When Idaho lawmakers attempt the leap from statehouse to courthouse, do their politics and pet causes inevitably follow them?
The question has hovered around this year’s keenly fought contest for a vacant state Supreme Court seat — an election that is supposed to be nonpartisan. It rises to the fore again in correspondence disclosed this week between one of the candidates and a lobbyist for the National Rifle Association.
The candidate, Curt McKenzie, an ardent gun-rights advocate who gave up a Senate seat to run for the court, was eager to secure the backing of the NRA in his bid for the bench.
“I wondered if the NRA was going to officially endorse anyone in the race,” he wrote in a text message to the lobbyist last April. “I’ve been able to talk about my record but wanted to confirm one way or the other before I said anything.”
“We released them today,” the lobbyist wrote back. “We aren’t giving grades because no way to grade other candidates. But you are NRA endorsed. We are helping with your campaign as well.”
“Awesome!” was McKenzie’s reply. A lawyer and a conservative seven-term Republican senator from Nampa, he emerged as the No. 2 vote-getter in a four-way May primary. He now faces the top finisher, Robyn Brody, a Rupert attorney whose partisan stripes show mostly in campaign contributions she has made to Republican candidates over the years.
McKenzie’s text message conversations with NRA lobbyist Dakota Moore became public via a records request made in August by The Trace, a nonprofit news site covers gun violence, as part of a broader review of the NRA’s influence on state politics nationally.
The organization gave the Statesman records of text messages and emails between the two men dating from the beginning of the 2015 legislative session through June of this year. Most of their correspondence is about gun legislation that Moore worked on with McKenzie and other lawmakers in each session.
In 2015, the Legislature approved a rewrite of the state code on concealed weapons carry. McKenzie carried the bill in the Senate. The most significant change spelled out that a concealed carry permit is not required outside of city limits in the state.
In the 2016 session, lawmakers went a step farther, authorizing adults over 21 to carry a concealed firearm without a permit inside city limits. McKenzie carried that bill, which passed in the Senate on March 16.
“Congratulations!!!!” Moore texted to McKenzie when the bill passed the House two days later.
“It’s awesome,” McKenzie wrote back. “I (hope) the governor does a signing ceremony.”
RUNNING FOR THE BENCH
By then, McKenzie had already announced his plans to leave the Legislature to run for Supreme Court.
“Do you have a PAC set up yet?” Moore texted on March 21.
“I do, but as a judicial candidate I can’t directly solicit any contributions,” McKenzie replied, telling Moore his campaign co-chairs “are handling those issues.”
“Okay. Good to know. Thank you,” Moore replied.
Outside of the politically neuteral environment of a judicial election, McKenzie’s ties to the NRA would seem a natural fit given his track record on Second Amendment issues. Similarly, his opposition to abortion earned him the support of Idaho Chooses Life, and he also runs with the backing of the Idaho Farm Bureau and Idaho’s professional firefighters union, not to mention about 40 of his legislative colleagues. He also has endorsements from two of the more beefy business lobbies in the state, the Idaho Realtors Association and the Idaho Association of Commerce and Industry.
“I’m happy for the organizations that have endorsed me in the race,” McKenzie told the Statesman Thursday, rattling off the names of a few. “I would say with respect to the NRA, it is important, to those who are supporters of Second Amendment rights, what is the judicial philosophy of individuals who may serve” as judges.
What if issues involving Idaho’s gun laws come before the high court? Would McKenzie have to recuse himself?
McKenzie said such issues would be addressed “on a case-by-case basis based on both the facts before the court and what the issue on appeal was.” Beyond gun rights, he said, questions could arise on any of a range of different issues he has worked on in 14 years as a legislator, including 14 state budgets he has voted on.
In late May, after McKenzie and Brody had emerged from the primary as the general election candidates, McKenzie texted Moore with an update on the race.
“We got through the primary despite some huge (cash) from the trial lawyers for one of my opponents,” McKenzie wrote, referring to Brody, who has run with broad support from lawyers in the state and high ratings from the state Bar association.
“Am keenly aware, we gotta pull this off,” Moore replied. “I’m not particularly fond of Brody’s tactics and the money behind her is especially revealing of whose interests she will serve.”
A week later, on June 2, McKenzie texted Moore again, asking him for help connecting with former NRA president David Keene, who was attending the state Republican convention that month.
“It would be great to get a photo and possibly a quote from him about the work I’ve done on Second Amendment issues,” McKenzie said. He followed up on June 27.
“Dakota, when you have a minute could you give me a call about the Idaho Supreme Court race? I want to make sure that gun owners are getting out to vote in this critical race. I also wanted to see if we could possibly get a quote from David Keene referencing the legislation that I’ve carried. Thanks!”
Moore responded to set up a time to talk.
McKenzie said his outreach to the NRA’s lobbyist started out as a simple inquiry.
“I didn’t know if the NRA even took positions on judicial races at the state level,” he said. “I’ve got a very public record on Second Amendment issues. I just didn’t know whether they would or not. I’m happy that the did, but it wasn’t something that I had counted or expected or even knew that they would do.
FINANCIAL BACKING FOR THE RACE
The endorsement from the former NRA president never came together, he said. But the NRA and other groups have been generous with independent expenditures supporting his campaign. Brody to date has none of those. Most of her financial support comes in the form of direct contributions from individuals, mostly lawyers, and law firms.
She has, in fact, significantly outraised McKenzie in the race. From the end of May through the end of October, Brody had raised more than $126,000 for her run, including $13,000 she loaned her campaign. McKenzie’s contributions during the same period were approximately $77,000, $41,500 from his own pocket.
In spite of that advantage, the NRA “never talked to me about my views on second amendment issues,” Brody said Thursday. She was sharply critical of how her opponent had gone about seeking support for his run.
“The people of Idaho deserve better than this from a judicial candidate,” Brody said. “Curt and I belong to the same political party, but I made the decision when I started this race that the commitment to the people and to the rule of law means more than party politics.
“For me the bigger issue is lobbyists in general. It’s not just the NRA,” she added. “Special interests are fueling this race and I think it undermines the peoples confidence in our system and the impartiality of our judges.”
Idaho is one of sixteen states that holds nonpartisan elections for Supreme Court. Six other states choose top state judges in partisan contests. In all other states they are appointed — by the governor directly in four states, by the Legislature in two, or following nomination by a commission in 22 other states.
Jim Weatherby, a Boise State University emeritus professor and political analyst, said Idaho’s system holds judicial candidates to “a virtually impossible standard,” insisting they run as nonpartisans “in a highly charged partisan election cycle.” He called judicial elections “an imperfect way to select judges.”
“They're not supposed to take issues positions, yet the electorate expects to know the candidates’ political leanings,” Weatherby said. Appointment based on a commission’s recommendation “would be a far better method, removing the choice from obvious partisan political considerations and special interest group pressure.”
Note: This story has been revised to clarify that state judicial commissions nominate candidates for appointment. The process varies widely by state.