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Justices for sale

The trouble with 'dark money' and its effect on the state’s judicial elections



When it comes to special interests spending big money in an attempt to influence the outcome of elections, nothing is more disturbing than what just occurred in the Michigan Supreme Court race.

Thanks to Rich Robinson, director of the nonprofit Michigan Campaign Finance Network, we have at least some clue about how much so-called "dark money" went into affecting how we voted. 

Based on the final campaign reports filed with the Michigan Bureau of Elections before Election Day, candidate committees raised some $3.2 million. The two major political parties, in a race adorned with a nonpartisan fig leaf, and a few political action committees, reported expenditures of $679,000. Which means that the total amount reported to the state (so far) by those attempting to sway the opinion of voters when they went to the polls to select our state Supreme Court justices was a bit less than $4 million.

That in itself is a lot, but it pales in comparison to the $11 million the state's Republican and Democratic parties — along with a conservative, Washington D.C.-based nonprofit called the Judicial Crisis Network — ponied up to pay for television ads that didn't have to be reported to the state.

The reason that spending didn't have to be disclosed to the state is because those commercials were supposedly "issue" ads that didn't "explicitly" advocate a vote for or against a particular candidate.

As a result, says Robinson, of the $15 million that his group could document had been spent on state Supreme Court races, at least 75 percent isn't disclosed to the state. Moreover, it is impossible to trace the actual source of all that money back to its roots.

"I'm saying that the party names, and the name of Judicial Crisis Network, are labels on the outside of black boxes. We don't know the identities of the donors who stuffed the money into those black boxes," explains Robinson.

Part of the problem is that there's no telling exactly how big that box is. Robinson and his group were able to obtain info about how much was spent on ads and who was buying them from the state's television broadcasters and cable systems, which are required to keep records on this sort of spending and disclose it to the public. 

Radio stations are required to do the same, but Robinson says his group just doesn't have the resources to track down who spent what on radio ads. And then there's that flood of mailers that hit voters before the election. 

There's no way to find out how much was spent on them. 

It is disturbing that what Robinson calls "dark money" like this plays any role at all in politics, but it is beyond disturbing that it is being used in an attempt to sway the outcome of a judicial election, he says.

What's particularly ludicrous is an interpretation of state law that says as long they don't say straight out "vote for this candidate" or "vote against that candidate" such ads are considered to be "issue-oriented" and therefore not subject to campaign disclosure laws.

The basis for that interpretation dates back to 2004 when, following passage of the McCain-Feingold campaign finance reform act by Congress, then-Michigan Secretary of State Terri-Lynn Land issued an "interpretive statement" that declared only ads that explicitly urged a vote one way or another on a candidate would be subject to state disclosure laws.

Since then, Robinson points out in a recent op-ed piece for the Free Press, the U.S. Supreme Court has decided that "authentic issue advocacy urges viewers to take a position on an issue and contact a public official who can act on the matter. That is why you see so many ads that give you a candidate's phone number and tell you to call the candidate — so you can act as a grassroots lobbyist."

The problem with applying that sort of standard to state Supreme Court candidates, argues Robinson, is that Michigan law prohibits any lobbying of judges.

"One could make an argument that a legislator or executive office holder has a legitimate relationship with a particular interest group," Robinson tells the Hits. "But there's no legitimate relationship between judges and interest groups. Judges are supposed to serve only the law."

We guess the emphasis there should be on the word supposed. It takes no great leap to determine that if special interests are bankrolling a judge, then that judge's prime focus will be to satisfy those special interests.

"One has to make the assumption that the people spending all this money are rational economic actors," Robinson says, "and that they are doing what they do to serve their special interests."

Here's another twist Robinson points out: The U.S. Supreme Court has ruled that judges should not hear cases involving major campaign contributors. "But if you don't know who the contributors are, how is anyone supposed to be able to object?" Robinson asks.

This isn't a new concern. Robinson reports that, since 2000, "candidate committees have raised $19 million. Undisclosed television advertising about those candidates by the parties and nonprofit corporations has totaled $32 million."

There's good reason to pour so much money into Supreme Court races: It's very cost-effective. 

"I've heard it said by both sides of this campaign that it's easier to count to four than 76," says Robinson.

By that he means four votes gives you a majority on the state Supreme Court; it takes 76 votes to have a majority in the state House and Senate.

As Robinson pointed out at the end of October, "Michigan's Supreme Court election appears to be headed for the notorious distinction of being the nation's most expensive and least transparent judicial election campaign in 2012."

It appears that's exactly how things played out.

In April, the Michigan Judicial Selection Task Force — a group that included former U.S. Supreme Court Justice Sandra Day O'Connor, state Supreme Court Justice Marilyn Kelly, U.S. Appellate Court Judge James L. Ryan and Wayne State Law School assistant professor Justin R. Long — found:

"Too often special interest groups hide behind innocuous-sounding names that obscure their real purpose in funding supreme court-campaign advertisements.  If corporations, unions, trade groups, political parties, or private persons wish to fund advertisements, they are free to do so. But they should inform the public of their true identity so that voters can weight the messages in context."

Among other things, the task force also recommended: establishment of a nonpartisan citizens' campaign oversight committee that would "check the factual claims in advertisements and denounce false, misleading, or destructive messages. The honesty, respect, and fairness that citizens expect from their courts should also mark campaigns for judicial office."

That, obviously, hasn't happened.

So, is it time to explore another task force recommendation — the one that urges a constitutional amendment that changes the way state Supreme Court justices are selected? 

At least some on the task force said they'd like to see a new system put in place where a nominating commission proposes qualified candidates, with the governor making appointments from that list. 

The task force pointed to Arizona as a good model to follow. There, non-lawyers form a majority on the nominating commission, with open hearings that include public participation.

It's an idea certainly worth exploring.

Otherwise, every time our supremes make a ruling, we're left to wonder if justice is being served, or just the highest bidder.

News Hits is written by Curt Guyette. Contact the column at 313-202-8004 or


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