The Michigan Republican Party has launched the television campaign for the 2014 Michigan Supreme Court election. The MI GOP ran a $500,000 flight of broadcast TV ads about its Supreme Court nominees in the Detroit, Grand Rapids/Kalamazoo and Flint/Saginaw media markets between October 1st and October 7th. Another $100,000 was spent on cable ads that ran more broadly.
Is this dark money?
At this point it is impossible to tell whether the ads will be disclosed to the Michigan Bureau of Elections. Unlike federal law, which requires independent expenditures and electioneering communications to be reported within 24 hours, Michigan law does not require real-time reporting. If the ads are reported at all, it will not be before pre-election reports are filed on October 24th. Given the composition of the ads, it is unlikely they ever will be reported.
The ads praise the Republican Party's nominees, incumbent Justices Brian Zahra and David Viviano and Judge James Redford, and invite viewers to call the candidates and thank them for being good, strong judges. The ads do not explicitly direct viewers to vote for the three.
Under an amendment to the Michigan Campaign Finance Act that was passed by legislative Republicans and signed into law by Gov. Rick Snyder last December, the ads fail to meet the "magic words" test of what constitutes a campaign expenditure that must be reported.
If the ads are indeed "issue" ads, and they are not reported, the donors behind the expenditure will not be disclosed either. This is of particular importance in a judicial campaign - beyond the normal right of citizens to know who is funding political campaigns - because judges can legitimately be disqualified from judging a case involving a major campaign supporter.
"If these phony 'issue' ads are not disclosed, and I am quite certain they will not be, they are a clear illustration of the way dark money erodes the presumption of impartial justice," said Rich Robinson of the Michigan Campaign Finance Network.
"Nobody has the incentive to write a big check to support a judge's election like a litigant with a high stakes case in the pipeline who wants that judge to decide his or her case. That can lead to an opposing litigant going to court where the promise of impartiality has been undermined, but the cause of bias can't be detected," Robinson said. "Dark money judicial campaigns are completely incompatible with impartial justice - but dark money is endemic to Michigan Supreme Court campaigns."
In Michigan Supreme Court campaigns from 2000 through 2012, the Michigan Bureau of Elections shows reported spending of $26.6 million by candidates and nominally independent political committees. During the same period, the Michigan Campaign Finance Network has compiled records of $34.7 million-worth of TV ads about the candidates from the public files of state broadcasters and cable systems that were not reported. In the 2012 Supreme Court campaign, $5 million was disclosed, $14 million-worth of TV ads was undisclosed.
"Michigan has earned a reputation as the epicenter of dark money judicial campaigns," Robinson said. "That is a very poor distinction to have."
The above-ground TV campaign
Democratic Supreme Court nominee Richard Bernstein has a television campaign in place to begin October 14th in all media markets south of Clare. Bernstein's ads are scheduled to run until Election Day.
Incumbent Justices Zahra and Viviano have joint television ads scheduled to run statewide from October 20th until Election Day.
There is every reason to believe that the candidates' ads will be reported to the Michigan Bureau of Elections.