A political action committee funded by corporate interests from outside Montana is trying to shift the balance of the Montana Supreme Court. The goal is to drive an agenda that endangers the property rights of local citizens, and their ability to control oil and gas drilling in their towns and counties.

This blog focuses on issues related to oil and gas drilling along the Beartooth Front. I try to stay out of election campaigns because I believe that the issues that readers of the blog care about — developing policies to make sure that drilling happens on terms acceptable to local citizens — appeal to voters of all parties across the political spectrum.

That said, there is a new development in a statewide nonpartisan Supreme Court race that could directly affect the future of oil exploration in the state, and it’s something that should outrage anyone who believes that Montanans, not multi-national corporations, should control Montana’s future.

Montana’s Supreme Court justices. Mike Wheat is on the right. Click to enlarge.

The election pits incumbent Justice Mike Wheat against Montana newcomer and former State Solicitor General Lawrence VanDyke.

The disturbing development is that a political action committee from Washington, DC is using corporate money raised outside Montana to turn this into a campaign designed to drive a clear partisan agenda.

Mike Wheat. Click to enlarge.

Wheat vs. VanDyke
In a traditional nonpartisan judicial race, it is hard to imagine Mike Wheat being defeated. He is a nonpartisan judge with an impeccable record. He served with distinction as a Marine in Vietnam, earning a Purple Heart. He graduated from Montana State University in 1975 before graduating from the University of Montana Law School in 1978. He has practiced law for over 30 years in the state, three of those as a criminal prosecutor in Butte-Silver Bow. He was appointed to the Supreme Court by Governor Schweitzer nearly five years ago, and was  elected in 2010. His opinions do not follow party lines, and he has taken a measured view in supporting the environment laws set out in Montana’s statutes and Constitution.

Lawrence VanDyke. Photo Credit: Larry Mayer, Billings Gazette. Click to enlarge.

VanDyke has a very different profile. He graduated from Harvard Law School in 2005, and has practiced law in Montana for less than two years. He has no experience as a prosecutor. He has no judicial experience, and no known courtroom experience. His career in Washington, DC and Texas has involved representing multi-national corporations.

VanDyke’s public remarks reveal a clearly partisan agenda. According to the web site Right Wing Watch, “in public statements, VanDyke has indicated that he would have sided with the U.S. Supreme Court on Citizens United, defending the decision in a debate last month. And although his race is officially nonpartisan, VanDyke has made it very clear which side of the aisle he falls on, accusing his opponent of judging ‘like a liberal Democrat’ and being ‘results-oriented’ in his rulings — a loaded accusation favored by conservative activists.”

In a recent interview with the Great Falls Tribune, VanDyke was asked about independent spending in Court races. He “argued there is a benefit to dark money spending in judicial elections.”

You can learn a great deal about a candidate from the people who know him personally. In an email forwarded to me, a Montanan who worked with Mr. Van Dyke in the Attorney General’s office has this to say about his personal experience with the candidate:

Montana’s Supreme Court elections have been non-partisan for nearly 80 years, and for good reason.   A Montana Supreme Court justice has a very important job, and candidates should be judged on their own qualifications, not by whether they are Democrats or Republicans.  VanDyke, however,  insists on turning the Supreme Court election into a partisan race, as demonstrated by his campaign website. You can hear VanDyke’s partisan attacking approach at a candidate forum held in Missoula last month.

VanDyke came back to Montana from Texas in order to work for Attorney General Tim Fox in early 2013.  Few people in Montana know much about VanDyke.  He resigned from his position in the Attorney General’s office in January 2014, and has not worked there for months (even though his website still characterizes Attorney General Tim Fox as his “boss”).   I worked with VanDyke for over a year, and had the opportunity to see him in action.  He has little experience with the Montana legal system, and showed little interest developing a working knowledge of how to practice in our courts.  It is my opinion that VanDyke lacks the maturity and work ethic we should expect of someone aspiring to be a Supreme Court justice.

In a recent Great Falls Tribune article, the Director for the Center for Law, Philosophy, and Human Values at the University of Chicago Law School, Brian Leiter, recalled his experiences with Mr. VanDyke several years ago on the issue of a book review written by VanDyke about “intelligent design.” Professor Leiter believes Mr. VanDyke’s writing on the topic was “intellectually dishonest” and notes:  “Are his religious commitments so strong that it’s going to lead him to ignore the law when they conflict? In that book review, he ignored the science, he ignored the philosophy and he ignored the logic. That would be bad news if he does the same thing as a judge.”

I believe everyone should be free to practice their chosen religion and I admire persons of faith.  Judges, however, should only be concerned with the law.  Based upon my recent experiences with VanDyke, I share Professor Leiter’s concerns — especially with respect to Montana’s election laws.  For example, based upon freedom of religion under the First Amendment, VanDyke has told me he does not believe Montana should be able to regulate speech by religious organizations in our elections.   It would not be difficult for “dark money” interests to use religious organizations as a front to avoid regulation or disclosure.  I am concerned that VanDyke will not cast aside his personal beliefs on these sorts of issues if elected to the bench….

My conversations with VanDyke lead me to believe that he does not support many (if any) of our important election laws, including  Montana’s attempts to require disclosure of those behind “dark money” and their activities in Montana elections.

What this has to do with oil drilling along the Beartooth Front
If you’ve been following this blog, you know that Energy Corporation of America and its attorney Mike Dockery have begun to challenge the fundamental right of citizens to legally protect their property through the process of citizen initiated zoning.

Click to view full letter

In a letter written to the Carbon County Commissioners, Dockery has claimed, among other things, that mineral rights owners are proper petitioners for a citizen initiated zone, that citizens have no right to supercede the authority of the Montana Board of Oil and Gas Conservation, and that a zone is an “unlawful taking” of mineral rights. You can read the full letter by clicking on the photo at the right.

It is possible that these issues will wind up in court, and it is entirely possible that they will wind up in front of the Montana Supreme Court. If Lawrence VanDyke is elected next month in a hyper-partisan race funded by, among others, oil and gas interests, it is highly possible that the deciding vote in that case will be cast by a justice who has been bought and paid for by the oil and gas industry.

Click to enlarge

A recent mailer sent out by his supporters shows a picture of an oil well pumping unit, a pipeline and VanDyke with the title “As Supreme Court Justice, Lawrence VanDyke will protect Montana jobs from environmental extremists.” I think this means you and just about anyone who wants to place reasonable restrictions on extraction.

This is what happens when you inject partisanship into historically nonpartisan races. “It’s just a clear indication, I think, of the downside of Citizens United,” said Justice Wheat. “The judiciary is typically separated from the political process because they may have to make decisions that are unpopular. Focusing on state Supreme Court races in a partisan way is a dangerous road to go down.”

Click to enlarge

VanDyke’s pro-business, anti-environmental partisan views are on display on his campaign website, and in the corporate-funded attack piece at right. He says he favors efforts to “produce and preserve” natural resources, which he contrasts with Wheat’s dissent in the 2012 case Montana Wildlife Federation vs Montana Board of Oil and Gas Conservation et al, (see p. 37) in which Wheat sided with preservationists in a dispute over drilling gas wells. Last month VanDyke spoke at a “Coal Appreciation Day” sponsored by a coal industry group.

Corporate money from out of state
The money is coming from a little-known group called the Republican State Leadership Committee (RSLC). Formed in 2002, it is the only national organization that focuses on electing Republican majorities to state legislatures and other statewide offices. It has been active in forty-six states and has spent tens of millions of dollars. Based in Alexandria, Virginia, the committee targets legislative chambers — from Maine to Wisconsin — where there is a chance for control to change hands.

According to The Progressive,

The committee’s main tactic was to barrage the public airwaves with negative ads, much of it done at the tail end of the campaign season. GOP stalwarts such as Karl Rove and Ed Gillespie aggressively executed the battle plans through their consulting firms.

“We’ve had hard-fought campaigns before, but we’ve never seen out-of-state money drop a negativity bomb in so many races,” says Ann Luther, who sits on the board of Maine Citizens for Clean Elections. “It was shocking.”

In 2014, the RSLC has branched out into judicial elections, with plans to spend $5 million on judicial races, including $200,000 to defeat a single local judge in Missouri, and at least $110,000 in media in the Wheat-VanDyke race.

Where the donations come from
The RSLC is funded by money from national corporations that, for the most part, have no direct interest in Montana. What the organization is funding is a partisan agenda on many levels across the country.

The largest donors:
Reynolds American, Inc, the parent company of RJ Reynolds Tobacco:   $1, 114, 647
Blue Cross/Blue Shield:                                                                                            958,513
US Chamber of Commerce                                                                                       615,995
US Chamber of Commerce and related entities:                                                  496,245

Oil and gas related donors:
Koch Industries:                                                                                                        460,530
Devon Energy (corporate headquarters in Oklahoma):                                      400,000
America’s Natural Gas Alliance:                                                                              380,030
Exxon Mobil:                                                                                                              325,000

Why Montana?
It’s clear why the RSLC has targeted Montana. The Montana Supreme Court has special significance. The Court resisted the 2010 Citizens United ruling, which makes the RSLC’s financial involvement in the race possible.

In December 2011, the Montana Supreme Court, in Western Tradition Partnership, Inc. v. Attorney General of Montana, upheld the Corrupt Practices Act, passed by the voters of the state, that limited corporate contributions only in elections on initiative ballot measures. Examining the history of corporate interference in Montana government that led to the Corrupt Practices Act, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United v. Federal Election Commission.

In 2012 the US Supreme Court rejected the Montana Supreme Court argument.

The Montana Court could soon be ruling on other issues that are part of the RSLC agenda, such as abortion rights.

What the money will buy
I spoke to a media buyer who handled a Montana statewide campaign in the primary. She told me that the campaign spent $205,000 over five weeks on television ads, half as much as what the out-of-staters are likely to be spending. Based on her experience, she estimated that the anti-Wheat campaign would buy time in five markets that cover most of the state: Missoula, Billings, Butte-Bozeman, Great Falls and Helena.

At the rate charged to PACs, they would be able to purchase enough television time to reach 90% of television viewers an average of 15 times each between now and the election.

According to her, this is a “very strong” buy in terms of its statewide impact.

Based on all the money the RLSC is spending, you’ve probably already seen the ad.

Here is the counter attack ad in support of Wheat that you probably haven’t seen.

Where the race stands
Given the current state of the race, the RSLC money could be enough to tilt the seat from Wheat to Van Dyke.

According to a Montana State University Billings poll published last Friday, Wheat leads 25% – 13%, but 60% of voters remain undecided. That leaves Wheat vulnerable to a late surge of negative ads funded by outside interests.

What you can do about it
The only way to combat money is with money. If you believe in maintaining a state judiciary that is independent of corporate money from outside Montana, you can send a contribution to Mike Wheat on his website. Or, you can visit Montanans for Liberty and Justice.

There’s a lot at stake here. Don’t pass on this one.