A Victory for Impartial Justice

"Issue" disclosure loophole may undermine effect in Michigan

Statement of the Michigan Campaign Finance Network

The U.S. Supreme Court decision in the case of Caperton v. Massey Coal Company establishes that extraordinary campaign spending to support the election of a judge can create an unconstitutional probability of bias that requires the judge to disqualify himself from a case involving his campaign’s financial supporter.

The U.S. Supreme Court noted that the Caperton case was extreme, but “because the States may have codes with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard’s application rare.”

This decision underscores the wisdom of the Michigan Supreme Court’s ongoing effort to establish workable recusal standards for itself that will consider extreme campaign spending of the sort that has become a regular feature of contemporary Michigan Supreme Court election campaigns.

However, rigorous recusal standards for the Michigan Supreme Court will be undermined by the failure of Michigan’s Campaign Finance Act to require disclosure of contributors to organizations such as the Michigan Chamber of Commerce and the state’s political parties that sponsor candidate-focused “issue” advertisements that seek to define judicial candidates’ records, qualifications and suitability for office without explicitly exhorting a vote for or against a candidate. Without knowing who contributes to the committees that sponsor candidate-focused issue ads, it will not be clear when a motion for recusal rightfully should be filed.

The decision in the Caperton case provides an important buttress for citizens’ due process rights to an impartial judicial hearing. However, Michigan legislators must address the shortcomings in our campaign finance disclosure regulations if this protection is to have its full effect.

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