A district court judge from Billings is forming an exploratory committee to consider running against U.S. Sen. Jon Tester in 2018.
Russ Fagg, who announced earlier this spring that he will retire from the Yellowstone County District Court bench in the fall, announced his decision in a press release Tuesday.
“I believe in jobs first, and Montana always. I’ve seen every kind of family suffering come through my courtroom in my 20 years as a judge," the release said. "Now I want to do something more about it. I want to help bring the prosperity to Montana that might benefit our families. We need more good paying jobs. Is there support out there for a candidate who puts jobs and families first? This committee will help find that out.”
Fagg had previously said he was resigning to start his own law firm and consider a political career. He does not retire until October, but in the press release said that having an exploratory committee while still serving as a judge struck "a balance between federal law and Montana's judicial ethics."
Under The Montana Code Of Judicial Conduct, judges can't publicly identify themselves as candidates of a political organization. Judges also can't raise money for political organizations, groups or candidates.
Democrats were quick to challenge the ethics of Fagg exploring a U.S. Senate run. In January, the judge considered a seeking the Republican nomination for U.S. House, but chose not to, citing concerns about campaigning in a partisan race while serving on the bench.
“Russell Fagg, a sitting judge, is actively fundraising, introducing himself to people at political conventions, and taking stands on issues with his focus admittedly on running for a Senate seat," said Chris Meagher a Montana Democratic Party communications advisor focused on the reelection of U.S. Sen Jon Tester. "If that isn’t campaigning for office, then what is? Fagg himself said this behavior wasn’t ethical, and he can’t have it both ways.”
But there's a difference between the judge's concerns about the special election and a possible U.S. Senate run, Fagg said.
An exploratory committee isn't the same thing as a campaign for office, Fagg said. He's currently not a candidate for a political organization. The Model Code of Judicial Conduct recognizes the difference.
"The only thing I can say to Chris is he needs to read the law very carefully there," Fagg said.
A sizeable group of Republicans have already said they will or plan to run against Tester. That includes Ronald Murray, of Belgrade; Kalispell state lawmaker Albert Olszewski; Scott Roy McLean of Missoula; and Troy Downing of Big Sky.
Other names that have been floating around are Commissioner of Securities and Insurance Matt Rosendale; Gary Carlson, of Hamilton; new Montana GOP chairwoman Debra Lamm; and Kurt Allen Cole, of Troy, who previously told Lee Newspapers he was considering a bid.
Montana’s 2018 Senate race is expected to be hard-fought and expensive. Nationally, Democrats are playing up the elections as a referendum on President Donald Trump, who has faced low approval ratings in his first six months on the job. Republicans are encouraged by victories in special elections this spring, including one by now-U.S. Rep. Greg Gianforte in Montana, who beat Democrat Rob Quist even after Gianforte assaulted a reporter on the eve of the election. Tester has so far navigated Trump's presidency by at times falling on the same side of issues as Trump, though not always.