News and analysis from The Center for Michigan • http://thecenterformichigan.net
©2014 Bridge Michigan. All Rights Reserved. • Join us online at http://bridgemi.com

Original article URL: http://bridgemi.com/2013/09/secret-money-in-judicial-campaigns-is-a-scandal/

Phil's column

Phil Power is founder and chairman
of the Center for Michigan.

Secret money in judicial campaigns is a scandal

How would you feel if you had a case in court — and suddenly realized that the judge’s campaign for office had been generously and secretly backed by the party opposing your lawsuit?

“Shocked, outraged and mad as hell” is probably an understatement! Well, now for the really shocking part. In Michigan that can actually happen. It is entirely possible for donors to make big contributions to judicial campaigns in secret.

Those who pony up big bucks in judicial races seldom do so just for the pleasure of helping elect the best legal mind possible.

Usually they are greasing the wheels of justice with something more specific in mind, especially if they can get it done anonymously.

Consider the implications of just three real-life incidents:

Last fall an anonymous somebody (a disgruntled litigant? A lawyer with a case? ) spent $2 million on misleading attack ads trying to defeat an incumbent Oakland County Circuit Court judge.

That didn’t work, but $2 million is hardly chump change. And think what kind of “evenhanded” justice might have been handed out by the recipient of that secret $2 million if they had won?

Even the judges themselves have gotten into the act. The Center for Michigan’s Bridge Magazine reported last month that Michigan Court of Appeals Judge Henry Saad last year contributed more than half of his $151,441 annual salary to Republican candidates and organizations. How will a Democrat who appears in Judge Saad’s courtroom feel about the impartiality of justice there?

Finally, the Michigan Campaign Finance Network, a respected nonpartisan outfit which tracks such things, found that more than $13 million of the total $18 million spent in last year’s elections for Michigan Supreme Court was secret “dark money.”

Who did the spending?

Nobody knows.

But we do know it is a scandal. And it makes ordinary folks wonder whether the fix is in when it comes to the Michigan judicial system. Rich Robinson, the head of the Michigan Campaign Finance Network, told me that Michigan is the “worst in the nation, both in the amount of money spent on judicial races and in the high degree of secrecy surrounding those expenditures.”

There are some rays of hope. The State Bar of Michigan deserves great credit; earlier this month it urged Secretary of State Ruth Johnson to issue a ruling requiring public identification for anyone who contributes money to any judicial campaign.

The Bar felt this was essential to avoid “the shadow that secret judicial electioneering casts on judicial impartiality.”

The problem goes back to 2004, when then-Secretary of State Terri Lynn Land ruled that contributions to so-called “issue ads” in Michigan judicial elections could be kept secret. She said that only ads that include words like “vote for” or “vote against” a particular candidate had to have their funders publicly disclosed.

Ads without those words – wink-wink, nod-nod – purportedly discuss only “issues” in campaigns. Again, there’s no law requiring those who pay for such ads to disclose their contributions.

How will she rule? Doing the right thing may not be easy for Johnson. “It will take a real act of courage for her to open up the system,” Robinson told me, “especially since two thirds of the contributions to her own campaign (in 2010) were dark money.”

But this secretary of state has, in the past, suggested that the secrecy surrounding campaign contributions and Michigan’s lax reporting requirements ought to be cleaned up.

Polls also suggest Michiganders overwhelmingly are opposed to secret campaign contributions.

Secretary of State Johnson’s staff says her office will issue a proposed response to the State Bar request in 45 days and a final ruling in 60-90 days. We will be waiting. Perhaps alert readers might want to comment when her proposed response is issued.

Former newspaper publisher and University of Michigan Regent Phil Power is a longtime observer of Michigan politics and economics. He is also the founder and chairman of the Center for Michigan, a nonprofit, bipartisan centrist think–and–do tank, designed to cure Michigan’s dysfunctional political culture; the Center publishes Bridge Magazine. The opinions expressed here are Power’s own and do not represent the official views of the Center. He welcomes your comments at ppower@thecenterformichigan.net.

11 comments from Bridge readers.Add mine!

  1. Mike R

    My commendations to Bridge for reporting on this scandal, and to the State Bar of Michigan for taking a position against secret money. I have been a licensed Michigan attorney for over 32 years and, although the overwhelming majority of judges strive mightily to be fair and follow the law, I have seen the influence that even the relatively small, legally-limited campaign donations by attorneys can have on some judges and judicial candidates. It is typically subtle and benign, ranging from an acknowledgment when the donor comes into the courtroom, to what might be termed a “benefit of the doubt” decision in favor of the donor where the law and other factors are evenly balance between the litigants. If such small donations occasionally can have a mild, indirect influence, it is clear to me that the quantum growth in donations by unnamed sources is most certainly having a direct, major influence on at least some judges and candidates. Even if only one judge or decision is swayed, it taints the whole system with the perception that justice can be bought and the rich are favored. There are enough opportunities for such perception when wealthy litigants appear to get swifter trials, better plea bargains, and more favorable outcomes; we don’t need the scandal of secret contributions as icing on the distasteful cake.

    1. Duane

      Mike,

      Can you help me better understand what the scandal is? Mr. Power seems to be upset that judges in the systmen maybe affected by campaign contribution but he never offers any cases where that has happened. He has even acknowledge when significant campaign dollars went against how he thought it should it did not change his desired results. So I wonder is the scandal a potential for judges to be corrupt or should be the actual cases of corruptions?

      As you have said the cases of corruption are rate and yet Mr. Power does not make that distinction, he seems to suggest all who recieve campaign contribution are corrupt by that money.

      Mr. Power condemns the anonymity of contribution and then condmens a person that is open and public about his contribution. Does this seems a bit inconsistent, from an attorney’s prespetective?

      Mr. Power indentifies only “a disgruntled litigant? A lawyer with a case?”, do you think that those are the only people who contribute or could it be that there are people, including attorneys who are knowledgable in the system, that may donate to campaigns of judicial candidates that they feel do a quality job of ruling from the bench?

      It seems that Mr. Power would like to see the voting public removed from the selection process of judges. It is almost like he feels the is not capable and should turn it over to an elite group of ‘experts’ who may not have the same sense of public issues as the broader public. This inlight of his own example where the voting public made the choice inspite of the shameful money being spend in opposition to the outcome. Do you agree that the voting public is not capable of making good choices and only an ‘elite’ should be allowed to select our judges?

      Not having you extensive knowledge of the judicial system, maybe you could enlighten me if the a recent Justice that was convicted of corruption had her candidancy vetted by jusidical system ‘experts’ and if any of them were concerned about the risk of her breaking the law? If not, then it would seem that the ‘experts’ and the voting public were of similar inability of seeing into a person and determining their corruptability.

      I wonder, recongizing you have never been directly involved with a corrupt client but working in a system that has a purpose of convicting those types of people, if your experience is consistent with Mr. Power’s view that money corrupt or have you seen it that people are the ones chosing to be corrupt, even for things other than money?

  2. Matt

    Maybe the problem is the whole idea of having elections for so many offices, positions and judges? Why doesn’t the governor appoint his own attorney general or Sec of State? Along with judges? When you consider how few voters can even name their US senators and US rep or know anything about them, is it any surprise that they throw out the supposed “sleeping judge ” for a jailbird judge? Do you really think we’re going to get quality people and good results out of our current system where even relatively informed people don’t have a clue who they are voting for? “Dark money” or not our system stinks!

    1. Maryanne

      Appointing every judge, senator or other public official reminds me of the many appointments being made during our President’s terms. It is the duty of American citizens (Michigan citizens) to learn about the people who represent us and not to vote blindly. If you want a monarchy or worse, take away our VOTING PRIVILEGE. Poor suggestions, Matt.

      1. Matt

        Are we talking real world or your dreamland? This is why we are a republic and not a democracy.

  3. Roxann

    Sadly, many of Michigan’s judges are owned by big business and insurance companies. Michigan residents, not aware of who is behind these campaigns, pay the price when they are injured and can’t present a lawsuit because of restrictions these judges have ordained. Or they are unable to be awarded an amount of money that might be deserved because of malpractice caps. It is shameful!

    I will keep my eyes on our Secretary of State.

    1. Duane

      Roxan,

      Is it all judges or are there some specific ones that come to mind?

      Mr. Power suggests that is all that take campaing contribution, since I don’t follow the Courts that much so only see the headline cases, I wonder if it is so broard that it includes all of them,

      1. Roxann

        Justice Brian Zahra, Justice Robert P. Young, Justice Stephen J. Markman and Justice Mary Beth Kelly for starters.

        1. Duane

          Roxann,

          Are there any particualr case? It seems Justoce Zahra has been on the court so short a time that there have been any particular case or even less a pattern of his ruling so I wonder how you were so quick to glee that he has been corrupted by campaing contributions?

  4. Rich Studley

    After years of turning a blind eye to violations of Michigan’s Campaign Finance Act by attorneys, the State Bar Association’s recent proposal to censor the free speech of other groups is a partisan attempt to turn back the clock to the days when trial lawyers, union bosses and their hand-picked candidates were the only individuals & groups involved in judicial campaigns. Issue advocacy ads increase voter participation in elections by informing the general public about important subjects. All MI Chamber issue ads clearly state “paid for by the Michigan Chamber of Commerce”. The Bar Association’s plan is bad public policy and should be rejected because it would limit free speech and hinder the right of association.

  5. Martha Toth

    Perhaps I am paranoid, but it did not escape my attention that, soon after the State Bar Association asked for a ruling on this, state legislators started making noises about applying the Right to Work provisions to the Bar. This seems ridiculously inappropriate to me, but its point was, I think, to send a message.

    I would like to see full disclosure (and immediately, on line) of all political donations. We may have few limits on them, but voters at least deserve to know who is buying influence. I am not holding my breath for state or national legislators to require this, though — for which they should be ashamed. They certainly urge “transparency” when it suits their purposes.

    Rich Robinson makes a very good case for this narrow challenge re the judiciary. Since “issue” adds are meant to lobby (“Call So-and-So and tell him….”), and judges are by definition not to be lobbied, those ads can ONLY be aimed at persuading voters to vote for or against candidates. Sounds open-and-shut to me.

Leave your comment...

Your email address will not be published.

Invest in non-partisan journalism.

Donate to The Center for Michigan. Find out why.