Why ‘dark money’ matters when you stand before a Michigan judge

The State Bar of Michigan this month urged Secretary of State Ruth Johnson to require everyone who contributes money to Michigan judicial campaigns to be publicly identified. It said a 2004 decision by then-Secretary of State Terri Lynn Land allowing those who bankroll so-called judicial “issue ads” to remain anonymous undermines the integrity of the judicial system and conflicts with more recent U.S. Supreme Court decisions requiring such donors to be identified.

Issue ads typically attack a candidate without endorsing an opponent.

The State Bar, which represents 43,600 Michigan lawyers and judges, said secret contributions — dark money — prevent judges, litigants and the public from knowing when a judge is being asked to rule on an issue involving a major donor. State Bar President Bruce Courtade said its request for a ruling from Johnson about such ads is designed to add transparency and promote public confidence in the impartiality of Michigan’s judges.

Dark money increasingly is playing a role in Michigan judicial campaigns. Last fall, someone, possibly a disgruntled litigant, secretly spent $2 million on misleading attack ads in an unsuccessful effort to defeat an incumbent Oakland County Circuit Court judge. Dark money also played a role in last fall’s Michigan Supreme Court race.

Johnson’s staff said the State Bar’s proposal would be posted on the department’s website within 48 hours and that the public would be given 10 days to comment. It said the department would issue a proposed response within 45 days and a final response within 60-90 days.

Here’s what Courtade had to say about the issue during an interview with Bridge.

Q. Why is dark money a problem in judicial campaigns?

A. Because it undermines public confidence in the legal system. It can also threaten judicial independence and it can place judges in the awkward position of not knowing when they should recuse themselves from handling a case.

Q. Why should Michigan residents care?

A. Imagine how an average citizen would feel finding out by chance after trial that the judge hearing his case had been supported to the tune of thousands of dollars, or more, by his opponent. Or, if a voter made a decision on how to vote in a judicial election based on a series of seemingly objective advertisements only to find out that the ads were paid for by anonymous donors who really were supporting the other candidate’s position. But in Michigan, with dark money allowed in judicial campaigns, you would never have any way of knowing in either case. The public needs to know who is behind those campaign ads.

Q. What was the “dark money” problem in the Oakland County Circuit Court judicial race last fall?

A. Of the $2.7 million spent in that campaign, $2 million of it came from dark money spent on behalf of two challengers who basically had raised no money that was traceable to individual donors. Their campaigns were financed almost entirely by dark money.

Q. But the challengers lost.

A. Well, that doesn’t mean that what happened there wasn’t frightening or had no potential for real harm. The fact of the matter is that someone or some people — we don’t even know who or how many — were willing to spend $2 million in dark money to try to influence a local judicial race. Over $13 million of the roughly $18 million spent in last year’s election cycle for Michigan Supreme Court was dark money. So obviously, people who are spending that money believe it has influence. And the public does, too, according to a number of polls. Part of the problem with dark money is you don’t know if a big donor to a campaign has already appeared in front of a judge to whom that donor made a significant campaign contribution. A significant part of the problem is that when there is dark money in the amounts were talking about, public confidence in the justice system is undermined.

Q. You’ve asked Ruth Johnson to issue an interpretive ruling on this issue. Is she required to respond to the State Bar’s request and, if so, how much time does she have?

A. She is required to respond in roughly 60 days. The Michigan Campaign Finance Act requires her to at least give us a draft of her response within 45 business days, although I think there’s a provision in the act to extend the 60-day deadline by an additional 30 business days.

Q. You’ve said you don’t want to speculate on what action the State Bar of Michigan might take if Johnson rejects your request. What are the range of potential legal options?

A. We’re confident that the analysis of our request is both compelling and correct, so we’re hoping she will agree with us. But clearly, doing nothing is not an option. Without seeing her response, it’s tough to say exactly what we would do if she doesn’t approve our request. We could envision appealing through the courts or through the Legislative process to make changes to the Campaign Finance Act, or some combination of those two actions.

Q. What about a statewide referendum to force the change?

A. That’s a heavy lift. It’s something I can’t rule out, but I think it would be highly unlikely for the state bar to engage in that.

Q. Why is the State Bar limiting its request to judicial campaigns rather than all campaigns in Michigan?

A. We are limited to advocating on policy issues that impact the practice of law, the administration of justice and access to justice.

Q. You indicated Thursday that opinion polls have shown that more than 90% of the public favors disclosure. What is the source of your information?

A. The Michigan Campaign Finance Network did a poll in March 2009, which showed that 96 percent of Michigan voters were in favor of reporting all sources of spending in judicial campaigns. The New York Times and CBS News had a poll in 2010, which showed that Americans are supportive of full disclosure with 92 percent saying it is important for campaigns to be required by law to disclose how much money they raised, where it came from and how it was used.

Q. You are a Kent County Republican. Have you discussed this issue with conservative and liberal colleagues and judges? How do they feel about the State Bar’s request?

A. They’re overwhelmingly supportive of our position. Our representative assembly which consists of 150 members from around the state — Republicans, Democrats, Green Party and just about every demographic you could think of — voted unanimously in September 2010 to support full disclosure for judicial campaign funding.

Q. Bridge magazine reported last month that Michigan Court of Appeals Judge Henry Saad contributed more than half of his $151,441 annual salary in the 2012 federal election cycle to Republican candidates and party organizations. Some critics believe that Judge Saad’s contributions compromised his ability to be fair and impartial in some situations. Do you agree or disagree with that assessment?

A. The State Bar hasn’t taken position on that issue, so I can’t comment.

Q. Michigan judges aren’t permitted to endorse political candidates. Should their contributions to political candidates or parties be limited or prohibited?

A. I haven’t thought that one through fully. Judges have a First Amendment right to contribute, but I understand the counter arguments.

Q. Is this something the State Bar of Michigan will consider?

A. If the issue were brought to State Bar, I’m sure it would consider it. But it’s not currently anything that is on the agenda.

More information about the proposal is available from the State Bar of Michigan.