Supreme Court candidates on accountability for political advertising

Several members of the 2011-2012 Judicial Selection Task Force, including its co-chairs, retired Justice Marilyn Kelly and Senior Judge James L. Ryan, sent a single question to this year's candidates for Michigan Supreme Court:

Do you support the recommendation of the nonpartisan Michigan Judicial Selection Task Force that individual contributors to the cost of all Supreme Court campaign advertising be publicly identified?

The candidates' responses follow:

Richard Bernstein: I fully support the recommendation of the Michigan Judicial Selection Task Force that all contributors to the cost of Supreme Court campaign advertising should be publicly identified. Campaign funding and finance laws should foster transparency and enable voters to make informed decisions - this goes to the heart of our democracy. The citizens need to know that elected officials are working for them.

Kerry Lee Morgan (suggesting an alternative question): Do you support the recommendation of the Michigan Judicial Selection Task Force that the media should not reinforce by their coverage, the partisan assumption shared by Democrats and Republicans, that only their candidate should be considered by the voters for a seat upon the Michigan Supreme Court?

Judge William Murphy: I support the recommendation of the Michigan Judicial Selection Task Force. I believe that Michiganders should know who is funding the campaigns of those who control their judicial system.

Judge James Robert Redford: Yes. I do support this. I also support an additional requirement for Candidate Committees as well as other third party groups to be required to report in the final 2 weeks preceding any election the receipt or expenditure of in excess of $5,000.00 (or some other amount to be determined by the Legislature or the appropriate administrative tribunal overseeing election expenditure and fund raising) within 24 hours of the receipt or expenditure. While this process will place a burden on the record keeping agents of a campaign it will allow the voters to be aware of what is taking place, financially, the last days before an election takes place, rather than these matters only being reported post-election. Should voters wish to know of this information, having this type of supplemental pre-election reporting requirement will result in a more informed electorate.

Judge Deborah Thomas: I fully support the recommendation that individual contributors to the cost of all Supreme Court campaign advertising be publicly identified.

Justices David Viviano and Brian Zahra (joint response): The question you pose is a policy question that should be addressed to the Legislature, not jurists. As you undoubtedly recall, legislation was recently enacted in Michigan to make it clear that the disclosures you favor are not required by Michigan law. (See 2013 PA 252.)

Regardless of our personal views on the subject, the fact remains that neither we nor the court on which we serve has the power to require third-party donors - those who do not make contributions to any candidate's campaign - to be made public. Moreover, there are potential First Amendment questions related to the requirement that all such information be made public. (See, e.g. NAACP v. Alabama, 374 US 449 (1958) (recognizing that compelled disclosure of affiliation with groups engaged in advocacy may constitute a restraint on freedom of association in violation of the First Amendment). For these reasons, we decline to answer your question.

Note: Kerry Lee Morgan's response was edited as to length. The response of Justices Viviano and Zahra was edited as to the transmission of the question. No response was received from Doug Dern.

Members of the Judicial Selection Task Force who joined in asking the question of the candidates were Loretta M. Ames, Peter L. Dunlap, J. Kay Felt, Robert F. Garvey, Hon. H. Lynn Jondahl, Hon. Marilyn J. Kelly, Hon. Olivia P. Maynard, Hon. John D. O'Hair, Edward M. Parks, Richard L. Robinson, Paul A. Rosen, Hon. James L. Ryan, Hon. John J. H. Schwarz .

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