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:
n 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?
n 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?
n 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?
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 Johnson rule? Doing the right thing may not be easy for her. “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.
Phil Power is a former newspaper publisher and University of Michigan Regent. He is founder and president of The Center for Michigan, a centrist think-and-do tank. The opinions expressed here are his own. By email at: firstname.lastname@example.org.