Why Michigan citizens should care about money in judicial politics

Rich Robinson is executive director of the Michigan Campaign Finance Network, a non-profit, non-partisan campaign finance watchdog group in Lansing. Here are his thoughts about judges who contribute big bucks to political campaigns and the role big money plays in judicial elections.

Q. What do you think about Michigan Court of Appeals Judge Henry Saad contributing $80,800 to Republican candidates and parties in the 2012 federal elections?

A. Certainly he has First Amendment rights to support the candidates and party committees he chooses to support. But having contributed more than half his net judicial salary — an amount greater than average household income in Michigan — to various Republican party committees, I’d say he’s flushed any vestiges of nonpartisanship. It is highly unusual conduct for a judge, in Michigan or anywhere else in the country.

Q. To what extent do Michigan judges contribute to political campaigns?

A. Quite a few Michigan judicial candidates self-fund their own campaigns. It’s not that unusual to see a judicial candidate give their campaign committee tens of thousands of dollars, and almost every election cycle there’s at least one candidate who gives six figures to his or her own campaign. But I have never seen a Michigan judge give thousands of dollars to another candidate or a party committee. Most contributions I’ve seen from a judge are in the range of $100-$300.

The Sunlight Foundation database shows that Judge Saad’s contributions are highly unusual nationally, as well. In their list of the ‘1% of the 1%,’ — an incredibly small percentage of the population  — there were only two other judges that I could find and both of them gave a fraction of what Judge Saad did.

Q. Is this something the public should be concerned about?

A. I think most citizens want, and expect to have, nonpartisan judges. And that’s what our process of judicial selection seems to promise. But let’s be real: two-thirds of the judges on our Court of Appeals first reached that court by gubernatorial appointment, not election, and we’ve never had an incumbent Court of Appeals judge defeated at the polls. I’m not naïve enough to believe those appointments are made without partisan consideration. That is why the Judicial Selection Task Force chaired by retired Justices Marilyn Kelly and Jim Ryan recommended a nonpartisan, or bipartisan, nominating commission to screen candidates transparently and publicly for gubernatorial appointment. That commission would then make recommendations of extremely well qualified candidates to the governor. I think that would wring some of the partisanship out of the process.

Q. Should Michigan’s judicial rules ban judges from making political contributions?

A. No, we shouldn’t compromise anyone’s First Amendment rights to participate in the political process. Having said that, I think it’s extremely injudicious for a judge to give his party tens of thousands of dollars. To my knowledge, there was no precedent for what Judge Saad did, and I doubt if we’ll see such bad judgment again anytime soon.

Q. Officially, high-level judges on the statewide election ballot are in nonpartisan races. But we know candidates are backed by political parties. And political parties nominate Supreme Court candidates. You've written extensively about the impact of money on judicial elections in Michigan. Can you summarize what you've found?

A. I’ve heard our Supreme Court selection process lampooned by someone who has been deeply involved with a number of campaigns as the “immaculate re-conception”: Nominated by the party at convention in September; reborn as a nonpartisan on the November ballot. I think that element of Supreme Court selection is the result of a very bad compromise at the 1961-62 state constitutional convention.

The more disturbing trend to me is the increasing role of dark money. In the 2012 Supreme Court campaign the candidates and independent spenders reported $5 million of spending. I was able to document nearly $14 million more in spending for television “issue” ads — where the only issue was the suitability of the candidates to hold office. And I’m certain there was more spending that I couldn’t document because, unlike broadcasters, the U.S. Postal Service doesn’t have a public file where you can track spending that’s not reported to the Bureau of Elections.

This problem of dark money seeped into the Oakland County 6th Circuit Court campaign in 2012. In that campaign, two Washington, D.C.-based nonprofits were used as rental vehicles to launder money that was used for a $2 million TV campaign that knee-capped one candidate and touted two other candidates who had no real campaign of their own. I think that one got the attention of a lot of judges. A cranky rich guy loses a court case and seeks retribution while leaving no fingerprints. Would you have enough guts to stand up to such a litigant, knowing what he’s capable of doing? That is a real threat to impartial justice.

I don’t think the problem is so much with our state campaign finance law. I think the problem is an interpretation of the law that preceded some of the critical U.S. Supreme Court campaign finance jurisprudence of this century. We’re overripe to revisit that interpretation, because our willful ignorance is like a self-inflicted lobotomy. Citizens, litigants, lawyers and judges all need to know whose money is driving our judicial campaigns.

Q. So, what's the bottom line? Is the justice system truly impartial in Michigan? Or does partisanship taint justice?

A. I think there are a number of policies related to judicial selection that would better protect the impartiality of our courts, and I think the Judicial Selection Task Force did an excellent job of formulating recommendations to do so. They recommended open primaries for the Supreme Court, rather than party nominations; full disclosure of all spending in judicial campaigns; a nonpartisan nominating commission for screening candidates for appointment to vacated positions; an end to the pointless age discrimination of mandatory retirement after age 70; and bipartisan campaign oversight committees. The only thing I would add is public financing for judicial campaigns, beginning with the Supreme Court.

Q. If you could wave a magic policy wand, how would you better ensure that Michigan courts — and their legal decisions — are free from the potential partisan taint of campaign finance?

A. I think the key is transparency. We’re fools to allow three-fourths of the money in a judicial campaign to come from anonymous sources. If we had full disclosure, you might see more recusal motions, or you might see a certain amount of pulling back by the cowards who spend millions under the cover of anonymity. I think such developments would be positive.

Q. What role do politics and political parties play in judicial elections in Michigan?

A. Of the nearly $14 million in undisclosed spending in the 2012 Supreme Court campaign, $13 million was spent by the Michigan Republican Party and the Michigan Democratic Party — in nearly equal amounts. In the 2012 election cycle, the parties spent way more that was undisclosed than what they reported. An argument can be made that the parties’ principal financial purpose is money laundering. The parties, acting on behalf of their funders, are the principal vehicles of the disgraceful mess we’ve developed in judicial selection.

Q. You’ve talked in the part about “dark money” — money spent on behalf of candidates that isn’t disclosed in campaign finances reports? How much of a problem is dark money and how much of a problem is dark money in Michigan judicial campaigns?

A. From 2000 through 2012, the majority of the money spent in Michigan Supreme Court campaigns was off the books. There is no telling how many instances we may have had of a justice ruling in a case of a million-dollar campaign supporter because we don’t require complete campaign finance reporting. That deprives the opposing litigant of his, or her, due process right to an impartial court hearing. This is a self-inflicted wound that only serves those who seek to anonymously buy election results – and, maybe, court decisions.

Q. What can or should be done about it? And, more importantly, what are the prospects of anything being done about it?

A. The controlling interpretation of the Michigan Campaign Finance Act needs to be revisited, reconsidered and reinterpreted. I’m very optimistic that we’ll see that happen before the next judicial election cycle. Our law is not defective. The controlling interpretation is.

David Ashenfelter served as a reporter for many years for both the Detroit News and Detroit Free Press and won Pulitzer Prizes at both papers. He’s a member of the Michigan Journalism Hall of Fame.

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Tue, 08/20/2013 - 10:14pm
Mr. Robinson believes in the First Amendment right of the individual only to a poinit. He sees that either by position, role, or relative income should be a limiting factor. He feels that if a person contributes 50% of their salary for a certain job they have exceeded his cap on their First Amendment right. He doesn't seem to care if the person is willing to make that sacrifice because of how strongly they believe in something or if they may have other income that maybe earn from personal investments. He simply feels that, in this case, a particular individual should not have the same rights that the Supreme Court has said the First Amendment gives to others. I wonder if Mr. Robinson simply disagrees with the Supreme Court and should have their rulings ignored and there should be limits placed on selected peoples Constitutional Rights. Maybe Mr. Robinson believes that simply because someone does the unusual they and should have their Rights limited to they can be unusual. Albeit being unusual is yet criminal, but maybe that is Mr. Robinson's next criteria for deciding who people's Rights. Mr. Robinson seems to be so opposed to partisan politics in the judicial system that he even suggests it is the only barrier to imparticality of judges. I would offer that he is naive for no one is impartical unless they have lived outside of society, for in the life a judge lives prior to becoming is dominated by particalities. There are innumerable issue that we all for opinions on as we live life, as we are educated (the biases of the teachers), as we deal with personal issues that none independent of the political party has not created their own views on living. I think Mr. Robinson is wrong, only partisan people are conerned with particality. I believe that people are more interested in judges adhering to the law then worrying about their partisanship. When Mr. Robinson talks about Campaign financing, his are of 'expertise' and moves away from his personal partialities he is much more credible. Public notification of campaign contributions is much more credible a postion then wanting to limit the amount of money a particular individual contributed. As best I can tell Judge Saad is very open about the contribution he makes and yet Mr. Robinson is more concerned about the amount of his contributions rather then wanting to use that Judge's openness as an example how all campaign contribution are handled. I disagree with Mr. Robinson, when he is focused on a single individual, I believe we should focus on the system and making it open for all voters to see. Ah, but the Bridge has made a point of Judge Saad in the issue so Mr. Robinson may simply accomodating Mr. Ashenfelter.
RJ Godin
Thu, 08/22/2013 - 10:34am
The point is not whether Mr. Saad has "used up" his first amendment rights, but whether people can trust his impartiality in cases. Historically, judges had the high bar of the appearance of conflict of interest. This was essential for maintaining the integrity of the courts and their decisions. While Mr. Saad is free to hold his opinions and support partisan politics as an individual, his extravagant contributions clearly create the appearance of a bias that should make nearly all of his decisions suspect.
Thu, 08/22/2013 - 3:28pm
RJ, It seems that 'appearance' is more important to you than actions. If partisanship has played a signficant role in the selection of judges, then it would seem that by the time attorneys has reach the situation where they are consider for, nominate for, even elected or appointed to the judicial bench that they have exhibited noticiable partisanship. It would seem that you believe they can discard all of that history simply when they take their oath of office. Many may promote that impression, but I am highly skeptical of such protestations. I am of the mind that public officials should be willing to be open and honest about their belief and their actions allowing the public with full knowledge then assess their actions. I don't believe an honest person can simply cast aside a life time of beliefs in an instant, I do belief that when they don;t dilute themselves by hiding them they are being more fair, more ethical than those who are open about themselves. I do believe that honest people can seprate their public beliefs from their professional roles and responsibilities. Specifically I expect that the vast majority of judges focus on the law when the make ruling rather than on their partisanship. I prefer an open an honest judge over one that is preoccupied with appearances.
RJ Godin
Mon, 08/26/2013 - 6:24pm
Duane - I refer you to the Michigan Code of Judicial Conduct - http://jtc.courts.mi.gov/codeofconconduct.htmWhile Canon 7 clearly allows judges to contribute to political parties, candidates and campaign, Canon 2 - A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities makes it very clear that "Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly." The fact that Mr. Saad contributed is not the issue - it is the scale/scope of his activities that erode confidence. How many citizens contribute 50% of their income to political parties and causes? Mr. Saad clearly has violated the spirit and intent of Canon 2 with his excessive contributions.
John Q. Public
Mon, 08/26/2013 - 9:02pm
There's no reason (at least no good one), Duane, to genuflect before bad court decisions, and one saying that, as a practical matter, the right to give money in support of political causes is mere "speech" protected by the First Amendment is down there with the worst of them. That ruling being what we're stuck with, though, it deprives no one of his rights to say he has to choose between giving money and sitting on the bench. He simply has to choose whether a spot on the court is more important. If he chooses thus, any deprivation will be self-inflicted. There are many limits to the First Amendment, Equating money with speech determines that those with more money are vested with greater rights, whereas if it were properly limited to the spoken or written word, the deleterious effects of unequal access to political power that accompany "money is speech" would be far less pernicious. It is the height of naivete to think that judges--cursed with the same failings as all humans--leave their political prejudices in the closet with their civilian overcoat when they don the black robe. They're nominated by political parties expressly (albeit behind closed doors, and cloaked in hypocrisy) to rule in accordance with the prejudices of those doing the nominating. They seldom disappoint, often using the cover of politically similarly situated jurists who form a majority, allowing the minority justices to pen a "dissent" to an opinion that, if not hypocritical, is certainly ironic. They don't dissent with the majority at all, but get to pretend to be impartial when there's nothing at stake.