Judicial candidate blames mystery nonprofit’s attacks for defeat

Introduction

When Ed Sheehy looked at his mail one day last fall, he was startled to see his face staring back at him, posed alongside the notorious “Christmas Day Killer.” Sheehy, as a public defender, had represented the man a year earlier. Now Sheehy was running for a seat on the Montana Supreme Court and someone was using the double-murder to accuse him of being soft on crime.

“I was furious,” the 60-year-old Sheehy, who was born in Butte, Mont., and now resides in Missoula, told the Center for Public Integrity. “It was misrepresenting what I did and what I do as a lawyer.”

So who was behind the attack?

The mailer showed only that it was paid for by the “Montana Growth Network,” a “social welfare” nonprofit, registered under Section 501(c)(4) of the U.S. tax code. Montana election records revealed next to nothing about the organization, which, because of its tax status, is not required to disclose its donors. The nonprofit’s website says its goal is to make Montana “more business friendly.”

Despite finishing on top in the summer’s primary election, Sheehy lost in November.

Mystery mailers

He blames the mailers and similarly themed radio ads paid for by the group for his defeat, and he is angry that it was not required to report the full extent of its spending — much less the names of those who bankrolled it.

Montana, in fact, is one of 35 states where disclosure laws for independent groups like the Montana Growth Network are less stringent than what federal election law requires, according to a new analysis by the National Institute on Money in State Politics.

Sheehy, the nephew of a former Montana Supreme Court justice, first faced off against attorney Elizabeth Best and Laurie McKinnon, a district judge, in a three-way, nonpartisan primary in June. The top two vote-getters advanced to the general election in November.

Ahead of the primary, the Montana Growth Network endorsed McKinnon and touted her in a mass mailing as “fair,” “honest,” “constitutional” and “the only nonpartisan choice for Supreme Court.”

The group’s mailers also focused on Sheehy’s work defending a murderer and criticized Best for pursuing a lawsuit to “seize control of the state’s atmosphere … to stop global warming.”

Sheehy, who finished first with 34.3 percent of the vote, spent $32,000 during the primary, and McKinnon, who finished second with 33.6 percent of the vote, spent about $30,000, records show. Best came in at third with 32.1 percent.

Best raised more than the other two candidates combined — $128,000, which included roughly $20,000 of her own money. She was the only candidate to advertise on television.

The Montana Growth Network spent roughly $42,000 during the primary election — more than either Sheehy or McKinnon’s own campaigns.

Outsider spends big

Best told the Center for Public Integrity that she was “stunned” by the result.

“Hearing from the candidates doesn’t matter anymore,” she said, adding that what matters is who has well-financed outside supporters to “cast candidates as something they aren’t and to tip the scales.”

McKinnon, Best said, was “running as a partisan with unlimited backing.”

The amount spent by the Montana Growth Network in the primary was required by state law to be disclosed because the mailings urged voters to support or oppose a candidate — a line the nonprofit says it didn’t cross with its subsequent activities, whose costs it did not disclose.

Ahead of the November election, one direct mail piece from the Montana Growth Network argued that under Sheehy, justice would be “beholden to a political party,” based on Sheehy’s past financial support of Democratic candidates.

Additionally, both mail and radio advertisements said that Sheehy had an “activist agenda” for his defense of Tyler Michael Miller, the so-called “Christmas Day Killer” who murdered his girlfriend and her 15-year-old daughter “in cold blood” in 2010.

While defending Miller, Sheehy had unsuccessfully sought for Montana’s death penalty process to be ruled unconstitutional because a single judge, not a jury, is allowed to assess whether “mitigating factors” exist that might rule out a death sentence.

Sheehy says he was simply “doing his job.” Miller is currently serving two life sentences after ultimately pleading guilty.

Ads tread fine line

Instead of urging people to vote against Sheehy or support McKinnon, the ads advised voters to “contact Ed Sheehy and tell him that you want an impartial Supreme Court” and to sign an online petition.

How much was spent on these advertisements is not public.

Montana media outlets reported on the anti-Sheehy radio ads, and Sheehy called on McKinnon to denounce them, which she did.

“Negative advertising has no place in a nonpartisan race,” McKinnon said in a press release at the time. “I ask for your vote based on who I am, not on negative portrayals of my opponent.”

On Election Day, McKinnon bested Sheehy by 12 percentage points.

She had also been endorsed by the Montana Chamber of Commerce and spent about $35,000 on the general election campaign. Sheehy, who had been endorsed by the Montana AFL-CIO and state’s teachers’ union, spent roughly $44,000.

Being painted as an “activist” by the Montana Growth Network, Sheehy said, was insurmountable.

“In judicial elections, that does you in,” he said.

University of Montana political science professor Jim Lopach said he was surprised by the election results.

Name didn’t help

“It’s amazing that Sheehy didn’t win with name recognition he had,” Lopach said, adding that McKinnon came across as the “more conservative” candidate.

One fact that is known about the Montana Growth Network is the name of its founder and treasurer — Republican state Sen. Jason Priest, who donated the legal maximum of $620 to McKinnon’s campaign.

McKinnon declined to be interviewed for this story. Priest told the Center for Public Integrity that Best and Sheehy “disqualified themselves” during the race.

“The voters made their own decision based on the information they had,” Priest said. “We told voters that you’re better off with a nonpartisan court.”

Priest said the Montana Growth Network didn’t report the spending to the state because it was “issue advocacy,” which is not required to be disclosed.

In the months since the election, the Montana Growth Network has continued to produce issue advertisements, including mailers that encouraged Montana lawmakers to reject the expansion of Medicaid coverage called for under the health care reform law signed by President Barack Obama.

Jim Murry, the Montana Political Practices Commissioner until he resigned earlier this year, told the Center for Public Integrity that “voters should be angry and upset” about the lack of transparency at the state level regarding political ads.

In the wake of the U.S. Supreme Court’s Citizens United v. Federal Election Commission decision in 2010, which lifted a ban on corporate spending on political ads that call for the election or defeat of federal candidates, many lawmakers have attempted to update regulations at the state level.

During its most recent legislative session, a bipartisan group of Montana lawmakers pushed for new campaign finance rules that would have required disclosure of “electioneering communications” — defined as ads run within 90 days of an election that show or mention candidates without explicitly advocating for their election or defeat.

The Montana state Senate passed the bill in March on a 29-21 vote, but it died in committee in the Montana House of Representatives. A motion in April to bring it to the House floor without committee approval received majority support but fell six votes short of the three-fifths required.

Secret spending in judicial elections concerns Adam Skaggs, senior counsel at the New York-based Brennan Center for Justice, which advocates for fair and impartial courts.

“There are real concerns that judges will be partial to the individuals or the interest groups that are responsible for putting them on the bench,” he said. “The power of the judiciary depends on its reputation.”

For more information about money in state politics, visit the National Institute on Money in State Politics online at www.followthemoney.org.