court opened the floodgates of corruption in the states when it decided Citizens United."

On Thursday, the nine Supreme Court justices were scheduled to meet in conference to give final consideration to the case after delaying a decision last week.

According to TEAM founder Adam Furgatch, the high court has three main options:

» It could accept the case and schedule a hearing for oral arguments;

» It could accept the case and summarily reverse the Montana Supreme Court's decision, or;

» It could reject the case and thus effectively uphold the Montana Supreme Court's decision.

Furgatch said Bullock still has time to raise the 11th Amendment issue before the Supreme Court announces its decision on whether to accept or deny the case, which could come as early as Monday.

According to Furgatch, if Bullock files a one-page motion between now and then asking the high court to dismiss the case for lack of jurisdiction based on the 11th Amendment claims, then it would be difficult for the justices to accept and then summarily dismiss the case without first considering the 11th Amendment jurisdictional claims.

"There hasn't been one single legal commentator or law professor who has been able to find fault with the 11th Amendment argument," Furgatch said.

On Thursday, one such law professor did step forward to dismiss Furgatch and Mayer's arguments.

William "Bill" Marshall is the Kenan professor of law at the University of North Carolina. Marshall also served as deputy White House counsel and deputy assistant to the president of the United States during the Clinton administration.

Marshall said the 11th Amendment claims laid out in the amicus briefs "border on the frivolous" and defended Bullock's decision to not raise the issue before the high court.

"If the Supreme Court did not have jurisdiction over cases like this one, it would seriously cut back on the ability of the Supreme Court to exercise jurisdiction over constitutional rights in cases going back, literally, 100 years," Marshall said. "There's no doubt the U.S. Supreme Court has jurisdiction over federal issues.

Mayer and Furgatch said Montana Assistant Attorney General James "Jim" Molloy acknowledged Bullock's office considered the 11th Amendment argument, but the state's attorneys are reluctant to raise the issue.

In a June 6 email to Furgatch and Mayer, Molloy wrote that the Attorney General's office considered TEAM's arguments and theories "with respect to the issues presented in this case, as well as with respect to the potential implications in other contexts, if (TEAM's) theories were adopted."

Furgatch and Mayer contend that Molloy's email appears to acknowledge the 11th Amendment argument is strong enough to win.

"They have a fear that it's a good argument and it could win but they are afraid of potential implications in other contexts, but they don't say what those are," Furgatch said.

Molloy elaborated on the state's position in an interview Thursday.

"The 11th Amendment argument extended to its logical conclusion would mean the U.S. Supreme Court has no authority if a state supreme court were to ignore a Supreme Court ruling," Molloy said. "That's not a position the state of Montana believes in and it is not one we chose to advocate for."

Molloy pointed out TEAM's 11th Amendment argument is already before the court in the form of the two amicus briefs, and he said the justices are free to consider those arguments without the state having to make them.

"We presented it to leading constitutional lawyers around the country. We evaluated it and no one felt it was a wise or meritorious approach to take in this case," Molloy said. Doran said the amicus briefs filed by TEAM and Essential Information do not directly address Citizens United, but instead rely on a "questionable legal theory" that would "basically allow states to avoid following the U.S. Constitution."

"Attorney General Bullock will not be distracted from the real issues presented in this case. He will keep his eye on the ball and continue to fight for clean and fair elections in Montana and across the nation," Doran said.

"All questions before the Supreme Court are questionable before the court rules," TEAM responded in a statement late Thursday. "In this case, where four justices are already opposed to Citizens United on the merits, only one justice needs to be persuaded by our side of the question to make this the winning argument."

The TEAM statement went on to say that contrary to Doran's response, the 11th Amendment argument "allows the precise application of the Constitution's 11th Amendment principles to win the case."

Update: Earlier in the post I linked to David Ziff’s blog. Ziff pointed out that he is not a supporter of the 11th Amendment argument, and in fact has argued against the strategy:

“…I  certainly do not think the 11th Amendment is the key to anything. I think it's a loser argument and (this is sort of the main thrust of my posts) even if the argument wins, it still achieves nothing for folks who want to change Citizens United.”

I apologize for the confusion. Ziff’s blog was one of dozens I read yesterday and I mixed them up when I posted the link.