For the second election cycle in a row, Michigan had the highest Supreme Court election spending in the country. And, as documented by the watchdog group Michigan Campaign Finance Network, nearly 75 percent of the money spent on Michigan’s state record-setting 2012 Supreme Court race was not subject to state disclosure laws.1

With the Supreme Court’s 4–3 conservative majority on the line, Democrats Connie Kelley, Shelia Johnson, and Bridget McCormack faced off against Republicans Brian Zahra, Steven Markman and Colleen O’Brien in 2012, with money pouring in on both sides from political parties and outside groups. Markman, O’Brien, and McCormack won their respective races, which had the effect of maintaining the Court’s conservative majority.

Overall spending reported to state campaign finance authorities by candidates, parties, and groups was approximately $5 million in 2012. But MCFN’s review of public files from television broadcasters and cable systems documented more than $13.85 million spent on air time for issue ads, which did not trigger state disclosure requirements. The result, as observed by The New York Times editorial board, was that Michigan’s 2012 high court races set records “for both spending and lack of accountability.”2

Michigan’s weak disclosure rules are to blame. Under a 2004 interpretation of the Michigan Campaign Finance Act, published by the Department of State, spending on ads does not need to be disclosed unless the ads contain words directly calling on voters to vote for or against a particular candidate. Savvy political strategists in Michigan have easily exploited this gaping loophole, crafting advertisements that voters clearly understand as urging them to vote for or against a particular candidate, but that avoid saying “vote for,” “elect,” or “defeat” a candidate—and thus avoid disclosure requirements.

Rich Robinson, MCFN’s executive director, wrote in Dome magazine about the harm to ordinary citizens from the resulting lack of transparency:

This is a big problem. Nobody has the motivation to spend big money in a judicial race like a litigant with a high-stakes case in the appeals pipeline. Imagine being in court opposing the person who financed the campaign of the justice who is going to decide your case. Imagine not knowing it, so you can’t make a legitimate motion for recusal. Dark money undermines the whole premise of judicial impartiality.3

In 2012, the Michigan Judicial Selection Task Force, a blue ribbon commission chaired by Justice Sandra Day O’Connor, called for Michigan to expand disclosure requirements to apply to all judicial campaign expenditures, including “issue ads” by political parties or outside groups.

The Task Force explained the importance of this reform, noting, “Public trust in the candidates and the courts will increase as voters begin to feel less manipulated by unseen forces.”4

State in Focus: Michigan Notes

  1. Michigan Campaign Finance Network, Descending into Dark Money: A Citizen’s Guide to Michigan Campaign Finance 2012, at 31 (2013), available at http://www.mcfn.org/….
  2. Editorial, Judicial Elections, Unhinged, N.Y. Times, Nov. 18, 2012, http://www.nytimes.com/….
  3. Rich Robinson, Op-Ed., Culture of Dark Money, Dome Magazine, Dec. 21, 2012, http://domemagazine.com/….
  4. Michigan Judicial Selection Task Force, Report and Recommendations 8 (2012), available at http://www.lwvmi.org/….