WASHINGTON -- The state of Montana has worked particularly hard to ensure that its elected officials are accountable to the people, rather than special interests. It largely banned both corporate donations and also large contributions from individuals, in order to ensure that politicians are not too indebted to anyone, and judicial candidates are all nonpartisan.
But Montana's system is being dismantled by the Supreme Court's 2010 Citizens United ruling, which opened the doors to corporate influence in the political system. In June, the high court struck down Montana's century-old limits on corporations spending on behalf of candidates in political campaigns. Last week, the Ninth Circuit decided that the state's system of nonpartisan judicial elections was unconstitutional, paving the way for political parties to make endorsements. Both decisions cited the precedent set in Citizens United.
Justice James Nelson currently sits on Montana's Supreme Court. He is retiring when his term expires at the end of the year, after serving nearly 20 years on the bench. And in an interview with The Huffington Post, he expressed concern over the direction that Montana's political system was taking due to Citizens United.
"Citizens United changes the calculus because notwithstanding what the Supreme Court said, corporations, special interests and super PACS, can drown out the voice of people who don't have the money," Nelson said, stressing that he was expressing his personal opinions and not those of the court. "You're seeing that right now in Montana. You don't see many TV ads for local candidates."
Nelson said he wasn't particularly surprised by the Ninth Circuit's ruling, in light of the precedents set by Citizens United and another case, Republican Party of Minnesota v. White, which ruled that the First Amendment protects judicial candidates who want to express their opinion on political issues.
The Ninth Circuit's decision in Sanders County Republican Central Committee v. Bullock allows political parties and other organizations to make endorsements in judicial races, although judicial candidates still don't have to accept them. They can disavow or deny the backings of these groups.
Indeed, the two candidates running to replace Nelson have both said they will not accept any endorsements, arguing that a state judicial code forbids them from doing so.
Still, Nelson worries that future candidates may not be so upstanding. And even if a candidate turns down an endorsement, organizations are still free to make their preferences known and spend money on behalf of their pick.
"Obviously, if it's a partisan endorsement, some of the public at least will believe that that judge is in agreement with the ideology that endorses him or her," Nelson said. "That may or may not be true, but that's a fine point that will probably be lost on the public."
The Sanders County Republican Committee has not yet endorsed in any judicial races, although it has said that it would like to do so in two contests. The committee did not return a request for comment from The Huffington Post. The Montana Justice Department is expected to appeal the Ninth Circuit's ruling.
In June, Montana Gov. Brian Schweitzer (D) decried the influence of Citizens United in his state, saying that the effects of corporate money were already being felt.
"The ink wasn't even dry when corporate front groups started funneling lots of corporate cash into our legislative races," Schweitzer wrote in a New York Times op-ed. "Many of the backers have remained anonymous by taking advantage of other loopholes in federal law. But it’s easy to figure out who they are: every industry that wants to change the laws so that more profit can be made and more citizens can be shortchanged."
According to a recent analysis by the progressive Center for American Progress, spending on judicial elections has skyrocketed in the past two decades, fueled in large part by donations from corporate interests such as the U.S. Chamber of Commerce. In 1990, candidates for state supreme courts raised around $3 million. In the 2000 race, they raised more than $45 million.
"It all boils down to this: I think that the public -- I don't care whether they're Republicans or Democrats or libertarians or whatever -- wants judges who are independent. Who think independently and are willing to base decisions on the law, and are willing to protect their constitutional rights. That's what the public wants," Nelson said. "Republicans come to court, Democrats come to court. Big businesses come to court. What they all expect is fairness. They want impartial fairness. That's what they should get."
"To the extent that judges are elected to the bench and are there because of an ideology, because they're beholden to some party or special interest," he added, "those judges are not fair and impartial."
CORRECTION: An earlier version of this article stated two men are running to replace Nelson. The two candidates, however, are attorney Ed Sheehy and District Judge Laurie McKinnon.
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