Dark money and justice

By Rich Robinson

This commentary first appeared in edited form in the Detroit Free Press under the title, "Who paid for those Michigan Supreme Court ads?"

Michigan earned national election notoriety in 2012. Our Supreme Court campaign appears to have been the most expensive, least accountable judicial election campaign in America.

The candidates' campaign committees raised $3.2 million that was reported to the Michigan Bureau of Elections. The political parties and a handful of PACs have reported independent expenditures of $679,000. That is the full extent of spending reported in the State's campaign finance disclosure system: less than $4 million.

The State's reporting system does not have any record of some $11 million worth of Supreme Court television advertisements that were sponsored by the state political parties and a DC-based nonprofit 'social welfare' corporation called Judicial Crisis Network. The records for that spending can be found only in the public files of the state's television broadcasters and cable systems. There are no public records of the donations that paid for those ads.

That is worth emphasizing: Of the $15 million of documentable spending, just over 25 percent can be attributed to identifiable donors; 75 percent cannot.

Actually, it's worse than that. For example, the Michigan Republican Party didn't report any independent expenditures for direct mail. I know they sent eight glossy pieces about Supreme Court candidates to my house, but the U.S. Postal Service doesn't have a public file where I could go to find out how much they spent. The $15 million I can document is a conservative estimate of what was spent.

The reason this matters is that unaccountable spending undermines the presumption of impartial justice. No one has a real incentive to spend big in a Supreme Court campaign like an interest with a high stakes case in the appeals pipeline. Judges aren't supposed to hear cases involving their major donors. But how can a party know when a recusal motion is warranted if millions of dollars in spending and contributions are not disclosed?

This is not what blind justice is supposed to mean.

Unaccountable spending in Michigan Supreme Court campaigns is not new. Since 2000, candidate committees have raised $19 million. Undisclosed television advertising about those candidates by the parties and nonprofit corporations has totaled $32 million. The campaigns behind both parties' nominees work the same way.

How can that be?

The answer is not found in the Michigan Campaign Finance Act, but in an interpretive statement by the Michigan Department of State. In a 2004 letter, the Department said that only communications that were express advocacy - that explicitly exhorted a vote for or against a candidate - would be considered campaign expenditures. All other communications would be considered "issue" advocacy. Issue advocacy doesn't have to be reported to the Department, and neither do the contributions that pay for it.

This ruling was issued despite the fact that neither the words, nor the concepts, "express advocacy," or "issue advocacy," are in Michigan's statute.

There may have been a time when it was justifiable for the Department to rely on the notion of express advocacy to interpret the act with sufficient clarity while avoiding over-breadth. That time has passed. Since that interpretative statement was written there have been major changes in U.S. Supreme Court campaign finance jurisprudence. In Federal Election Commission v. Wisconsin Right to Life, the court recognized that there is a functional equivalent of express advocacy.

The court further noted in FEC v WRTL that authentic issue advocacy urges viewers to take a position on an issue and contact a public official who can act on the matter. That is why you see so many ads that give you a candidate's phone number and tell you to call the candidate - so you can act as a grassroots lobbyist.

But that definition shouldn't accommodate the political parties' ads about Supreme Court candidates. Under Michigan law, judges are not lobbyable officials. Thank goodness.

Furthermore, the court said, authentic issue advocacy takes no position on a candidate's character, qualifications or fitness for office. But the Michigan parties' Supreme Court ads concern nothing but the candidates' character, qualifications or fitness for office.

It is impossible to see any remaining legitimacy in the Department of State's letter as a controlling interpretation of what is, or is not, a campaign expenditure.

We've been living with willful blindness instead of transparency and accountability in Supreme Court campaigns for more than a decade. The issue is not limiting speech. Those with the will and the way to spend $1 million in a campaign are free to do so. But they must be made to be accountable for it.

Press Release 2012 News