On September 11, the State Bar asked Secretary of State Ruth Johnson to issue a declaratory ruling to create greater transparency for the sources of funding for judicial campaign advertisements. A 2004 Department of State interpretation of Michigan’s Campaign Finance Act (MCFA) says that “issue advocacy advertisements” are not “expenditures” under the Act. The practical effect of that interpretation has been to allow the vast majority of advertising funding sources in judicial campaigns to be anonymous. The State Bar's letter says that the interpretation needs to be updated in light of three U.S. Supreme Court opinions since 2004 -- FEC v. Wisconsin Right to Life (2007), Caperton v. Massey Coal Company (2009), and Citizens United v. FEC (2010).
In response to Mr. McNeilly's remarks, the State Bar's executive director issued this statement:
Michigan has been a mandatory bar since 1935 and has a proud history of great service to the public and our members. A mandatory bar association provides benefits for both the state and lawyers, which is why the majority of states require practicing lawyers to be members of a state bar. The alternative is a state licensing structure and separate bar association. A mandatory bar association is considered more cost-effective for both the state and members of the bar to provide regulation, promote the quality of the profession, and protect the public. The rationale for this unique licensing for lawyers is that unlike other professionals, lawyers are also officers of the court. From the moment they are sworn in as members of the bar they have a governmental role and responsibility.
Calls to punish the State Bar of Michigan for taking a nonpartisan policy position misunderstand the position, the nature of the bar association, its purpose, and its history. The State Bar’s status is not related to “right to work” laws. The State Bar is a professional association; it is not the employer of the lawyers of Michigan. The State Bar is a public body corporate performing a governmental function — promoting improvements in the administration of justice and advancements in jurisprudence, improving relations between the legal profession and the public, and promoting the interests of the legal profession in this state (Supreme Court Rules Concerning the State Bar of Michigan). We provide those services to lawyers and the public for less in annual dues than most other professionals pay for annual professional licensing, and for less than lawyers and taxpayers in most states pay.
The State Bar scrupulously stays out of politics, including in our support for disclosure of judicial campaign funding, the issue that has apparently displeased politicians who want unfettered access to undisclosed funding. Our position was adopted unanimously by our broad-based 150-member policy-making body, which includes members active in both political parties. Some Republicans may be "furious" with the State Bar's principled stand against secret funding in judicial campaigns, as may be some Democrats, but neither party is on record in support of secret funding. Prominent members of both parties have called for greater disclosure. It would itself be an impermissible, political act if the State Bar, in response to threats of extinction from a political faction, were to suppress its support of a position that was unanimously adopted by a broad and bipartisan representation of its membership.