OCBA UPDATE: Anonymous assassins

By James G. Derian

The Michigan Campaign Finance Act ("MCFA")1 requires public disclosure of virtually all forms of campaign contributions, including "expenditures" made by independent groups or individuals, in support of or opposition to a candidate. The statute carves out a so-called "issue ad" exception for those ads that do not "support or oppose a ... candidate by name or clear inference."2 The MCFA's definition of "expenditure" has never been held by a court to be unconstitutionally vague or overbroad.

Nevertheless, at the request of the Michigan Chamber of Commerce, on April 20, 2004, Secretary of State Terri Lynn Land, citing federal precedent, issued an "interpretive statement" declaring that the definition of "expenditure" in the MCFA was unconstitutionally vague and overbroad, thus compelling her to limit its reach by imposing an "express advocacy" standard on the definition. As a result, an independent "issue ad" in Michigan can label a political or judicial candidate a baby killer, for example, and avoid reporting under the MCFA, so long as the ad doesn't conclude by expressly saying "vote against" or "defeat" the candidate. The Secretary of State's interpretation exempting all such "issue ads" from public disclosure under the MCFA has triggered a growing landslide of anonymous character assassination ads in Michigan's political and judicial elections since 2004.

On September 11, 2013, the State Bar of Michigan submitted a formal request to Secretary of State Ruth Johnson requesting a declaratory ruling under the MCFA to reconsider her predecessor's April 20, 2004 interpretative statement - but only as it applies to judicial candidate issue ads.3 The State Bar's request was made primarily on the basis of two recent U.S. Supreme Court precedents, which compel reconsideration of this issue with respect to judicial candidate ads.

The U.S. Supreme Court's 2007 opinion in Federal Election Commission v. Wisconsin Right to Life4 clarified the distinction under the Federal Election Campaign Act5 between candidate-related ads and purely issue ads. In that case, the Court held that an advertisement should be considered a candidate-related ad or its "functional equivalent" if it is essentially "an appeal to vote for or against a specific candidate." The Supreme Court went on to explain that genuine issue ads, in contrast to candidate-related ads, "focus on a legislative position, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter."

The Supreme Court's of issue ad in the Wisconsin Right to Life case shows that advertisements about judicial candidates can never really be fairly characterized as issue ads. Judicial candidates, unlike political candidates, cannot be lobbied on issues. A judge's rulings must be driven by the law as applied to the facts of a case. Because a judge may not be influenced in his or her rulings by public advertisements, it's disingenuous to characterize issue ads as solely intended to influence judicial behavior. In the context of a judicial election campaign, negative issue ads can only be reasonably construed as intended to influence voter behavior. That is, asking them to vote against the targeted judicial candidate - which is "express advocacy."

Fairness and impartiality are cornerstones of every legitimate judicial system. The appearance of judicial impartiality is inevitably undermined by secret judicial election engineering. In Caperton v. A.T. Massey Coal Company,6 the U.S. Supreme Court recognized that "there is serious risk of actual bias when a person with a personal stake in a particular case has had a significant and disproportionate influence in [electing a judge] by raising funds or directing the judge's election campaign." The Supreme Court went on to hold that due process required a West Virginia Supreme Court justice to recuse himself because of the multi-million dollar campaign expenditures made in behalf of his election campaign by defendant Massey Coal Company's CEO, which created the "appearance of a conflict" and a "probability of bias." At the time of this judicial election campaign, Massey was petitioning the West Virginia Supreme Court for the reversal of a $50 million judgment entered against it at trial.

Caperton shows that our 14th Amendment due process rights can be seriously at risk unless the identities of all funders of judicial candidate-related "issue ads" are publicly disclosed. The identity of the ad funder, together with the percentage of total campaign spend the ad expenditure represents, will allow counsel to determine whether an opposing party has had a "significant and disproportionate influence" in electing the judge assigned to their case. Under the Michigan Secretary of State's current interpretation of the MCFA, the public does not know who is funding these judicial attack ads and cannot determine which judge might appear to have a conflict of interest in this regard.

This is a very real problem in Michigan. During the 2012 judicial elections, our state was flooded with candidate-related attack ads posing as issue ads. The Michigan Campaign Finance Network estimates that the state's two major political parties, along with another group, spent approximately $19 million on ads for the 2012 Michigan Supreme Court races, with 75 percent of that amount attributable to candidate attack ads funded by secret donors with undisclosed interests.7 As many of you probably know, another $2 million in secretly funded candidate attack ads were run in the 2012 Oakland County Circuit Court elections. Fortunately, this cowardly attempt at secret judicial election engineering failed - partly because the secret funder of these circuit court ads overlooked the need to put forward well-qualified stooge candidates.

Allowing the funders of these phony judicial "issue ads" to go undisclosed in Michigan has led to ridiculously expensive, highly politicized judicial campaigns dominated by hidden special interests and the candidate attack ads they buy. This degeneration of our judicial elections in Michigan has further fueled public suspicion that the judiciary is beholden to special interests. The lack of disclosure also undermines the effective exercise of one's due process rights to move for the recusal of a judge whose "appearance of a conflict" is of sufficient magnitude to create a "probability of bias" under Caperton.

In judicial elections, it simply doesn't make sense to exempt "issue ads" from disclosure under the MCFA because judges are duty-bound to ignore public opinion and make their rulings by impartially applying the law to the facts of a specific case. A revised interpretation of the MCFA by Secretary of State Ruth Johnson is needed - especially in light of the recent U.S. Supreme Court decisions in the Wisconsin Right to Life and Caperton cases. In judicial elections, all candidate-related ads posing as issue ads should be considered express advocacy, and thus reportable "expenditures" under the MCFA. Such disclosure would help strengthen the judiciary and the public's confidence in the integrity of our state court system.

But, I'd like to know your views on this, and perhaps Secretary of State Ruth Johnson would too. Should the funders of candidate-related "issue ads" in judicial election campaigns be subject to public disclosure under the MCFA? Your views matter to me and your state government. E-mail me at james.derian@delphi.com.

Secretary of State Johnson can be reached at (517) 373-2510 and www.michigan.gov/sos.

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1 MCL 169.201 et seq.

2 MCL 169.206(1).

3 Under the MCFA, the Secretary of State must respond publicly to a request for a declaratory ruling within 45 business days of the request, although the agency can ask for a 30-day extension.

4 551 U.S. 449 (2007).

5 2 U.S.C. 431 et seq.

6 556 U.S. 868 (2009).

7 Rich Robinson, "A Citizen's Guide to Michigan Campaign Finance 2012: Descending into Dark Money" (June 2013), at 31, available at: www.mcfn.org/pdfs/reports/MCFN_2012_Cit_Guide_final rev..pdf.

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James G. Derian, corporate counsel for Delphi Automotive Systems LLC, is the 81st president of the Oakland County Bar Association.

Published: Tue, Nov 26, 2013

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