$9.2M: Michigan tops nation in supreme court campaign spending

Michigan led the nation in campaign spending for 2009-2010 on state high-court elections, according to a report prepared by the Justice at Stake Campaign and two of its partners, the Brennan Center for Justice and the National Institute on Money in State Politics.

“The New Politics of Judicial Elections 2009–10” compiled figures that showed high-court spending in Michigan was nearly $4 million more than in Pennsylvania, the next state on the list:

Michigan: $9,243,914
Pennsylvania: $5,424,210
Ohio: $4,437,302
Alabama: $3,538,805
Illinois: $3,477,649
Texas: $2,951,719

The report had this to say about the election cycle:

In Michigan … interest groups and political parties dominated the airwaves, estimates of campaign spending ranged from $9.1 million to $11.1 million (with $6.8 million to $8.8 million in non-candidate spending). Regardless of the precise figure, Michigan’s judicial election spending was easily the nation’s highest in 2009-10. …

So great was the independent spending in Michigan that the four supreme court candidates [Young, Kelly, Justice Alton Davis and Judge Denise Langford-Morris], who raised a total of $2.3 million, at times seemed like bystanders in their own elections.

The state Republican Party single handedly outspent all four candidates, investing more than $4 million in electoral support. Kicking in more than $1.5 million was the state Democratic Party, while the Law Enforcement Alliance of America (LEAA), a Virginia-based group with ties to the National Rifle Association, also made a major TV splash.

Most of the special-interest spending in Michigan was concealed from the public, a fact that accounts for the variation in estimates of total spending. Although ads by both parties and the LEAA were blatant attempts to sway votes, Michigan’s outdated disclosure law treated them as apolitical “issue ads,” and required no campaign finance filings disclosing the amounts spent. Estimates of total spending therefore were largely based on the volume of TV ads each group ran, and estimates of what that airtime cost. It also was impossible to decipher who ultimately bankrolled independent efforts in Michigan.

After being the preeminent player in the previous five supreme court campaigns, the state Chamber of Commerce sponsored no television advertisements in 2010. But it did give $5.4 million to the Republican Governors Association (RGA), a national campaign organization. The RGA ultimately transferred $5.2 million back to Michigan’s Republican Party, which was the leading television sponsor in this year’s high court campaign. Accountability was lost in the face of the RGA’s massive national shell game.

The report also slammed the Michigan Democratic Party’s campaign against Young:

The Democrats anti-Young campaign reached rock-bottom … when they ran an ad that said Young “used the word ‘Slut!’ and ‘The “N” Word!’ in deliberations with other justices” and urged voters to call Young and “tell him we don’t need a racist or a sexist on the Michigan Supreme Court.”

We had a hunch this is what a survey would say

Large bipartisan majorities believe that campaign cash does indeed influence the behavior of elected judges, according to a recent national Harris poll commissioned by the Justice at Stake Campaign.

The American mainstream wants courts to be off-limits to special-interest money and partisan politics.The new polling shows that the desire for impartial courts is broad and bipartisan.

says Bert Brandenburg, executive director of Justice at Stake, a nonpartisan campaign with more than 50 partner groups.

Key results from the survey:

71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. All told, 71 percent of voters share this assessment; only 23 percent believe campaign expenditures have little or no influence on elected judges.

82 percent of Republicans, and 79 percent of Democrats, say a judge should not hear cases involving a campaign supporter who spent $10,000 toward his or her election. Instead, adults said, a neutral judge should hear such cases. This view was held by 81 percent of all adults; only 8 percent of the American public believes an elected judge should stay on cases involving major campaign backers.

88 percent of Republicans, and 86 percent of Democrats, say that “all campaign expenditures to elect judges” should be publicly disclosed, so that voters can know who is seeking to elect each candidate. Among all adults, 87 percent favor full disclosure of campaign expenditures in court elections, and only 8 percent are opposed.

69 percent of all adults, including 73 percent of Republicans and 65 percent of Democrats, said they support a menu of reforms to reduce special interest influence in the courtroom. Potential reforms raised in the survey included public financing of state court elections and systems in which judges are appointed to the bench, but require periodic voter consent to stay on the bench.

Appointing judges more dignified, says op-ed

As spending on the Michigan Supreme Court election is expected to ramp up to record levels, the Detroit Free Press opines that judges ought to be insulated from the fund raising process.

Read the editorial here.

Sleeping judge, the sequel

The “Sleeping Judge” ad campaign that targeted former Michigan Supreme Court Justice Clifford Taylor was criticized, even by Democrats who wanted to see him unseated, as being possibly less than honest, and at the very least a cheap shot which had an enormous impact on the election.

Well, a similar campaign is resurrected, but this time takes aim at Justice Robert P. Young, who is up for reelection this year.

The Michigan Democratic Party’s Web site has posted a contest, inviting participants to guess “How many times has Bob Young fallen asleep on the bench?” and the winner will get a Bob “Sleepy” Young t-shirt.

The site hauls out the statistic: “An insurance industry lawyer, Young has ruled with insurance companies and corporations 80 % of the time,” which would be fair game if it’s true.

But another round of “sleeping judge” ads? Is this how we want to appeal to voters to select a Justice for our state’s highest court?

There is much discussion among members of our legal community about how campaigning and money can influence our judges. And it’s probably fair to say that it’s time to change the way we select our appellate court judges. But it seems somewhat unfair to talk up  (and let’s be honest – it’s generally Democrats who would most like to see the judicial selection process changed)  the unsavory process of judicial elections, while at the same time appealing to the lowest common denominator of the electorate.

MSC’s Weaver stumps for judicial election reform

Michigan Supreme Court Justice Elizabeth Weaver is touting a five-point plan to reform the judicial election/selection process, according to Cathy Nelson Price, reporting in The Midland Daily News.

Weaver told the Midland Area League of Women Voters recently that reforms are needed to make it harder to form “power blocs” of MSC justices. Her plan includes:

1) Electing judges by district;

2) Ending the governor’s unchecked appointment power by implementing Senate confirmation of nominees;

3) Ending a lack of rotation in office by limiting justices to one eight or 16-year term, eliminating incumbency;

4) Disallowing judicial nominations by political parties;

5) Tightening campaign finance reporting requirements and implementing public financing requirements for Supreme Court elections.

Weaver drew League members’ attention to two legislative reform efforts:

House Joint Resolution TT, introduced Jan. 26, would amend the Michigan constitution to “provide for election districts … that are drawn on county lines and are nearly as possible of equal proportion as provided by law. The terms of office shall be eight years and not more than two terms of office shall expire at the same time.”

Senate Bill No. 745, introduced Aug. 19, 2009, would require that a Supreme Court justice be “a registered and qualified elector of the Supreme Court district he or she seeks to represent.” It also specifies that the state would be divided into seven Supreme Court Districts, with each district electing one justice, and that districts be redrawn as necessary according to federal decennial census data.

Weaver was coy about her own plans for running for a final term this year

but suggested that fresh faces on the bench would benefit the electorate.

“Some people can’t handle power, others can ad infinitum,” she said. “It’s a rarity that incumbents aren’t arrogant.”

Weaver, in the past, has received the Republican Party’s nomination as a MSC candidate. But she’s broken ranks with other GOP-backed justices: former Chief Justice Clifford Taylor, who lost a 2008 re-election bid, and current Justices Maura Corrigan, Robert Young and Stephen Markman.

So, what’s ahead for Weaver?

She could decide to retire. She threatened this once before in January 2005, in an apparent attempt to spur judicial election/selection reform. She backed off a few months later. She explained that “it has become clear that it is in my role as a Justice of the Michigan Supreme Court that I can most effectively help to bring these important issues to the attention of the people of Michigan for their consideration and action.” Five years later, she’s still pushing for reform, and in these days of voter discontent, reform resonates as a campaign theme.

She could seek the Republican Party’s nomination. But consider that she’s become an unreliable ally for many causes the GOP holds near and dear to its political heart. Tellingly, her effort to drum up party support last fall at the Michigan Republican Party’s leadership conference fell flat. See, The Michigan Lawyer, GOP weather report: A bit chilly for MSC’s Weaver

She could run as an independent. For quite some time now, she has been positioning herself as a maverick. She’s the only justice who maintains a privately funded website. She’s had it for years. She uses it to air her views on campaign and election reform. The site publicizes her squabbles with other members of the court. And, a year and a half after the fact, the site still features a prominent statement praising the election of Democrat-backed Diane M. Hathaway (“a fair and independent judge”) to the MSC.

Weaver running as an independent? Why not?

There’s precedent. Former Justice Charles L. Levin successfully did it three times.

There’s practicality. A rapprochement with the Republicans is unlikely.

And, there’s positioning. Weaver has been speaking the language of a populist for years.

Who what?

Justice Sandra Day O’Connor just surprised a group of law students, lawyers and law watchers, when in the middle of a presentation about the selection judges and justices she was able to slip in a spontaneous utterance: “Who dat?”

She wasn’t talking football at the Wayne State University/ABOTA symposium; rather she was talking history, and about how the populist president Andrew Jackson saved New Orleans (making him a “saint” of a different kind, back in the day).

What will that money buy?

That’s what James J. Sample, associate professor of law, is asking in light of the recent US Supreme Court desision in Citizens United v. FEC.

Sample is one of the speakers at the American Board of Trial Advocates symposium at Wayne State Law School, Options for an Independent Judiciary.

“What will that money buy?” he asked, now that corporate and union campaign contribution restrictions have been lifted.

Well, he showed us. He showed us about a dozen of the more famous television ads for, and against, judicial candidates around the country, including the now-famous “sleeping judge” ads which blasted Michigan Supreme Court’s former chief justice Clifford Taylor, and which some say played no small part in his defeat when he ran for re-election in 2008.

COA orders Detroit clerk to put council district proposal on ballot

The Michigan Court of Appeals has ruled that Detroiters can decide whether they want to switch from at-large city council representation to a system that would elect the bulk of the council members by districts.

The COA has ordered that the measure, Proposal D, be placed on the Nov. 3 ballot. The ruling reverses Wayne County Circuit Court Judge Virgil Smith’s order, which kept the proposal off the ballot. Smith ruled last Friday that the ballot language submitted by the proposal’s backers, Detroiters for Council by Districts (DCD), was too murky.

DCD filed an emergency appeal with the COA on Monday. The COA responded yesterday by issuing a writ of mandamus compelling Detroit City Clerk Janice Winfrey to put the issue before the voters.

DCD and other backers say that electing council members by district will ensure that all areas of the city are represented on council. From The Detroit News:

The referendum is aimed at making it easier to elect neighborhood leaders with small campaign budgets and limited citywide name recognition. Proponents of the charter change have complained too many council members live in the same neighborhoods, leaving large portions of the city without a voice to express their particular problems and desires.

Money and justice: Who’s really paying for judicial election campaigns?

“Tell God the truth but give the judge money,” is a Russian proverb, according to Poetic Justice, a compilation of quotes and sayings about the legal profession edited by Jonathan and Andrew Roth.

The proverb unabashedly alludes to the unseemly topic of bribing judges. Thankfully, instances of judges actually throwing cases for a fistful of cash are infrequent.

But what if the proverb were rewritten slightly?

“Tell God the truth but give the judge[‘s campaign finance committee] money.”

Now, there’s something that goes on all the time, with the full blessing of various campaign finance laws.

Sometimes the giving is extremely generous, in the form of so-called “issue advocacy” advertising. The real givers can remain anonymous, which also occurs with the full blessing of various campaign finance laws.

For that situation, there’s a Danish proverb collected in Poetic Justice that seems appropriate: “Justice oft leans to the side where your purse hangs.”

Rich Robinson of the Michigan Campaign Finance Network had an opinion piece in yesterday’s Lansing State Journal.

Robinson gave a quick synopsis of the Caperton v. Massey case, recently argued before the U.S. Supreme Court. At issue is whether a litigant’s due process rights were violated when a judge did not recuse himself from the case because the other litigant spent $3 million to help get the judge elected. The Michigan Lawyer‘s take on the subject, click here.

Robinson asked his readers:

What does this mean to Michiganders? Plenty.

In 2008, we witnessed a $7.3 million Michigan Supreme Court campaign. Over half the money in that campaign – $3.8 million – paid for television “issue” ads that were never disclosed in any campaign finance report. That is nothing new.

Since 2000, Michigan Supreme Court candidate committees have raised and spent $13.1 million for 10 seats on the court, while the Michigan Chamber of Commerce and the state Democratic and Republican Parties have spent $14.3 million for television ads that sought to define the candidates’ character, qualifications and suitability for office, while coyly avoiding any direct mention of voting for or against a candidate.

In Michigan, that means the groups that bought the ads don’t have to tell us who gave them the money. That means that an interest group that spent $1 million to elect a justice doesn’t have to identify itself in the public record. And when its favored justice votes in a case worth millions of dollars to the interest group, its opponent in the case may not even know its due process right to an unbiased hearing has been gravely compromised.

In other words, we may have had our own Caperton affairs, flying below the radar.

Robinson concludes that it’s just great that the Michigan Supreme Court is considering new recusal standards for itself. But he also wants the Legislature to become involved.

There’s a great opportunity to become informed about the topic on March 18 at the Thomas M. Cooley Law School. The Cooley Law School’s Law Review Annual Symposium is “Supreme Court Election Campaigns: A Threat to Fair and Impartial Courts.”

More information here and here.

A possible fix for faulty judicial ballot advice

A package of bills reported out of the Michigan Senate Judiciary Committee last week is coming too late to help the judicial candidate whose plight prompted the legislation in the first place.

Chris Martin was knocked off last November’s ballot. State election officials gave him faulty advice concerning how many signatures he needed on his nominating petitions.

The Michigan Lawyer followed Martin’s on-again, off-again ballot saga here, here and here.

Recall that Martin wanted to make a three-way race for two seats on the 23rd Circuit bench by running against the incumbents, Judges William Myles and Ronald Bergeron. The Secretary of State told Martin he needed between 100 and 200 signatures on his nominating petition.

This was bad advice: the actual number was between 200 and 400, which the incumbent judges strategically pointed out after the filing deadline passed and Martin submitted only 158 signatures.

The Secretary of State threw Martin off the ballot at the incumbents’ urgings. The Court of Appeals put him back on the ballot in a split decision. The Michigan Supreme Court tossed him back off.

Martin ran as a write-in candidate and received 11,011 votes, just 1,301 shy of knocking off Bergeron.

Senate Bills 0021 through 0024, sponsored by Senator Tony Stamas (R-Midland), would let judicial candidates for circuit, district, probate and municipal courts seek equitable relief if state or local election officials give them incorrect information that keeps them off the ballot.

No word on when the full Senate will consider the bills.