Big Sky's the Limit

Montana knows all about buying elections. In 1899, just ten years after it became a state, William Andrews Clark, known as the Copper King, spent an estimated $400,000—the equivalent of $11 million today—to buy the votes of state legislators to send him to the United States Senate. After a lengthy investigation, Clark resigned before the Senate could boot him out. The scandal turned from shocking to farcical when Clark, who bragged that he “never bought a man who wasn’t for sale,” returned to Montana and the lieutenant governor reappointed him to the position from which he’d just been removed. The governor later revoked the appointment, but Clark's third attempt at higher office proved the charm: After spending enough on political campaigns to ensure a state legislature amenable to his re-re-election, he prevailed and sat in the Senate until 1907. Mark Twain said of the affair that Clark had “so sweetened corruption that in Montana it no longer has an offensive smell.”

In the early 1900s, another Montana copper baron, Fritz Heinze, purchased the support of two state judges. The first issued a decision favoring Heinze’s company, which employed the judge’s mistress at the time. The second judge delivered a decision compelling Heinze’s chief rival, Amalgamated Copper, to stop operations in the state, throwing 15,000 Montanans—80 percent of the state’s labor force—out of work. 

By 1912, Montanans were so fed up that they passed a ballot initiative, the Corrupt Practices Act, which banned corporate spending in the state’s elections and made Montana a model for the 23 other states that eventually placed restrictions on corporate spending. 

A century later, those corporate interests are back, bigger than ever. Montana’s lone member of Congress, Republican Denny Rehberg, is challenging first-term Democratic Senator Jon Tester. The race is shaping up as a test case for the influence of unlimited corporate spending in the post–Citizens United era. Outside groups are bombarding both candidates with ads, though the spending has been disproportionately large on the Republican side. The first ad attacking Tester aired in June 2011—17 months before Election Day. Seventeen negative ad buys followed, totaling nearly $3 million by the end of April. None came from a candidate or a party committee. Instead, they were purchased by Karl Rove’s Crossroads Grassroots Policy Strategies (GPS), the U.S. Chamber of Commerce, Citizens for Strength and Security, the 60 Plus Association, and other organizations allowed unrestricted spending by two 2010 rulings: the Supreme Court’s Citizens United v. Federal Election Commission and the D.C. Court of Appeals’ Speechnow.org v. Federal Election Commission, which together spawned super PACs and allowed undisclosed donations to flow through 501(c)(4) nonprofits. (Super PACs must identify their donors.)

Much of the attention this year will be focused on the influence of outside spending on the presidential election. As of April 28, presidential super PACs had funneled more than $91 million into the 2012 presidential race—more than $42 million coming just from the pro–Mitt Romney super PAC Restore Our Future, which played a key role in securing the Republican nomination for him. But the impact that outside spending will have on congressional races will be the most significant campaign-finance story of the 2012 election. A few extra million dollars isn’t going to swing a presidential election in which both candidates are likely to have $1 billion behind them. A $1 million dump in a single congressional district or a small state like Montana, however? “Oh, it’s huge,” says Thomas Mann, a campaign-finance expert at the Brookings Institution. “I mean, you can really imagine a million, two million bucks dropped late in the campaign could really change the outcome of elections.”

Super PACs and other unrestricted third-party spenders helped Republicans win back the House in 2010. (They also helped tip many statehouses to the GOP.) The biggest super PAC and nonprofit of 2010 were American Crossroads and Crossroads GPS, two Rove creations that together raised more than $70 million in 2010. In this election cycle, they’ve already bettered their 2010 record. From January 2011 through March 2012, the Crossroads groups raised nearly $100 million. Rove’s target for both groups this year is $240 million, a sizable portion of which will go to congressional races.

 

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There’s an obvious reason groups favoring the Republicans are pouring so much money into these contests. They want to retain the GOP’s majority in the House and take back the Senate, where the electoral landscape favors Republicans. The GOP is defending just ten Senate seats in 2012; Democrats are defending 23, because the party had a banner year in 2006. If Republicans take four seats away from Democrats, they will capture a majority in the Senate. The contests in Virginia, where former Governors Tim Kaine and George Allen are fighting for the open seat, and Massachusetts, where Elizabeth Warren, former oversight chair of the Troubled Asset Relief Program, is taking on incumbent Republican Scott Brown, are receiving the most national attention. Close races in Nevada, New Mexico, and Wisconsin are also attracting major outside money. But no race will be more defined by super PACs and nonprofits than Montana’s, because the state’s population is so small—just under one million people. The cost to purchase ten days’ worth of ads for the entire state is only $150,000, offering an enormous bang for the buck. The $2 million already spent by outside groups has merely provided a preview of what the race will look like this fall. 

 

Crossroads’ attacks on Tester depict him as a Washington insider who has betrayed Montanan values. “There is no sitting politician in America more sideways with his constituency than liberal Jon Tester representing Montana,” says Jonathan Collegio, Crossroads GPS’s spokesperson. “Crossroads intends to hold Tester accountable for his liberal votes on Obamacare, the stimulus bailout, and other votes that have driven up debt and regulations and not done a thing to help the economy.”

By almost any measure, Tester is a moderate. According to the National Journal’s 2011 vote ratings, Tester was one of the least liberal Democrats in the Senate, ranking 41st out of 53. His response to the attacks, though, has been to emphasize something else entirely: that outsiders are trying to meddle in the state’s business. Tester aired his first ad on March 26 (also extremely early by Montana standards). The spot depicts him as Montanan through and through. Dressed in well-worn jeans, standing next to a bright-red combine harvesting grain under a clear blue sky, Tester says: “Sitting out here makes the partisanship back there look pretty ridiculous.”

Tester has always trumpeted his farmerness—in his campaign and Senate press releases, he is repeatedly identified as a “Montana farmer”—but in this election it’s going to be his defining strategy. Tapping into his state’s history of resistance to political corruption, Tester wants to make 2012 an “us versus them” election. The “them” isn’t Rehberg, or even Republicans, but those wealthy hucksters back East who are buying all the ads. “Montanans can’t be bought,” says Chris Saeger, spokesperson for the Montana Democratic Party. “They’re going to believe someone more if they’re knocking on their door instead of through a shadowy television attack ad.”

Or so the Democrats hope. 

There’s a hitch in this campaign strategy, though—and not just because Tester raises most of his money from outside the state. Shadowy attack ads are not the sole province of the right: Democrat-leaning 501(c)(4)s have already spent $700,000 on ads against Rehberg.

Still, it’s likely that pro-Tester groups will be far outspent by Republican groups—mirroring the national picture. In 2010, five of the top seven super PACs supported Democrats. But American Crossroads outspent all of them combined. Thomas Mann says Democrats like Tester can run against super PACs because the unfiltered streams of money have a decidedly partisan tilt, one not in their favor. “If we didn’t have outside players in this race, Tester would be in better shape,” he says. “I think you’ll see that situation repeated around the country. Crossroads and other super PACs will try to tip the balance of resources in some of these races where Democrats would otherwise have a clear financial advantage.”

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Facing an onslaught of corporate spending, Montana is once again challenging the ascent of wealth over democracy—this time through the courts. In Western Tradition Partnership, Inc. v. Attorney General, the state’s Supreme Court ruled in December that the Citizens United decision does not apply to the Corrupt Practices Act of 1912—the law born in the aftermath of copper-king corruption—because the century-old law is designed to meet a compelling state interest. The plaintiff, a conservative nonprofit, appealed, asking the U.S. Supreme Court to overturn the Montana ruling; instead, the Court has stayed the lower court’s ruling until it decides whether to take another look at Citizens United. A re-examination of Citizens, however, likely won’t occur until 2013 at the earliest, if it occurs at all. Meanwhile, the stay allowed the money to keep streaming into Montana.

In February, Tester offered Rehberg a super-PAC pact: The candidates would agree to pay a penalty equal to the ad buy of any political advertisements from outside groups supporting their campaign. (In Massachusetts, Warren and Brown struck a similar agreement, which resulted in Brown donating to two different charities after outside groups ran ads attacking Warren.) Rehberg rejected Tester’s proposal but responded with one of his own: that the candidates reject all donations from outside Montana, including those from political action committees and lobbyists. Tester, who receives 70 percent of his funding from outside the state, turned down Rehberg’s proposal. Three-quarters of Rehberg’s campaign stash comes from outside, too, but Rehberg was confident that Montana’s business interests, which favor him, could outspend Tester’s in-state supporters. 

“Before this election is through, people will feel as if they are absolutely showered with advertising daily,” says Pat Williams, a Democrat who represented Montana in Congress for 18 years. Political scientist and electoral forecaster Alan Abramowitz, author of The Disappearing Center, agrees. “Especially in a small state like Montana, I can’t imagine what it’s going to be like. It’s just going to be ridiculous.”

The audience this unprecedented flood of money seeks to reach is not just small; it’s minuscule. Both Tester and Rehberg are already well known to Montanans. A recent Billings Gazette poll had Tester up 46 percent to Rehberg’s 45 percent, with 9 percent undecided. In the 2008 presidential election, about half a million Montanans turned out to vote. If the same number casts ballots this year, the spending would be aimed at convincing about 45,000 undecided voters. By the end of April, super PACs and other outside funders had already spent about $58 per undecided Montanan, with six months until the election and untold millions to come. That’s a figure fit for a copper king.

CORRECTION: An earlier version of this article erroneously stated that the U.S. Senate unseated William Andrews Clark after he won his first election through corrupt means. Clark actually resigned before the Senate could take action, and was reappointed to the position by the lieutenant governor.

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