HELENA — Political observers say there’s been a trend toward more interest – and more spending – in races for seats on the Montana Supreme Court, and that’s continuing this year.
“There's been more politicization of Supreme Court races the past 10 or 15 years, particularly as outside interest groups are taking more of an interest and spend significantly more money on the Montana races,” said Jeremy Johnson, an associate professor and chair of Carroll College’s political science department. “They start looking a little bit more like traditional political campaigns, even though they're nonpartisan races.”
Last month, Johnson hosted all four of the candidates running for the Supreme Court this year in a forum at Carroll.
This is the first time in more than 20 years that Montana voters will elect two members of the seven-member court without an incumbent on the ballot, and each of the candidates told MTN they believe that’s one of the reasons for greater interest in the races.
Broadwater County Attorney Cory Swanson and former federal magistrate judge Jerry Lynch are running to become chief justice, while district court judges Katherine Bidegaray of Sidney and Dan Wilson of Flathead County are seeking an associate justice position.
As of last month, each of the candidates had raised hundreds of thousands of dollars directly through their campaigns: Bidegaray around $441,000, Lynch just over $432,000, Swanson nearly $350,000 and Wilson more than $313,000. However, even more spending is coming from outside groups.
While the four candidates are all running independently, the external ads have reinforced a perception that they are in two separate camps.
“Certainly all the interest groups have embraced either one group of two or the other side of two candidates,” said Johnson. “There's not a crossover among those four candidates; there's a pair of more liberal candidates and a pair of more conservative candidates – and that is also clear from the advertising.”
Lynch and Bidegaray have both talked about defending the judiciary against what they call politically motivated attacks, and about the importance of the rights guaranteed by the Montana Constitution. A pair of political committees with links to the Montana Trial Lawyers Association has reported around $1 million in independent expenditures supporting Lynch and Bidegaray. Other flyers supporting them came from groups like the Montana Federation of Public Employees and Wild Montana Voter Fund.
The ACLU of Montana and the national ACLU also announced they’d invest $1.3 million in Montana’s Supreme Court races. They are not officially endorsing candidates, but their ads say Lynch and Bidegaray would “protect abortion rights.”
“I would say this: Do I like the amount of expenditures? Not necessarily,” Lynch told MTN. “But at the same time, if it's informative – and what I mean by that, if the ads are truthful – then that helps the citizens decide who they should vote for. What I do not like, and I just won't tolerate, is false advertising. I have said in various forums that if, if there's an independent expenditure that is false – and I mean false – then I think the candidates should stand up and say ‘That is false.’”
Lynch said he specifically objected to claims that his appointment to the magistrate judge position was based on cronyism, since the evaluation for the position was based on merit.
Bidegaray said most of the people she heard from were unhappy with politicization in these races.
“There are rules that prohibit me from interacting really with any of these groups that are sending out flyers supporting me; my opponent is in the same position,” she said. “I can't control what these other groups are saying, what they put out in the form of media. I myself am launching a campaign with the funds that I've been graciously lucky to have, that have been contributed mostly by regular Montanans, and I'm going to use that in a positive way to continue to carry out my message.”
Swanson and Wilson have both talked about voters being concerned about impartiality on the courts, about judges needing to stay in their proper role, and about their belief the judiciary can do more to cool tensions with other branches of government. Ads supporting them have come from conservative groups, like the committee Leadership in Action PAC.
Many flyers touting Swanson and Wilson have also come from the Montana Republican Party’s State Central Committee – though Swanson went on social media to say he didn’t accept or solicit a party’s endorsement for what is a nonpartisan race.
“There's been a lot of money in the court races every year, at least since I started paying attention in 2000,” Swanson told MTN. “I do think generally that the preponderance of the money has been for the more liberal candidate – if you go back and look objectively over many different election cycles, you'll find that that's the case. If people are freaking out now, are complaining because there are conservative groups that are getting into the ball game and are trying to even reach parity – I don't even think they're going to reach parity with the liberal groups – I don't see that as doom and gloom. I see that as people realizing that there's been one side of a conversation that's been well funded. If the other side is going to be well funded, great.”
Swanson said he felt some of the outside groups in these races were essentially asking candidates to promise how they’d rule in future cases, which he said would be inappropriate.
Wilson said he’s trying to make sure his own campaign stays positive, but that the role of external groups can’t be ignored.
“So much of being a lawyer or a judge is accepting the things that you cannot change, understanding that certain forces are bigger than you are and larger than you can realistically influence,” he said. “The amount of money that my campaign raises and spends in this entire race is going to be dwarfed by the amount of money that's going to be spent by outside groups, and that's simply a reality that I can't change. So I don't spend time dwelling on how I feel about it, what I believe is appropriate about it – it's just the way things are.”
While advertisers have tied Lynch and Bidegaray together and Swanson and Wilson together, the June primary results showed many voters weren’t seeing them as joint ticket. Swanson received almost 23,000 more votes than Lynch, while Bidegaray received almost 37,000 more than Wilson.
Jeremy Johnson said it’s hard to predict whether that pattern will hold into the general election.
“It'll be interesting to see, after all that spending, whether we do see the liberal candidates and conservative candidates having relatively similar vote totals or whether they will continue to be quite split,” he said. “How much does advertising matter?”
The winning candidates will have an impact on the Supreme Court for a long time to come. Each will serve an eight-year term.
