The
Michigan Freedom Fund (MFF), a nonprofit organization supporting Michigan's
right-to-work law, announced its intent today to put the State Bar of Michigan
out of existence. MFF's head, Greg McNeilly, told Gongwer News that part
of the motivation was the State Bar’s "recent move to propose requiring
disclosure of all spending in judicial campaign races, even if those ads do not
expressly advocate for the election or defeat of a candidate for the
court." Republicans, he said, "have been furious about the move by the
State Bar."
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.
