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Politics, ‘dark money’ and seedy Michigan Supreme Court elections

October 24, 2014 by Steven M. Gursten

The way we elect justices and judges in Michigan is broken and must be fixed, even with reported campaign contributions

Dark money Michigan Supreme Court

The Michigan Supreme Court election is coming up on Nov. 4. Yesterday, I wrote about why your vote for the Michigan Supreme Court is hugely important – and our own recommendations for the most qualified judicial candidates.

Whether you agree or disagree with my opinions on who’s best for the Michigan Supreme Court, today I’d like to delve into how bad things have become in the way we elect judges and justices in this state.

Why all the seedy politics and dark money that’s behind these judicial elections?

Recently, two of Michigan’s most astute court watchers also have had some thoughts on the  Michigan Supreme Court elections. I’m talking about political commentator Jack Lessenberry of Metro Times and Michigan Radio and campaign finance watchdog Rich Robinson of the Michigan Campaign Finance Network.

Taken together, their diagnosis of what’s ailing Michigan’s high court – as evidenced by its track record of ruling in favor of insurance companies at the expense of auto accident victims – is troubling.  And this does not only affect the attorneys who practice before the courts. This affects the legal rights of every Michigan citizen (even if most don’t vote and don’t complete the ballot).

The conclusions boil down to the following conditions:

  • Despite being misleadingly-described as “non-partisan” in nature, Michigan Supreme Court elections are completely driven by politics and partisan special interests.
  • “Dark money” is casting a long shadow over the integrity of the high court, the appearance of impartiality of its justices and the soundness of its jurisprudence.
  • Not-so-dark money (i.e., reported campaign contributions) is less deceptive and secretive, but still harmful.

Partisan politics have no place on the Michigan Supreme Court

Under Article 6, Section 2 of the Michigan Constitution of 1963, each of the Michigan Supreme Court’s seven justices are to be “elected at non-partisan elections as provided by law.”

Yet, nominations are ironically made in the least non-partisan fashion. Supreme Court nominees are chosen by the “state central committee of each political party” at each political party’s “fall state convention.” (MCL 168.392 and 168.393)

Here’s what Jack Lessenberry had to say on this issue in his September 3, 2014, Metro Times column, “Politics and Prejudices”:

  • “Two weekends ago, the two major political parties held their state conventions and decided which candidates they would allow us to vote for in November.”
  • “Candidates for the Michigan Supreme Court, for example. Did you think judges were elected in a strictly nonpartisan way?”
  • “Do you think partisan politics should be kept away, as far as possible, from justice? Hahaha! Poor, naive you.”

Millions in ‘dark money’ behind the Michigan Supreme Court elections

Shadowy and ultimately unidentifiable political operatives anonymously paid nearly $14 million for TV ads to influence the 2012 Michigan Supreme Court election, according to a study by Rich Robinson and his Michigan Campaign Finance Network.

As Robinson and the MCFN noted in their 2012 “Citizen’s Guide to Michigan Campaign Finance,” which was entitled “Descending into Dark Money”:

“Undisclosed spending in Supreme Court campaigns,” i.e., “dark money,” “thwarts the voter’s right to know who is supporting the candidates … It compromises trust and confidence in the impartiality of the judiciary.”

Lessenberry shared Robinson’s concern. As he noted in his Metro Times column:

“The fat cats [i.e., “various special-interest groups”] will be spending millions, most of it in secret ‘dark’ money, to try to influence the outcomes of our three high-court races.”

To learn more about the effect of “dark money” on the Michigan Supreme Court elections, please check out our blog post, “Who spent nearly $14 million on TV ads to influence the 2012 Michigan Supreme Court election?”

Not-so-dark money (the reported campaign contributions

Lessenberry makes it clear that he believes money – dark money or otherwise – will be a  critical factor in  November’s Michigan Supreme Court election.

After noting that “the fat cats will be spending millions … to try to influence the outcomes of our three high-court races,” Lessenberry essentially throws his hands up in disgust:

  • “[T]he likely result is already known: The two Republican justices, David Viviano and Brian Zahra, both appointed by Gov. Snyder, will probably crush their Democratic rivals, Deborah Thomas and Bill Murphy.”
  • “The Republicans will not only have more campaign money than God or even the Kochs, they will be listed on the ballot with their titles as Justices of the Supreme Court, which make their opponents look like, well, Brand X.”

As for the Democrats’ aspirations of getting a candidate on the Supreme Court bench, Lessenberry again, observes the chances are likely a function of dollars:

“Democrats are pinning their major hopes on 40-year-old Richard Bernstein, who already has accomplished amazing things despite being sightless since birth. … What they especially like about him is that … he can largely self-fund his campaign.”

While stopping short of making an outright election prediction, Robinson and MCFN make clear their  belief about the important role that money is and will be playing in the Nov. 4 Michigan Supreme Court election in their August 15, 2014, press release, “Donors behind the statewide candidates”:

  • “Incumbent Republican candidates for key statewide offices all hold wide fundraising advantages over their Democratic challengers according to the most recent campaign filings.”
  • “Incumbent Supreme Court Justices Brian Zahra and David Viviano, who will run as nonpartisans after gaining Republican Party nominations at next week’s party convention, have each raised about $500,000, while the only Democratic nominee to have filed a fundraising report, Richard Bernstein, has raised $100,000 – all self-funded.”

Notably, the Republicans’ other Michigan Supreme Court candidate, James R. Redford, has raised approximately $194,000, according to MCFN calculations.

It appears that no money has yet been raised by the Democrats’ second Supreme Court nominee, Debra Thomas.

We desperately need to fix now the way we elect judges and justices in Michigan

As an attorney, I personally hate all of this.  It defies common sense to believe that the hundreds of thousands of dollars these candidates raise will have no impact on their votes – or that the knowledge that they will once again have to campaign and raise money in future Supreme Court elections will also have no effect.

Justice Stevens, in his dissent in Citizens United, one of the great threats to our constitutional democracy, said this:

“A democracy cannot function effectively when its constituent members believe laws are beign bought and sold.”  Citizens United v. FEC, 130 S. Ct. 876 (2010) (Stevens, J., dissenting).

We desperately need to fix now the way we elect judges and justices in this state.

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