2012 Supreme Court race was state's most expensive, least transparent ever

Just 25% of $18.6M spent was reported to the State

LANSING - Michigan's 2012 Supreme Court election campaign was the costliest and least transparent in state history, according to records compiled by the nonpartisan Michigan Campaign Finance Network (MCFN). Just $4.7 million out of the $18.6 million in spending documented by MCFN - 25.4 percent - was reported through the State campaign finance disclosure system.

The candidate committees of the six major-party nominees reported raising $3,442,367. The state political parties and a small number of political action committees (PACs) and SuperPACs reported making independent expenditures in the amount of $1,276,176. Overall spending reported to the Michigan Department of State totaled $4,718,543.

Records compiled by MCFN from the public files of the state's television broadcasters and cable systems showed gross sales of $13.85 million for advertisements about the Supreme Court candidates that were not reported to the Department of State. Those advertisements were purchased by the Michigan Republican Party ($6.67 million), the Michigan Democratic State Central Committee ($6.17 million) and a DC-based nonprofit corporation called Judicial Crisis Network ($1.02 million).

A 2004 interpretation of the Michigan Campaign Finance Act published by the Department of State says that such advertisements are not campaign expenditures unless they contain words of "express advocacy," such as, "vote for," "vote against," "support" or "defeat." Since the advertisements are not treated as campaign expenditures, the contributions to the political parties and interest groups that pay for the advertisements are not disclosed either.

"This anachronistic interpretation of the Campaign Finance Act means that three-fourths of the money spent in this campaign was off the books," said Rich Robinson of the Michigan Campaign Finance Network. "The citizens of this state have no way to find out who was behind $14 million in dark money that was spent in the 2012 Supreme Court campaign."

There was additional spending in the campaign that MCFN has been unable to document with precision. For example, MCFN has collected thirteen different direct mail pieces from the Michigan Republican Party about Supreme Court candidates. The party has reported that it made independent expenditures of $725,000 through Arena Communications for direct mail supporting unnamed candidates. It is not possible at this time to ascertain how much of the reported direct mail spending was related to the Supreme Court race.

Although the dark money in 2012 was a record, large volumes of unreported spending have occurred in every Michigan Supreme Court campaign since 2000. While spending by the candidate committees and reported independent expenditures has totaled $26.2 million since 2000, unreported spending for television "issue" advertising has totaled $34.7 million during that time. That yields an overall disclosure rate of just 42.7 percent.

Bridget McCormack, a Democratic Party nominee, was the top vote-getter in the 2012 contest for two eight-year terms on the Michigan Supreme Court. Incumbent Justice Stephen Markman, a Republican Party nominee, won reelection for an eight-year term.

Incumbent Justice Brian Zahra, a Republican nominee who was facing the electorate for the first time as a Supreme Court candidate, won a two-year term to complete the term to which he had been appointed in January 2011 when former Justice Maura Corrigan resigned from the court. He will be on the ballot again in 2014 if he seeks to remain on the court.

Dark money also infested a trial court race

Michigan's 6th Circuit Court campaign in Oakland County also was dominated by dark money in 2012. While the candidate committees raised just more than $725,000, two DC-based nonprofit corporations spent $2 million for television ads attacking one of the incumbents and touting the two challengers' "plan for the court." Like the Supreme Court campaign, nearly three-fourths of all campaign spending cannot be traced to its sources.

Judicial Crisis Network, which paid $1 million for ads about a Supreme Court candidate, spent $958,000 in the 6th Circuit Court campaign. Americans for Job Security spent $1,130,000 for the Oakland County race.

Ultimately, the dark money campaign was unsuccessful. All five incumbent judges - Leo Bowman, Phyllis McMillen, Denise Langford Morris, Wendy Potts and Michael Warren - won reelection to the bench, while the two challengers with the secret supporter finished far behind.

"In Citizens United v. Federal Election Commission, the Supreme Court made it absolutely clear that it is constitutionally permissible to require disclosure of the sources behind all this dark money. It's long overdue for the Michigan Legislature to act on behalf of the citizens' right to know whose money is driving our state campaigns," said MCFN's Robinson.

Press Release 2013 News