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.

 

Opposing displays outside GOP convention

As Montana Republicans considered platform planks, elected delegates and speechified to loyal supporters, Bruce Russell, Sr. quietly paced back and forth outside Missoula’s Hilton Garden Inn holding a homemade sign that simply said: “Den of Thieves.”

Russell kept is vigil for nearly four hours Saturday morning, walking back and forth so he wouldn’t be ticketed by police for “loitering.”

“The party inside is responsible for the economic depression that befell this country in 2008,” Russell said.

Russell was also pretty peeved about the float parked in front of the hotel depicting the “Obama Presidential Library” as an bullet-hole-ridden outhouse known as “Out House One".”

Russell, an Army medic in Vietnam, said as a veteran he was appalled by the display.

“That makes me sick no matter who the president is,” he said.

The outhouse featured plenty of…well… let’s just say colorful “graffiti.”

Inside was a outhouse stool with a semi-circle hole with the words “Half Ass” and “Policies of the Left” written next to it and a framed Obama “birth certificate” hung above it.

A poster on the wall said “For a good time call: 1-800 Michelle Hillary Pelosi.”

An historic photograph an unidentified black man was tacked to the wall with the word “Dad” scrawled beneath it.

Here are a few more photos of the…display.

Found Ochenski: He's at the Missoulian

Where's Ochenski? 

Loyal readers of longtime Missoula Independentopinion columnist George Ochenski won't have to wait much longer to find out.

It didn't take long for the Indy's chief rival in Missoula, Lee Newspaper's Missoulian, to offer Ochenski a weekly space on their opinion pages. 

According to an email I just received from Ochenski, Missoulian editor Sherry Devlin has offered to print his column each Monday. At about 750 words, Ochenski's new space will be slightly smaller than the 1,000 words he regularly submitted to the Indy. But as Mark Twain was keenly aware when he said “I didn't have time to write a short letter, so I wrote a long one instead," longer does not necessarily mean better. 

Ochenski's column, which was the cornerstone of the Indy's weekly news coverage for some 12 years, came to an abrupt end last Thursday. Ochenski and Robert Meyerowitz, the editor who has been at the helm of the alternative newsweekly for about a year, apparently didn't agree about Meyerowitz's handing of Ochenski's columns. 

Ochenski told conservative talk-show host Aaron Flint that he was "forced out" by Meyerowitz. According to the Flint Report, Ochenski said Meyerowitz had been "wading into (Ochenski's) columns, changing headlines, and told him that he couldn't write about national or international topics."

Meyerowitz responded to Flint via email, saying:

"Wading into his columns, changing headlines"? What do you think an editor does?

Wading in? Changing headlines? We edit all the copy we publish, through several layers, and write headlines. We also maintain journalistic standards, for such things as fairness and accuracy, that apply to everything we publish; George Ochenski was no exception. I guess he didn't like that.

He hasn't been silenced. He can publish anywhere he's able, as far as I can see. And he hasn't been censored. We choose what we publish."

Evidently Ochenski has found a new home to publish where he'll be free to write his opinions his way. 

According to his email to me early this afternoon:

"Sherry Devlin, the Missoulian's editor, has given me the leeway to write what I want, will not edit the columns except for spelling, etc., and will be sticking my mug shot at the top of the column."

So, Ochenski columns live on -- they just have a new home at the Missoulian.

This will no doubt come as good news to Ochenski's loyal fans, and it will undoubtedly have some reverberations a few blocks away at the Indy office's.

As a former reporter for the Indy, I can say from personal newsroom experience that Ochenski's column was a critical part of the paper's weekly coverage and political analysis. It's no secret that Ochenski is a progressive, anti-war, environmentalist (a seemingly nice fit for a left-leaning alternative newspaper). Ergo, not everyone -- even in Missoula -- agreed with his weekly opinions. Not even close. 

But I believe his column is valued by so many readers around the state because he tells the truth, he sticks to his principles, and is rabidly non-partisan.

Take Flint Report commenter Bob "The Gas Guy" van der Valk's post last Friday:

"I do not necessarily agree with (Ochenski) about the Federal influence on energy companies using right of way to ship or transmit over or under our Big Sky Country state. For instance the Keystone XL pipeline will be a vital link to assist the US in becoming energy secure...."

But...

"...We need both sides to be represented in any future important political discussions."

Ochenski is respected beyond the reach of the Indy's dead-tree distribution because he takes Republicans and Democrats to task in his no-holds-barred opinion columns. He holds elected leaders from all parties accountable. He is sharp-tongued, quick-witted, and, thanks to decades in the trenches as an environmental lobbyist in Helena, has an uncanny ability to boil down complex issues into concise, hard-hitting opinion columns. 

Ochenski's columns certainly give certain politicians, corporations and party loyalists plenty heartburn. I'm sure there were more than a few people around the state who hoped the Indy's spiking of Ochenski's column would be the last they'd hear of him. 

Ochesnki's fans, no doubt, will be glad he's still writing...even if it is for the cross-town "mainstream" newspaper.

Where’s Ochenski?

If you pick up a copy of the Missoula Independent today there’s a story on the cover about the 55 years of collective newsroom experience recently exiting the Missoulian newsroom.

I can’t find the link to the story from today’s paper, but a recent Indy blog post pointed out the departures of longtime Missoulian reporters Michael Moore, Joe Nickell, Jamie Kelly and Chelsi Moy.

Interestingly, I can’t seem to find something else in the Indy today: I can’t seem to find a link to longtime political columnist George Ochenski’s regular weekly column.

As I do on most Thursday mornings, I logged on to the Indy today to see what insight and analysis Ochenski would have on Tuesday’s primary race results, but I can’t seem find it.

Ochenski has, as far as I know, never missed a weekly column in 11 or 12 years of writing at the Indy. He’s written over 550 columns since he started “rattling the cage” of the state’s political establishment back in 2000 or so. When I worked there, Ochenski’s column reliably arrived at the Indy newsroom offices every Tuesday morning and occupied the same page in the paper week in and week out without fail.

So where is he this week?

I find it somewhat odd that Indy deemed it newsworthy to point out on its cover the 55 years of collective newsroom experience that exited the Missoulian but didn’t bother to mention to loyal readers why it’s longtime political columnist is now absent from its own pages.

The Indy is celebrating it’s 21st anniversary this year and Ochenski has been there for more than half those writing incisive and provocative columns that took on Republicans and Democrats alike. Whether you like his opinions or hate them, they’re his opinions and there isn’t a single columnist in the state who has been writing them as long or as well as Ochenski.

A comment on a recent blog post over at 4and20 Blackbirds by longtime commenter/blogger JConrad indicates there might have been disagreements between Ochenski and the Indy’s relatively new editor, Robert Meyerowitz. I hope that trouble doesn’t mean we won’t be reading Ochenski’s column in the Indy any longer.

The perennial “robo-call”

Today as I was standing in line at my favorite lunch joint when my cell phone rang. The number that popped up was that of GOP gubernatorial candidate Ken Miller.

If you read today’s profile of Miller you might recognize the number because it is the same number Miller asked all Montanans to use to reach him on the campaign trail.

I answered the phone expecting Miller might want to chat about the recent article, but he didn’t even give me a chance to say hello. Actually, it wasn’t really Ken on the other line. It was a recorded version of Ken:

“Hi. This is Ken Miller. If you haven't heard I'm a grassroots tea party-endorsed conservative running for governor of Montana. The Miller momentum is growing like wildfire across this state and with my running mate Bill Gallagher, we are winning straw polls everywhere. You may have seen our green and blue signs in your area. I hope we can count on your vote for Miller-Gallagher by June 5th. I'd love to hear from you today. I'm Ken Miller. Feel free to call me on my personal cell 670-8318. This call is paid for by Miller for Governor box 325 Lower Montana.”

Commissioner of Political Practices Jim Murry, who on Thursday denied Miller’s request to dismiss an ethics case filed by Miller’s former chief fundraiser, said he also received Miller’s robo-call. Murry said his office has already received several complaints, which he turned over to Lewis & Clark County Attorney Leo Gallagher.

In addition to Miller, people have recently reported receiving robo-calls from Montana Conservation Voters urging recipients to vote for Democratic Attorney General candidate Pam Bucy and Democratic gubernatorial candidate and current Attorney General Steve Bullock.

It seems like I write at least one story each election cycle about candidate or campaign using robo-calls. Candidates from both parties like to complain about how their opponent’s use of robo-calls is “illegal” and “unethical.” That might be true.

But what’s also true is candidates from both major parties use them every year.

In 2008 Republicans griped that the Montana Democratic Party was using robo-calls to support Democratic Superintendent of Public Instruction candidate Denise Juneau. (sorry, the article is archived so no link).

Then-MDP spokesman Kevin O’Brien (now Bullock’s campaign spokesperson), made no apologies for the Juneau call in 2008.

"We believe that free speech is protected by the U.S. Constitution, and we are going to do everything that we can to make sure that every voter has the opportunity and ability to vote," O'Brien said Wednesday in 2008.

Last year Bullock sided with attorneys general from across the country in opposing a federal law that would have made it more difficult for states to enforce bans against robo-calls to cell phones, but he’s apparently benefitting from MCV’s during this election season.

Gallagher said his office received several robo-call complaints Thursday. Gallagher has long been sick of the calls, which he says are illegal.

“What I've done in the past is I’ve written a letter to each party and advised them that robo-calls violate 45-8-216 and I asked them to please advise anybody who asks them that they are a violation of state law and if they do it they'll be charged,” Gallagher said.

However so far no county attorney has ever brought charges against a political candidate or third-party group for making robo-calls in Montana.

So why doesn’t anyone enforce the law against robo-calls? Here’s how one long-time campaign organizer explained it to me:

“I'm told the legislative language directly contradicts 1st Amendment precedents. Nobody will bring suit or levy fines because there is too much precedent to overturn, and losing in court would effectively tell everyone it's ok to do autodials, which would remove any hesitation the legislative language might give candidates.”

For his part, Miller said he and his campaign advisors believe the calls going out this week are legal.

“We've done a lot of research on it, and it is our opinion and it is the opinion of many others” that robo-calls are legal, Miller said.

“We felt that we could be at a disadvantage to our competition if we did not use them, and we wanted to be a step above so we made sure that the caller ID has my personal cell phone number on it,” Miller said.

If you ask me, until a county attorney brings charges and the matter is settled in court once and for all, robo-calls during election season will be as perennial as daffodils, green grass, and apple blossoms blowing on a warm spring breeze…just not as pleasant.

Schweitzer in 2006: ‘I might support’ Romney presidential bid

Six years ago Gov. Brian Schweitzer raised eyebrows in Big Sky Country and beyond when he made an off-hand remark about then-governor of Massachusetts, Mitt Romney.

The Montana governor — who touched off a firestorm of controversy last week when he told a reporter for The Daily Beast that the presumptive GOP presidential nominee might have some trouble with voters because his father was “born on a polygamy commune in Mexico” — didn't use the words "polygamy" or "Mormon" in that interview.

It wasn't even a perceived jab Romney that caught the attention of bloggers and political wonks. In fact it was quite the opposite.

In an Oct. 8, 2006 New York Times profile of Schweitzer, then a rising-star in the Democratic Party, the bombastic Montana governor told Times reporter Mark Sundeen he would consider voting for Romney for president.

Earlier that year Schweitzer, Romney and Missouri Gov. Matt Blunt were part of delegation of governors visiting troops serving in the Middle East as part of "Operation Enduring Freedom."

Schweitzer said he spent a lot of time with Romney on that trip and found him to be a "good guy."

"We talked about all kinds of things, business, family, government, taxes," Schweitzer said.

Schweitzer told Sundeen he supported John McCain's presidential bid in 2000 but soured on McCain because of the way he courted the religious right. Schweitzer went on to say he was intrigued by a possible presidential run by Romney, then the Republican governor of Massachusetts, in 2008.

"If he gets the nomination, I might support him,'" Schweitzer told the Times.

That perceived endorsement of a Republican raise a few Democratic hackles.

A blogger on the national Liberal blog The Daily Kos said he was "appalled" by Schweitzer's comment, writing, "If he keeps saying stuff like this his future in Democratic politics is over."

Closer to home Helena Democratic blogger and one-time Schweitzer primary challenger Don Pogreba wrote: "I know that Schweitzer wants to cultivate an image of independence … but Mitt Romney?"

Romney himself added fuel to the budding gubernatorial  "bromance" in June 2007 when he told a roomful of reporters gathered at the Montana GOP annual convention in Helena: “If any of you see your governor, give him my best. He's a great guy."

Cascade County GOP delegate James Drew, upon hearing the GOP-hopeful's comment about Schweitzer, dropped his support for Romney.

"He said that?” Drew asked me when I was reporter for the Missoula Independent. “Well, he just lost my vote.”

So does Schweitzer — who said in 2006 he'd consider supporting Romney for president — plan to back the Republican in 2012?

Not likely.

"I've watched an evolution in his politics since we traveled together," Schweitzer said in a recent interview. "He's taken a right turn on immigration policy and his recent comments about military expansionism are concerning. I've got concerns about his policies."

Schweitzer said he still thinks Romney is a "good man."

"I haven't met his family, but he's a good family man and he's a warm and good communicator," Schweitzer said. "I just don't really share his vision for the future of America's economic policy."