LANSING – More than 60 percent of spending for the Michigan Supreme Court campaign between incumbent Chief Justice Clifford Taylor and Judge Diane Marie Hathaway will not be disclosed in any campaign finance report because it paid for candidate-focused “issue” advertising. Michigan campaign finance law does not require disclosure of the financing of campaign advertisements as long as the spots do not exhort a vote for or against a candidate.
Data collected by the nonpartisan Michigan Campaign Finance Network from the public files of state broadcasters and cable systems show that the Michigan Chamber of Commerce, the Michigan Democratic Party and the Michigan Republican Party paid $3.75 million for television advertisements that sought to define the candidates’ character, qualifications and records but made no mention of voting. Meanwhile, the candidates raised and spent a total of $2.5 million.
Among the advertisements for which there is no disclosure:
• The Michigan Democratic Party spot that featured a dramatization of a sleeping judge and testimony of a litigant who claimed that Chief Justice Taylor slept during oral argument of her case.
• The Michigan Chamber of Commerce spot that encouraged viewers to contact Judge Hathaway and tell her not to be soft in sentencing sex offenders, as an unnamed assistant prosecutor asserted she had been in the past.
• The Michigan Republican Party spot that showed a bikini-clad woman frolicking on a beach and said that Judge Hathaway previously had pursued a seat on the Court of Appeals so she could have a light work load and enjoy leisure time on the beach.
“Show these spots to any focus group you like and they will recognize them as campaign ads,” said Rich Robinson of the Michigan Campaign Finance Network. “Yet we have this ridiculous ‘don’t ask, don’t tell’-policy that guarantees anonymity for the interest groups and individuals who pay the bills.”
“The ethical hazard in this is that an interest group that has a case on appeal can spend a million dollars to market the candidacy of a judge they believe to be sympathetic to their point of view and the public will never know it. This makes it impossible to recognize when a justice is hearing a case involving a party who has been materially involved in the justice winning his or her seat,” Robinson said.
The pattern of having the majority of spending for Michigan Supreme Court campaigns off the books goes back to 2000. In the campaigns from 2000 through 2006, the candidates for the state’s highest court raised $10.4 million while third-party issue ads totaled $10.5 million.
The Michigan Campaign Finance Network recommends three policy measures to reform Michigan Supreme Court campaigns and bolster public trust and confidence in the impartiality of the Court:
• Require full disclosure of the receipts and expenditures for campaign advertisements that feature the name or image of a candidate, whether the ads mention voting or not.
• Update disqualification standards for the Michigan Supreme Court to acknowledge the potential for conflict of interests when justices hear cases that involve major financial supporters of their election campaigns.
• Develop a system of public financing for Supreme Court campaigns, so candidate committees have a viable alternative to soliciting financial support from interest groups and attorneys who may be involved in future cases.
The American Bar Association’s Model Code of Judicial Conduct recommends that state supreme courts consider campaign finance support in developing recusal standards, and the ABA recommends public financing for supreme court campaigns in states that select justices through contested elections. The Representative Assembly of the State Bar of Michigan also has taken a position in support of public financing.
The money details
Judge Hathaway overcame a large financial disadvantage in defeating Chief Justice Taylor. Including pre-election late contribution reports, Taylor’s campaign raised $1,842,000, a record for a Michigan Supreme Court candidate, compared to $638,500 for Hathaway. Taylor’s campaign spent $1,309,000 for television while Hathaway’s campaign spent $495,500 for television.
Taylor’s supporters, the Michigan Chamber of Commerce and the Michigan Republican Party, spent $1,667,000 and $687,000, respectively, for their candidate-focused issue ads - a total of $2,354,000. The Michigan Democratic Party spent $1,399,000 for its issue ads supporting Hathaway. Overall, Taylor and supporters outspent Hathaway and supporters $3,663,000 to $1,895,000 for television advertising.
The television ad data collected by MCFN are a conservative representation of off-the-books spending. The data do not account for radio advertising or third-party spending for direct mail or the field campaign.