A Better View: No anonymous friends of the court

By Gary Maveal

Should the names of persons making financial contributions to fund advertisements in Michigan judicial elections be required by law to be disclosed? Many people who think so are surprised that the law doesn’t yet require it.

Last month, the State Bar of Michigan urged Secretary of State Ruth Johnson to issue a declaratory ruling that U.S. Supreme Court cases demand fuller disclosures — for both the voting public and litigants who appear before judges who benefit from campaign donations.

The Michigan Campaign Finance Act (MCFA) defines a reportable expenditure as a payment or donation “in assistance of, or in opposition to, the nomination or election of a candidate, or the qualification, passage or defeat of a ballot question.” MCL 169.206(1). But the statute excludes any spending for “communication on a subject or issue if the communication does not support or oppose a ballot question or candidate by name or clear inference.” MCL 169.206(1)(a) and (2)(b).

A 2004 interpretation by the Michigan Secretary of State held that the MCFA definition of “expenditures” didn’t cover donations for so-called “issue ads.” We all recall the issue ads are those that dominated the campaign for our Supreme Court last year.

Like the memorable “sleeping judge” ads in 2008 targeting Justice Clifford Taylor, 2012 brought rafts of television and newspaper ads praising Supreme Court candidates as protectors of families — and others denigrating them as defenders of terrorists.

The U.S. Supreme Court cases
The State Bar cites three cases by which the high court has rendered the MCFA as interpreted since 2004 inadequate to guarantee litigants a fair and impartial judge.

• FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007). The Supreme Court reviewed regulations of issue ads asking voters to contact their U.S. Senators and vote against filibusters of federal judicial nominees. It held the regulations unconstitutional as applied to the non-profit that had challenged them as frustrating its efforts at informing public officials on policy.

The State Bar argues that such efforts at issue advocacy have no legitimate role in the election of judges. In its comment on the State Bar request, the Michigan Campaign Finance Network says flatly, “Michigan judges are not lobbyable officials.”

• Caperton v. Massey Coal Co., 556 U.S. 868 (2009). The Court considered a donor (Massey’s CEO) who made spent $3 million on behalf of a candidate for the West Virginia Supreme Court — while Massey had a major case heading to that court. The successful candidate presided on the appeal, refused recusal, and ruled in Massey’s favor.

The Supreme Court held that the Due Process Clause required review of the recusal issue by an objective standard of the existence of actual bias. It concluded that a serious risk of actual bias exists “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” The Court held Massey’s CEO was such a person and reversed the judgment.

• Citizens United v. FEC, 558 U.S. 310 (2010). Addressing a case involving a documentary film critical of then-Senator Hillary Clinton, the Court held that political spending to support individual candidates constitutes a form of protected speech under the First Amendment, and the federal government cannot deny corporations or unions the right to spend.

Justice Kennedy wrote the majority opinions (5-4) in both Caperton and Citizens United. He squared their results by emphasizing that disclosure of donors was a sufficient prophylactic measure. In Citizens United, he wrote that the “remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge…Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.”

Most striking is that eight justices concurred in the following statement by Justice Kennedy:

“The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

The State Bar argues these cases dictate the Secretary of State revisit the 2004 exemption of issue ads in judicial campaigns. In the wake of Caperton, the Michigan Supreme Court amended MCR 2.003 to incorporate its grounds as a basis for disqualifying any judge. However, the Bar argues that without mandatory disclosure under the MCFA, litigants lack the means to mount challenges that can demonstrate bias.

Other Calls for the Change
In 2012, the Michigan Judicial Selection Task Force made updating the MCFA its primary recommendation. Co-chairs Justice Marilyn Kelly and Senior U.S. Circuit Judge James L. Ryan distilled the views of 22 leaders of the bench, bar, and public on issues attending judicial selection. Their recommendations have yet to be implemented. In addition, former Justice Elizabeth Weaver’s new book, “Judicial Deceit,” also urges that full disclosure of campaign contributions is essential to restore legitimacy to the Michigan Supreme Court.

Justice Sandra Day O’Connor has also called for states to eliminate so-called “dark money” from judicial campaigns. Having retired in 2006, she has publicly dissented against the ruling in Citizens United.

Many studies have addressed the problem of corporate influences on the judiciary.

A 2013 article by Prof. Joanna Shepherd of Emory Law School for the American Constitution Society for Law and Policy documents the growth of money in judicial campaigns across the U.S. and finds evidence of its influence on judges. “Justice at Risk” finds a relationship between business contributions on behalf of judicial candidates and pro-business rulings by those same candidates.

The State Bar’s request to the Secretary of State has brought comments pro and con. Supporters of requiring disclosures include the Michigan Retired Judges Association, the Michigan Association for Justice, the Michigan Campaign Finance Network and the Michigan Defense Trial Counsel. Opponents include the Center for Competitive Politics, the Michigan Chamber of Commerce, and the Foundation for Michigan Freedom.

Conclusion
The U.S. is the only nation in the world that elects judges. Such exceptionalism must surely carry safeguards to ensure their independence from political considerations.    

Michigan lawyers and judges should be alarmed by even the slightest danger that campaign moneys may consciously or unconsciously sway a judge’s decision-making. Mandating disclosure of the source of funds for judicial campaign issue ads is a necessary step toward transparency and checking potential influences on our judiciary.
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Gary Maveal is a professor at the University of Detroit Mercy School of Law and a member of the Board of the Directors of the Michigan Lawyers Chapter of the American Constitution Society for Law and Policy.