The phase of the campaign cycle we hate most is now upon us: smear time. Our mailboxes are stuffed with the telltale placards from “Citizens for Justice” or “Americans for Prosperity” or some such misnomer, presenting the smear subject a la Robert Mitchum in “Cape Fear” – a dark, scowling menace emerging from an ominous gray fog. Thick, bold and black text warns us that Robert Mitchum will raise our taxes or prey on our children or, God forbid, take away our guns. Do not vote for Robert Mitchum.
The TV ads are even worse. With a film noir soundtrack underscoring the threat, a somber narrator warns us of our impending doom as blood-stained crime scenes or swarthy men in turbans or pathetic children clutching stuffed animals alternate with the ever-menacing Robert Mitchum on the screen.
The worst of these this year is the campaign to smear Supreme Court candidate Dirk Sandefur. Stop “Set-‘em-free” Sandefur (appropriately, SSS) is the purported sponsor, but SSS is funded by the Republican State Leadership Committee, which is in turn funded by the likes of the U.S. Chamber of Commerce, Blue Cross Blue Shield, WalMart, the ubiquitous Koch brothers, and a couple of pharmaceutical giants. After poring over hundreds of cases from Sandefur’s 14 years on the bench, SSS found three to die for, all involving sex and children.
So the soundtrack rolls, and a deep, indignant voice narrates thumbnail sketches of the terrible tales while lurid details, carefully culled, roll across the screen. Thirty seconds is all it takes to smear a man. Not so when it comes to clean-up. There’s no way to create a 30-second rebuttal that captures the complex weave of fact, law, and alternatives these cases entail.
Perhaps the best rebuttal is the one provided by Cascade County Attorney John Parker, who has argued cases in Judge Sandefur’s court for many years. As Parker explains, prosecutors present judges with impossible situations. “We often present them with a choice between a bad outcome and a worse outcome, especially in difficult sexual assault cases. Sandefur has never shied away from making [these] weighty and next-to-impossible decisions.” (Indeed, two of the ad’s tales occurred during this campaign cycle.)
There is something to fear in these ads, though, and it isn’t Robert Mitchum. It’s the legality of presenting as truth the selective detail and tortured reasoning that characterizes the SSS smear. One might as accurately say that Huck Finn is the story of a cross-dressing runaway on a Deep South crime spree. Or that Gatsby was a seducer of another man’s wife and got what was coming to him.
Beyond the legal lie is something even more frightening. Bolstered by Citizens United and lured by the low cost and high saturation of airtime in Montana, out-of-state interests are seeing Montana’s Supreme Court as an irresistible bargain. For the third consecutive campaign cycle, they’re unabashedly trying to buy a seat of their very own. If that means trashing the reputation of a Montanan doing the public’s work, so be it.
Particularly vulnerable to these attacks are Montana lawyers who work in the public sector, who have to take whatever case comes before them and whose work is publicly recorded. In 2012, for instance, the “Montana Growth Network,” also funded by out-of-state tycoons, spent some $650 million to smear Supreme Court candidate Ed Sheehy (Full disclosure: Ed’s my cousin.) Ed was and is a public defender, one of the few attorneys in Montana who meets the qualifications imposed by the United States Supreme Court to provide a legal defense in death penalty cases.
Death penalty cases are seldom pretty. MGN had no trouble finding one they could use to make mild-mannered Ed Sheehy look like heartless Robert Mitchum, “slapping the victims’ families in the face” by defending the “Christmas Day Killer.” After weeks of ominous mailers and radio spots, Ed was toast. The Office of Political Practices is now pursuing MGN for its clearly political role in his defeat, but whatever settlement OPP negotiates will be for the public’s benefit. It won’t undo the damage to Ed’s name and bank account or give him the court seat he might otherwise have occupied.
In years to come, what Montana attorney, after providing the legal services our Constitution requires in case after controversial case, will be willing to pay the price that Sheehy and Sandefur have paid to serve on Montana’s Supreme Court? And what price will our court pay, when no member has any direct experience with the messy, undesirable cases that courts must adjudicate? “Cape Fear” soundtrack, please.
Mary Sheehy Moe represents Senate District 12 in Great Falls.