Mimesis Law
22 June 2018

Justice(s) For Sale: How Two Billionaires Beat Ed Sheehy

June 2, 2016 (Mimesis Law) — When Judge Jane Kelley’s name was being floated as a possible nominee for the Supreme Court, critics called her out for the heinous crime of being a defense attorney and defending her client. The attacks were a cheap smear job, suggesting that Kelley argued that a defendant who murdered a five year old girl “wasn’t a threat to the community.” (Spoiler alert: she didn’t). Ultimately, it didn’t come to anything, since President Obama nominated Merrick Garland and the Senate isn’t doing anything about it anyway.

Something similar happened to Ed Sheehy, who ran for the Montana Supreme Court in 2012:

Ed Sheehy was driving home one day in the middle of his 2012 run for a Montana Supreme Court seat when he received a call from a local newspaper reporter. The reporter wanted to read Sheehy the transcript of a blistering new radio ad.

The ad assailed Sheehy’s work as a state public defender in a high-profile death penalty case several years earlier, arguing that it showed the lawyer had “activist values” unsuitable for the state’s highest court.

But the ad spun that case as evidence that Sheehy was some sort of bleeding heart liberal. “It was a slap in the face for victims’ families and justice,” intoned the ad’s female narrator. “Now Ed Sheehy wants to take his activist values to the Montana Supreme Court.”

The ad was funded by a group called the Montana Growth Network. MGN dropped about $650,000 on that race, compared with the roughly $44,000 spent by Ed Sheehy and $35,000 spent by Laurie McKinnon, the eventual winner. At the time, MGN was organized as a 501(c)(4) and didn’t have to disclose its donors. But a couple of weeks ago, Montana’s top political watchdog filed a case against MGN, alleging violations of election finance laws.

As it turns out, the two biggest donors are Charles Schwab (yes, that Charles Schwab) and James Cox Kennedy (chairman of the media conglomerate Cox Enterprises), who both wrote six figure checks to MGN.

So far, nothing unusual here. After all, just as the law in its majesty prohibits the rich and poor alike from sleeping under bridges and stealing bread, it allows billionaires and plebeians alike to spend as much money as they want on whichever election they choose. Except, it turns out that maybe Chuck and Jim had more on their mind than saving Montana from the likes of judicial activist Ed Sheehy:

The probe also revealed that the two billionaires had a direct stake in a case moving through Montana’s courts at the time of the 2012 election. While neither are residents of Montana, they both own large estates there. The two properties include streams and rivers to which the owners would like to restrict access. But Montana has some of the most liberal laws for recreational waterway use in the country: The state’s 1972 constitution allows broad public access to those waterways.

Schwab and Kennedy don’t like that law — at least as it applies to their land. They’ve spent more than a decade challenging it in court, sometimes with the support of other wealthy out-of-state landowners. By 2012, they had already lost at least three cases before the Montana Supreme Court.

You can’t blame Schwab and Cox. If I had a riverside estate and a few billion dollars sitting around, dropping a few hundred G’s to keep the peasants off my lawn bank might be a worthwhile investment. But this isn’t a post about Citizens United. It’s a post about how Citizens United should be irrelevant.

Electing judges is almost as bad an idea as electing public defenders, but it’s not exactly an uncommon practice. If we’re going vote for judges (or congressmen, or Presidents, or dogcatcher for that matter) it’s not up to Schwab, or Cox, Congress or even the Supreme Court to make sure we vote intelligently. That’s on us.

Think about the anti-Sheehy ad. The Montana Growth Network had so little respect for the intelligence of the electorate that they ran an ad attacking a defense attorney for trying to prevent the death of his client.  And Sheehy was a public defender at that, so it’s not like he even had a choice. How many people were so ignorant of the basics of the legal system that they heard that ad and decided not to vote for him? There’s no way to tell. But every single one of them is a moron. For them, campaign finance regulations don’t matter. It’s like Ron White says: you can’t fix stupid.

We like to talk about “buying elections.” That’s inaccurate. Elections can’t be bought. Even the voters can’t be bought. They can only be persuaded. True enough, it costs money to run an election, but where does that money go? Mailers, radio ads, TV commercials, and the like. But guess what? The ads aren’t voting. Neither is the cash. We are.

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  • jdgalt
    4 June 2016 at 9:22 pm - Reply

    I’ve always supported the idea of judicial elections. The big problem with them is that almost no information about how judges actually rule on things is available to voters.

    Is this information public? Or is it impossible for us to know without going to all kinds of trials and sitting in the spectators’ section?

  • Montana Money Shenanigans Against Dirk Sandefur
    17 October 2016 at 9:25 am - Reply

    […] previously covered the story of Ed Sheehy, a Montana public defender who was defeated in his 2012 run for the Montana Supreme Court when two […]