By Katherine Duncan
November 17, 2015

Michigan is developing a reputation, and it’s not a good one. Last month, Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the IRS against a secretive political organization called Michigan Advocacy Trust for failing to disclose its donors as required by law. Michigan Attorney General Bill Schuette, who benefitted from the group’s financial backing ($3.6 million in television ads) during his campaigns, responded to CREW’s complaint in a televised interview, claiming the group is not a political organization and that he had no control over what its ads say — despite an ad appearing to have been filmed in his living room and the group itself asserting it is part of the Michigan GOP.

This is far from Michigan’s only dark money problem. Following a recently released report on spending in judicial elections co-authored by Justice at Stake, the Brennan Center for Justice, and the National Institute on Money in State Politics, Rich Robinson, executive director of the Michigan Campaign Finance Network, crowned the state the “dark money capital of American politics.”

As with Michigan Advocacy Trust’s transparency issues, and its clear effect on the outcome of the attorney general elections it was involved in, the excessive funding that flowed into the 2014 Michigan Supreme Court elections had an impact on which nominees were elected. This is a huge problem, but just as troubling, almost half of the money spent on Michigan Supreme Court elections was undisclosed. 

The report shows that, at more than $9.5 million, the 2014 Michigan Supreme Court election campaign was the most expensive and least transparent in the country. About half of the spending on the state’s 2014 Supreme Court races ($4.7 million, out of $10.4 million) was through television ads that were only reported in the public files of state broadcasters and cable systems and whose donors weren’t disclosed whatsoever. In Michigan’s judicial election, sixty percent ($4.7 million) of the money spent supporting Republican nominees (totaling $7.66 million, most of which—$4.2 million—came from the Michigan Republican Party) was “completely undisclosed.”

This is not an achievement, but yet another example of dark money’s escalating role in the nation’s elections. Transparency, especially in campaigns for elected judges, is paramount for a functioning government. As Robinson, of the Michigan Campaign Finance Network, wrote in a recent Detroit Free Press editorial

Judges are obligated to stand aside from cases involving their big campaign finance supporters. If the identities of those supporters are not known, the financial donor may appear as a litigant before the judge they substantially helped to elect. The donor’s opponent in litigation has no opportunity to make a recusal motion that is justified because his or her due process right to an impartial court hearing has been compromised.

This compounds what many people already fear about dark money in politics: that secret donors will reap undue benefits from their anonymous political contributions, and no one will be the wiser. Scott Greytak, policy counsel for Justice at Stake, echoed this sentiment, stating, “When judges have to run for election, there is a risk that the concerns of ordinary people will take a back seat to the special interests and politicians who are trying to reshape courts to fit their agendas.”

Michigan’s downward slide into dark money infamy is partially due to a 2013 amendment to the state’s campaign finance law that excludes from the definition of political expenditures advertisements that don’t use “magic words” expressly advocating voting for or against a candidate or ballot issue  (i.e., words such as “vote for,” “elect,” etc.). As a result, organizations running third-party “issue ads” that stop short of express advocacy “need not disclose the names and addresses of who paid for the ad (but do have to disclose the sponsoring organization).” This disclosure loophole opened the door to a cascade of “issue ads” that effectively advocate for or against candidates, even if they don’t qualify as “express advocacy” because of how narrowly that is defined in Michigan law.  

In a different editorial, for Bridge Michigan, Robinson criticizes this rule and the overall state of campaign finance rules in the state, arguing that “[t]ransparency is inoculation against corruption.” He further expounded, “We need fully transparent reporting of money in politics so we can connect the dots between contributions and policy considerations granted to campaign patrons.”

Although the news from Michigan is dim, progress at the state level is possible, as evidenced by important ballot initiatives passed this week in Maine and Seattle. If voters in other states, Michigan included, followed this lead, it would be a great start to reforming a broken campaign finance system at the state level.