Retired justice talks about dark money in judicial races

By Cynthia Price Legal News "When the workings of our government are kept secret from us, we become uncomfortable and suspicious. One big and important secret is where three-quarters of the money being spent on Michigan Supreme Court elections comes from. We have a right to know exactly how much is being spent and who's spending it." These words, delivered in a measured way by former Michigan Supreme Court Chief Justice Marilyn Kelly, outline the challenge posed to democracy by the policy of allowing certain campaign money to be undisclosed. Kelly spoke before the American Inns of Court Gerald R. Ford Chapter on Monday, Nov. 4, at Thomas M. Cooley Law School's Grand Rapids campus as part of the "Views from the Bench" series the chapter is offering for its 2013-2014 meetings. The so-called "dark money" is of deep concern to Kelly, the Judicial Selection Task Force she co-chaired with U.S. Court of Appeals Judge James L. Ryan, Sixth Circuit, and to the State Bar of Michigan. SBM Executive Director Janet Welch and the Immediate Past President Bruce Courtade of Rhoades McKee, were in attendance. The composition of the Judicial Selection Task Force, whose honorary chair was former U.S. Supreme Court Justice Sandra Day O'Connor, was completely bipartisan. The State Bar of Michigan Representative Assembly, which voted to support full disclosure in 2010, is as well. As Kelly put it, "This is truly a bipartisan or if you'd like a nonpartisan issue." The Judicial Selection Task Force's top recommendation reads: "CAMPAIGN FINANCE RE-FORM: First, the Task Force urges that supreme court campaign advertisements fully disclose the source of their funding. 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 weigh the messages in context." Kelly told the group of about 50 people who came to the Inns of Court meeting about the history of this dark money policy. "The reason this peculiar interpretation has come into being is that in 2004 then-Secretary of State Terri Lynn Land ruled that 'issue ads' are not covered by the Michigan Campaign Finance Act," Kelly explained. "Issue ads" are those that do not explicitly ask their audience to vote a certain way but set out a specific issue and inform the public where candidates, or frequently one specific candidate, stand on that issue, which can be broad or narrow. The Bipartisan Campaign Reform Act of 2002 (sometimes called "McCain-Feingold") expressly set out to regulate "issue ads" at the federal level. When the State Bar decided to take action moving the recommendation forward -- "to its infinite credit," commented Kelly -- it was to Secretary of State Ruth Johnson that Courtade sent a letter, asking her to reconsider her predecessor's ruling. The letter reiterated, "Opposition to secret judicial campaign funding is not partisan or political. It is about protecting public confidence in the integrity and fairness of the court system." Indeed, there are reasons for full disclosure other than allowing the general public to determine whether an issue ad reflects a hidden agenda, as Kelly pointed out. If a judge's secret contributors are not known by those who come before him or her, there is no opportunity to request recusal and no grounds for evaluating the fairness of the trial. This could result in the pervasive perception that the courts are "fairer" to moneyed supporters. Kelly qualified her words about three-quarters of the Supreme Court election being dark money. "We're not really sure how much money is involved, because when you try to identify this secret money you can't go to the Secretary of State, you have to go to the places where the money was spent." Both Kelly and Inns of Court Vice President Stephanie Newton, who introduced her, made reference to the 2012 Michigan Supreme Court election in citing the three-quarters figure. Kelly said that her source was the Michigan Campaign Finance Network (MCFN), "a nonpartisan, nonprofit coalition of organizations and individuals concerned about the influence of money in politics and the need for campaign finance reform in Michigan." MCFN published a comprehensive report on that race and concluded that of the just under $19 million spent that the organization could track -- as Kelly points out, it is even harder to figure out who pays for door-to-door canvassing or mailers -- only 26.8% was disclosed. (The report, A Citizen's Guide to Michigan Campaign Finance 2012: Descending into Dark Money is available at www.mcfn.org.) Kelly quoted MCFN's Rich Robinson as saying that Michigan is the worst in the nation regarding judicial elections, both in terms of money spent and in terms of secrecy. Robinson said in a Nov. 3 Detroit Free Press editorial, "There's more dark money in Michigan in local campaigns and elections than in federal elections... It's just as though this whole thing is seeping down into the culture, and dark money becomes more of the way of politics. And there's great peril in that." At the forum, Kelly said that polls have shown that something like 96% of voters believe that all judicial contributions should be publicly disclosed, and added that she urged people to ask their state representatives and senators where they stand on full disclosure. However, new legislation may not be necessary, depending on how Secretary of State Johnson rules. The 60-day time period for her to make her decision is coming up, but she is allowed to request a 30-day extension. According to the American Inns of Court President Tom McCarthy, attorney at Smith, Haughey, Rice, and Roegge, the intent is to keep airing the concerns and opinions of judges and justices during his presidency. American Inns of Court's mission is "to foster excellence in professionalism, ethics, civility, and legal skills." The number of Inn of Court chapters continues to grow around the country, and Michigan currently has eight others. Published: Mon, Nov 18, 2013

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