A past and future of judicial elections: the case of Montana.

• Author: Johnstone, Anthony
• Position: Continuation of IV. A Judicial Election in the Aftermath of Citizens United: Partisanship, Outside Organizations, and Dark Money A. The Setting through VI. Conclusion, with footnotes, p. 88-131

Sounding a broader theme of the state's vulnerability due to its relatively low-cost elections and high-value resources, the Court also noted that "the total expenditure for media advertising was about $60,000" in the last race for chief justice, compared to corporations' capacity to spend millions. (236) Finally, the court turned to former Justice Sandra Day O'Connor's then-recent statement that a "crisis of confidence in the impartiality of the judiciary is real and growing," in large part because of "the extraordinary spending power of 'super spender groups,' which are mostly corporate funded." (237)

Even the two dissenting justices only reluctantly conceded that Citizens United was controlling. Justice Beth Baker sought a saving construction of the Montana law "to preserve what remains of its constitutionality and to further the legislature's underlying intent to prevent corruption." (238) Justice James C. Nelson, noting that he "never had to write a more frustrating dissent," expressed his disapproval of Citizens United at length while nonetheless acknowledging "the applicability of a controlling precedent with which I profoundly disagree." (239) Justice Nelson doubted that "the Supreme Court will allow a state to single out corporations as a group and prohibit them from speaking in judicial elections," even as he noted that he "share[d] some of the ... concerns" (240) raised by the Western Tradition majority.

The nation took notice of the Montana Supreme Court's ruling. (241) The Supreme Court also took notice, staying the state court decision pending the filing of a petition for certiorari. (242) In an unusual statement concurring in the stay, Justice Ginsburg, joined by Justice Breyer, sounded agreement with the Montana court that "Montana's experience, and experience elsewhere," warranted reconsideration of Citizens United. (243) Less than six months later, however, the Supreme Court issued an extraordinary summary reversal of the Montana court's decision. (244) With a curt citation to the Supremacy Clause the Court held that "[t]here can be no serious doubt" that "the holding of Citizens United applies to the Montana state law." (245) Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, voted to deny the petition, asserting that "this Court's legal conclusion should not bar the Montana Supreme Court's finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana." (246)

As in Citizens United, the Supreme Court's one-paragraph opinion in American Tradition did not address judicial elections even though the State of Montana and several amici, like the Montana Supreme Court itself, highlighted the consequences of unlimited corporate and union campaign expenditures for the selection of judges and justices in most states. (247) Judicial elections, Montana argued, were "wholly unexamined in Citizens United," and "[n]ot even Petitioners claim a right to influence judicial campaigns through corporate expenditures, yet their arguments sweep broadly enough to undermine the integrity of the judicial system as much as the political system." (248) Eight of the eleven then-living retired justices of the Montana Supreme Court argued that "[e]ormous special interest expenditures in state judicial elections are threatening one of the Constitution's most central guarantees--the right to due process and a fair trial." (249)

Beyond Montana, constitutional scholars noted that "[i]t is difficult to imagine that the Court intended to foreclose evaluation of whether judicial elections present compelling government interests in a case that did not involve judicial elections." (250) Twenty-two states and the District of Columbia argued that state judges, unlike the presidential and congressional candidates who were the subject of the campaigns at issue in Citizens United, "are not 'representatives' with offices open to the public, and outside influence by major campaign spenders is not recognized as a legitimate factor in judicial decision-making." (251) The Court did not engage these arguments about the implications of Citizens United for judicial elections, but instead noted generally that "Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." (252)

American Tradition blazed a trail for other challenges following the reasoning of Citizens United. (253) Having learned from the Montana Supreme Court a lesson about challenging election laws before state judges with first-hand experience of elections, litigants turned to the more favorable forum of appointed judges in the federal courts. One of the first laws to fall after the 1912 Corrupt Practices Act was Montana's 1935 non-partisan judicial election law, which made it unlawful for a political party to "endorse, contribute to, or make an expenditure to support or oppose a judicial candidate." (254) In a challenge brought by a county Republican Committee, the Ninth Circuit preliminarily enjoined enforcement of the law. (255) Relying on Citizens United, the court applied strict scrutiny to the speaker-based restriction, (256) and held that the law was likely to fail the narrow-tailoring requirement. Its ban on partisan endorsements was overbroad because

[i]f Montana were concerned that party endorsements might undermine elected judges' independence, Montana could appoint its judges, with a bipartisan and expert panel making nominations--a less restrictive alternative currently practiced by several states. (257) The partisan-endorsement ban also was under-inclusive because "it forbids judicial endorsements by political parties but not by other associations, individuals, corporations, special interest groups, and the like." (258) The court concluded that "Montana must be enjoined forthwith from enforcing [the statute] or otherwise interfering with a political party's right to endorse judicial candidates and to expend monies to publicize such endorsements." (259) Thus, Montana's judicial elections not only had to be political, they had to be partisan too.

Judge Mary Schroeder dissented from what she noted was the first case "to hold that even though a state has chosen a nonpartisan judicial selection process, political parties have a right to endorse candidates." (260) The result, she wrote, was that "parties can work to secure judges' commitments to the parties' agendas in contravention of the non-partisan goal the state has chosen for its selection process." (261) Partisan influence, Judge Schroeder explained, is "particularly pernicious because parties serve as 'natural bundling agents that coordinate sprawling political coalitions across all types of policy domains and venues,"' (262) and their power to make unlimited independent expenditures for or against judicial candidates under Citizens United "threatens to further erode state judges' ability to act independently and impartially." (263) In early 2014, the Supreme Court denied Montana's petition for certiorari, (264) declining another opportunity to address judicial elections after Citizens United. Like the Supreme Court's breach of the 100-year-old Corrupt Practices Act, this decision would lead within a matter of months to a flood of new money into Montana elections.

2. The Candidates and Issues

   The 2014 campaign of Mike Wheat and Lawrence VanDyke produced a contest between two lawyers who were bom elsewhere but quickly moved to southwestern Montana. There the similarities ended. Wheat returned home after service as a marine in Vietnam for law school at the University of Montana and a short stint as a state prosecutor. VanDyke left Montana for Harvard Law School and a clerkship on the D.C. Circuit. Wheat had been a plaintiffs attorney in Montana trial courts for three decades. VanDyke was in his first decade of practice, having started as an appellate attorney at a national firm. Wheat eventually entered politics as an elected Democratic state senator and later lost a campaign for state attorney general. VanDyke never served in elective office, but was attracted to the high-profile legal docket of the Republican Texas Attorney General's office before landing an appointed position under the newly elected Republican Montana Attorney General. These biographical differences would become the foundation of the core political differences in the campaign.

   1. Mike Wheat

      Mike Wheat was born in Spokane, Washington in 1947, and moved to Montana in 1948. (265) He graduated from the University of Montana School of Law, after which he served as a deputy county attorney in Butte-Silver Bow County, Montana, for three years. (266) For nearly three decades he practiced "plaintiff-oriented and appellate litigation, with an emphasis on personal injury, product liability and insurance-related claims," in a firm he founded with a law-school classmate in Bozeman, Montana. (267) From 2003 to 2007 he served one four-year term in the Montana Senate as a Democrat, chairing the Senate Judiciary Committee in 20 05. (268) In 2008 he ran unsuccessfully in the Democratic primary for state attorney general. (269) Wheat was one of eleven applicants to fill the associate justice seat opened by the retirement of Justice John Warner, and one of three finalists to emerge as a nominee from the state Judicial Nomination Commission process. (270) Governor Brian Schweitzer, a Democrat, appointed Wheat to fill the remainder of Justice Warner's eight-year term ending in 2014, subject to an initial election in 2010.271 In a 2010 uncontested retention election, voters retained Justice Wheat with seventy-eight percent of the vote. (272)

      In his 2014 campaign for a new term, Wheat ran on "four decades of legal and public service experience," as well as his time on the Montana Supreme Court. (273) He argued that "the rights afforded to us by the...