This commentary first appeared in The Center for Michigan eNewsletter
By Rich Robinson
In one of her last interviews as Michigan’s chief executive, Gov. Jennifer Granholm told Michigan Public Radio’s Rick Pluta that the public is largely unaware of interests influencing laws and public policies because of inadequate campaign finance disclosure. Ms. Granholm told Pluta, “It is utterly ridiculous that there is no disclosure of these third party donations to secret groups that are flooding the airwaves.” She said the unreported spending “will have incredible sway on the political system, like it or not.”
I had hoped Gov. Granholm would find her voice on this subject 400 weeks earlier than she did, but her observations are still important and welcome. And make no mistake, she knows what she’s talking about. In Ms. Granholm’s two gubernatorial campaigns she was the beneficiary of some $20 million worth of television campaign ads sponsored by the Michigan Democratic Party that were not disclosed in the State’s campaign finance reporting system. No one in the history of Michigan politics has benefited more from the invisible hand of secret supporters.
My research in the public files of Michigan’s television broadcasters and cable systems shows more than $40 million worth of gubernatorial campaign ads from 2002 through 2010 that were not reported to the Bureau of Elections. That total includes $12 million for the 2010 gubernatorial primaries and general election.
Those unreported millions are not raised through $50 and $100 checks from your neighbors. Those millions are donated in five, six and seven-figure checks. The donors are rational economic actors who are seeking value for money. These secret masters of the political universe are the ones Ms. Granholm was talking about, who steer laws and policies in ways the public cannot detect. They may affect whether, or how, a bridge is built. Or they may drive a special tax credit, a capital improvement project, a no-bid contract or a section of boilerplate in a State budget.
In leading us to reinvent Michigan, Gov. Rick Snyder has said that he wants transparent government and a changed political culture. It’s fine to publish the State’s ‘checkbook’ online, so we can all critique how much the State spends for pencils and the motor pool, but that is not the sort of transparency that will transform our political culture. If we want everyone to be invested in our shared path forward, citizens need to be able to see for themselves that the winners in the policy process are not just those who financially supported the right candidate or the right party in the last election. And it’s impossible to make such an assessment when so much campaign spending goes unreported.
The special case of the Michigan Supreme Court
On a percentage basis, Michigan Supreme Court campaigns of the last decade have been dominated by secret financing even more than gubernatorial campaigns. Supreme Court candidates’ campaign committees raised almost $16 million from 2000 through 2010, and the political parties and interest groups have reported $5.7 million of independent expenditures. Undisclosed candidate-focused TV “issue” ads during that period topped $21 million.
The fact of undisclosed campaign spending in judicial elections should be even more unsettling than the role of the invisible hand in executive or legislative races. After all, executives and legislators legitimately serve interest groups. Judges and justices serve only the law.
The United States Supreme Court’s decision in Caperton v. Massey Coal Company has established that there are circumstances where extraordinary campaign spending by a party to a court case introduces a probability of bias that requires the judge who benefited from that spending to disqualify himself from his supporter’s case. This is so the supporter’s legal opponent will not be deprived of his Due Process right to an impartial court hearing. But after a decade in which half the money spent in Michigan Supreme Court campaigns was outside the campaign finance reporting system, how could a litigant or counsel even know when to ask a justice to recuse himself because of a probability of bias?
What we don’t know is hurting us. As was evident in the Caperton case, no one has greater incentive to spend big money to select a justice than a litigant with a high stakes case in the appeals pipeline. Rational economic actors pursue value for money. And that may be fine, except when Due Process rights are trampled unjustly by the exercise of competing First Amendment rights, and there is no accountability for campaign spending.
Toward free and accountable speech
This is not an argument to deprive anyone of their free speech rights. It is an argument that campaign speech should be free and the speaker should be accountable for his speech. This is a principle that was made absolutely clear in the U.S. Supreme Court’s decision in the case of Citizens United v. Federal Election Commission.
A great deal has been made of the impact of Citizens United. The fact is, it didn’t change much about Michigan state campaigns. The percentage of campaign money directed to the fund aggregators who sponsor undisclosed electioneering ads increased marginally, but the very significant lack of transparency has been with us since 2000.
The less noted aspect of Citizens United was the 8-1 vote in Part IV of the decision that established clearly that voters have an interest in knowing the sources who pay for electioneering speech, even if the speaker doesn’t explicitly tell the viewer how to vote. The court made an unambiguous statement for the constitutionality of campaign accountability. But if we’re going to have such accountability, the Congress must make a law for federal campaigns, and the Michigan Legislature, or the people of Michigan, must make a law for state campaigns.
You may hear an argument that thoroughgoing campaign disclosure is a threat to freedom of association. This argument is derived from the 1958 Supreme Court case of NAACP v. Alabama, which held that, under certain circumstances, freedom of association does require secrecy. However, there is no similarity to those circumstances, where civil rights workers were being lynched and murdered, and a campaign financier’s desire to keep his spending secret so it will not become the cause of his chosen justice having to disqualify himself from his legal appeal.
Look at what anonymity in campaign spending has gotten us. A perfect campaign ad begins with a grain of truth, then twists it, stretches it and takes it out of context to smear a political opponent. The coarse tone and distortions that are endemic to our politics derive, at least partly, from an absence of accountability. Consider the difference between a signed letter to the editor and an anonymously posted online comment, and you appreciate the difference accountability can make.
Political debates are deeply felt, divisive and critically important. Politics isn’t bean-bag. But as Justice Antonin Scalia has said, if political actors are unwilling to be accountable for their political actions, America is no longer the Home of the Brave.
Transparency and accountability are conservative values and they are progressive values. Transparency and accountability have become unknown ideals in our politics. Some may believe that we can reinvent Michigan and transform our culture without reinventing Michigan politics. That is just happy talk. We’ll transform our culture when we have transparent and accountable politics - not a day sooner.