Montana Judicial Race JoinsBig-MoneyFray
bySHAILADEWAN
NOVEMBER 2, 2014
HELENA, Mont. — In a coffee shop on Last Chance Gulch, a woman approached Mike Wheat to say she was planning to knock on doors for him. “It’s getting pretty brutal out there,” she said.
Mr. Wheat, a State Supreme Court justice running in the most expensive judicial race on record in Montana, nodded. In a parade of menacing television ads paid for by conservative groups, he has been attacked for “a history of supporting extreme partisan measures” (voting to raise fees on hunting licenses), and for allowing convicted criminals to use legal “loopholes” to go free. On the other side, unions and trial lawyers have accused his opponent, Lawrence VanDyke, of being “in the pocket” of out-of-state “special interests.”
When Justice Wheat, 66, decided to run for another eight-year term on the court, he said, “I never really anticipated that I would end up with a race like this. I never thought it would turn into this gigantic money battle.”
But judicial races have been evolving into another political battleground for big money. A last-minute surge of spending brought the total spent on television commercials to $12.1 million in 10 states, according to two groups that track judicial campaign spending. This election cycle, the spending race has been fueled by theRepublican State Leadership Committee, which pledged to spend $5 million on a “judicial fairness initiative,” and contributed $400,000 in North Carolina last week.
In the one election that has already taken place, in August, conservative efforts were unsuccessful. Despite spending more than $500,000 to unseat three justices, Tennessee voters retained them.
In Montana, independent conservative groups have spent about $640,000 — $469,000 by a political action committee financed by the Republican State Leadership Committee and $170,000 by Americans for Prosperity, the conservative group backed by the brothers David H. and Charles G. Koch, according to figures provided by theBrennan Center for Justicein New York andAmericans for Prosperity.
In response, a political action committee financed largely by Montana trial lawyers and unions has spent $475,000. The money dwarfs what the candidates have raised under Montana’s strict individual contribution limit of $320: $132,000 for Mr. VanDyke and $143,000 for Justice Wheat, according to the most recent campaign filings.
“It’s becoming one more log on the fire of the growth in big-money pressure politics,” said Bert Brandenburg, the executive director ofJustice at Stake, which advocates judicial election reform. “What’s different is, of course, we want judges to be different. We pay legislators to make a promise and keep a promise; we pay judges to decide a case one at a time and ignore outside pressure. If money affects a legislator’s vote, it stinks. If money affects a judge’s decision, you’ve just violated the Constitution.”
Justice Wheat, a trial lawyer, grew up in Montana, served in the Marine Corps in Vietnam and began practicing law in 1978. He was elected to the State Legislature as a Democrat and ran unsuccessfully for attorney general before being appointed to the Supreme Court, the state’s highest court, in 2010 by a Democratic governor. The next election he was subjected, as all appointed justices are, to a retention vote, and won.
He has participated inhundreds of cases, voting to require a wealthy landowner to allow access to a public waterways and to allow same-sex couples to receive benefits, and dissenting from the court when it allowed new gas wells to be drilled — because, he said, the required environmental impact studies had not been conducted. In criminal cases, he has sided with both the accused and the prosecution. He is friendly to plaintiffs and trial lawyers, voting to allow a bat manufacturer to be held liable for the death of a teenager hit in the head by a baseball, and dissenting in a case in which the court denied a $1.2 million fee arrangement for lawyers.
Nonetheless, he has been endorsed by former justices and Republican officeholders, who say they resent out-of-state interference and what they view as an injection of partisanship.
“To take a little sliver of my record and bend it to a political message that they’re trying to get across, it’s wrong, it’s disingenuous and it’s misleading to the voters,” Justice Wheat said.
His challenger, Mr. VanDyke, 41, grew up in Montana and worked for his father’s construction company, earning an engineering degree before winning a scholarship to Harvard Law School. As an editor on the Law Review, he defended a book that argued that it was constitutional to teach intelligent design in public school. After graduating, he worked in Washington and Dallas for Gibson, Dunn & Crutcher, the large corporate law firm that has given rise to prominent conservatives like Kenneth Starr.
He came back to Montana when Tim Fox, a Republican, was elected attorney general in 2012 and appointed Mr. VanDyke to the post of solicitor general. There, Mr. VanDyke placed a special emphasis on writing amicus briefs supporting gun rights and anti-abortion laws. Inone briefhe wrote with Mr. Fox, they argued that Roe v. Wade, the Supreme Court decision preserving a woman’s right to an abortion, should be reconsidered in the light of “recent, compelling evidence of fetal pain.” But he quit in May after conflicts with colleagues.
Asked about critics who say he has tried to hide the extent of his conservatism from voters, he said, “I am running on the platform that I am going to follow the law regardless of my personal preferences.”
Corporate interests, who say they are trying to preserve jobs and create growth, and trial lawyers, who say they represent the voiceless against the wealthy and powerful, have long gone head to head in judicial elections. As in any arms race, both sides say they are just trying to defend against the other.
“Right-of-center interests have been long outspent by left-of-center interests on judicial races,” said Matt Walter, the executive director of the Republican State Leadership Committee. “So we feel like we’ve provided some measure of balance for voters to make an educated choice.”
Alicia Bannon, a lawyer at the Brennan Center, said there have been some races where business groups have been vastly outspent. But “nationally,” she continued, “conservatives have been the bigger spenders.” According to her analysis: “Among the top 10 spenders on Supreme Court races from 2000 to 2009, 69 percent of spending came from business interests and conservative groups. In 2009 to 2010, the figure was 70 percent. In 2011-12, things were more evenly divided: Among the top 10 spenders in 2011-12, 52 percent of spending came from business interests and conservative groups.”
Mr. VanDyke said courts in Montana had long been controlled by trial lawyers who funded election campaigns in a “pay-to-play” scheme, pointing to a 2004 race in which the Montana Trial Lawyers Association contributed $326,000 to retain a justice, James C. Nelson.
“There is no way that I could have a chance against the trial lawyer money machine without independent expenditures coming in and helping me,” Mr. VanDyke said.
Al Smith, the executive director of the trial lawyers group, said lawyers were trying to ensure that candidates were credible and had experience with Montana law. In 2004, he said, the challenger was inexperienced and the group anticipated a large amount of spending from the U.S. Chamber of Commerce that never materialized.
“In 2006, 2008, ’10, ’12, we didn’t spend anything — nothing, zero,” he said. “The idea that we’ve been spending all this money for decades is absolutely false.”