Where's the ethics platform?

By Rich Robinson

This Commentary first appeared in Dome Magazine.

It seems awfully early, but people I talk with are already tired of specious claims in political ads and big-footin' independent spenders whose finances are unknown, or Byzantine if they are reported.

So let's think about something uplifting: candidates' ethics.

People I talk with are concerned about ethics. People on the left and right despise crony capitalism. Nobody wants public policy to be for sale. Nobody wants corruption.

Pretty much everybody understands that there is one sure inoculation against corruption: transparency.

Four years ago when Rick Snyder was a largely unknown, self-funded gubernatorial candidate taking on some of the most prominent Republican politicians in Michigan, his campaign published an ethics platform. Its headline read, "Create a Culture of Ethics in Michigan's Government."

It was an important tool that Rick Snyder used to differentiate himself from his opponents. It mattered to the candidate and it mattered to the voters.

I wish that Governor Snyder's ethics had remained consistent with candidate Snyder's. They didn't. They "evolved" in some very fundamental ways.

The instance that mattered most to me was a campaign finance issue: Whether political ads about the attributes and deficiencies of candidates for office should be treated as campaign expenditures, and disclosed as such.

That question is a huge deal in Michigan politics. In every major statewide campaign since 2006, the majority of spending was not reported to the Bureau of Elections. Independent committees paid for advertising about the candidates that managed not to use the word, "vote," and they didn't report their activity.

This phenomenon reached its nadir in the 2012 Supreme Court campaign when $14 million, or 75 percent of all spending, was off the books. More than 90 percent of that dark money was spent by the two political parties.

That level of dark money spending in a judicial campaign is an existential threat to impartial justice. The 2012 campaign was the second election cycle in a row where Michigan had the most expensive, least transparent judicial campaign in America. That is a national disgrace.

The State Bar of Michigan recognized this threat to our shared confidence in the impartiality of the judiciary. It also recognized that there was latitude to require disclosure that was not being exercised in the prevailing interpretation of our campaign finance law.

The authors of the statute wisely recognized that you don't have to use the word, "vote," to make a campaign expenditure. Their definition covered "clear inference" of support or opposition to a candidate. But that wisdom was being overridden by an unnecessarily narrow bureaucratic interpretation that was allowing half the money in our political campaigns to be spent off the books.

The State Bar asked Secretary of State Ruth Johnson to correct that flawed interpretation for judicial campaigns, because it was having an adverse effect on the practice of law in Michigan. The Secretary's response said that she could not create a special rule for judicial campaigns. But she recognized a larger problem.

"In a country where free speech is protected, these ads are part of the political landscape and we can't stop them - but when they try to influence an election, we can make sure the public knows who is paying for them," Secretary Johnson said.

The Secretary of State proposed an administrative rule to implement the law so that phony "issue ads" about candidates would have to be disclosed, and so would the donors behind them.

The Republican Party's top legal advisors didn't like that plan, so they hastily provided the Senate Elections Committee with an amendment to the definition of a campaign expenditure. The amendment required the presence of the magic words of "express advocacy" from Buckley v. Valeo. That was a deliberate effort to foreclose Secretary Johnson's proposed administrative rulemaking.

After minimal intra-party thrashing, the bill was passed by both chambers of the Legislature, without a single Democratic vote.

The bill still had to be signed into law by the governor, and it ran contrary to Rick Snyder's 2010 ethics platform. There he had said, "All electioneering communications - broadcast printed, and telephonic - that feature the name or image of a candidate for public office or ballot initiative should be considered expenditures subject to appropriate disclosure requirements."

In the end, the governor said he had evolved on this subject, It was announced on the Friday afternoon between last Christmas and New Year that he had signed the bill into law.

I'm sure you understand the significance of that timing. His flacks were burying the story of his evolved ethics.

There are other ethics matters worth discussing.

Within five weeks of taking office, Governor Snyder had established a 501(c)(4) social welfare corporation called the NERD Fund. It raised some $2 million from undisclosed sources and paid the contract of a key Snyder Administration advisor, Rich Baird. It also paid for presumed security modifications to the governor's personal residence.

After acknowledging criticism of the optics of that arrangement, the governor closed down the NERD Fund and established a successor nonprofit corporation. His successor corporation reports its donors but, to cite one prickly transaction, it has accepted money from the Firekeepers Development Authority, a gaming interest.

A gaming interest can't contribute to a state political committee, but donating to the governor's social welfare corporation is legal. But is it really necessary to milk the gaming industry to conduct "constituent outreach?" How far does this thinking go?

There are also noisy complaints about nepotism in a state contract involving the governor's cousin. It may well be that the real scandal there was the budget boilerplate restricting that contract. But George Snyder's business partner in the deal, Haworth, is a significant donor to the governor's 527 committee: the Governor's Club. That's more bad optics. The e-mail traffic around that case shows a level of concern that's hard to imagine for some Main Street vendor.

Wouldn't it be worth knowing how Rick Snyder feels about public ethics now? Shouldn't we know where Mark Schauer stands on public ethics?

Shouldn't ethics be an important question for all candidates for public office?

It sounds way more interesting to me than the TV-ad spam-o-tron.

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