State Bar To SOS: Update Campaign Finance Act Interpretation, Cover Third Party Issue Ads in Judicial Campaigns

The State Bar has 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).

FEC v. Wisconsin Right to Life clarified the legal line between express advocacy and issue advocacy. The Court explained that “genuine issue ad[s]” “focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter.” That explanation of issue ads—which are exempt from the MCFA definition of “expenditure” under the 2004 interpretive statement—makes clear that no ads identifying candidates for judicial office can fairly be described as issue ads. A judicial candidate, unlike other candidates for elective public office, is not in a position to be lobbied on issues. A judge’s decisions must be driven solely by the facts of the case before the court and by the law as it applies to those facts. The only issue advocacy directed at a judge must take place within the courtroom. Because a judge may not constitutionally be influenced by public advocacy, it is not reasonable to interpret “issue ads” as efforts to influence judicial behavior rather than voter behavior. For these reasons, payments for advertising related to judicial candidates do fall within the scope of the MCFA definition of “expenditure” and can never constitute issue advocacy exempt from that definition.

Caperton provides another compelling reason to change the interpretation for judicial campaigns.  In Caperton the U.S. Supreme Court recognized that “there is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” To determine whether a campaign expenditure rises to the level where the candidate-beneficiary ought to be disqualified in a future case, the candidate and the public must know where the funds for the expenditure came from, what percentage of the total expenditures for the candidate they constituted, and whether the funder had a case or cases pending in the court for which the candidate seeks a seat. MCR 2.003 makes the judges’ obligations under Caperton clear and shows why it is important that the source of judicial expenditures be disclosed. In the absence of disclosure, a judge who has prevailed in a campaign in which there were significant undisclosed electioneering expenses may not be able to determine whether grounds for disqualification under this rule exist, or to defend himself or herself against suspicions of bias or favor. Nor can parties appearing before a judge and the lawyers who represent them determine whether they have grounds to make a motion under MCR 2.003 (B)(c)(1)(b).

FInally, Citizens United makes clear that disclosure requirements do not have to be limited to express advocacy and its functional equivalent, and that disclosure is the less restrictive, and hence preferable, alternative to more comprehensive speech regulations. Citizens United says further that the public has an interest in knowing who is speaking about a candidate shortly before an election.

Polling throughout this state and the nation has consistently shown that the public overwhelmingly and emphatically agrees with this conclusion.

Under the MCFA, the Secretary of State must issue a declaratory ruling within 60 business days of the request, or provide an informational response to the questions presented within the same time frame. The State Bar believes that a ruling is “urgently required” in light of next year’s judicial election cycle.