Michigan’s Supreme Court is Poised to Decide the Fate of the Bar Association Over their Strong Stand Against Judicial Dark Money
Last Friday was the fifth anniversary of the landmark U.S. Supreme Court decision, Caperton v. Massey, in which the court ruled 5 to 4 that it is unconstitutional for a state supreme court justice to hear a case in which one of the parties was a major contributor to their campaign. To mark the anniversary, Justice at Stake’s Executive Director Bert Brandenburg issued this statement:
“Since Caperton was decided in 2009, a crisis of confidence in the judiciary has escalated, not receded. In Caperton, the Supreme Court of the United States prodded states that elect judges to do something about the threat to justice posed by special interest spending that can influence decisions in the courtroom. Yet since then, too few states have enacted or even considered meaningful measures to keep cash out of the courtroom.
“The threat to impartial courts has grown since Citizens United in 2010. Special interest money has flooded into judicial elections through outside channels. Now, almost nine of 10 Americans believe that campaign cash is affecting courtroom decisions.
“Caperton’s message has only grown stronger: Every state that elects its judges needs to take steps to ensure that justice is not for sale. These measures could include a range of steps, including stronger recusal and disclosure rules, and providing public financing for judicial elections—or adopting a merit selection system as an alternative to contested elections.”
Michigan’s judiciary is the nation’s poster child for the corrosive influence of money in the courts. In the 2012 election cycle, state judicial races drew a jaw-dropping $14 million in “dark money” in the form of third-party issue ads where the donors are not publicly disclosed.
Last September, when state lawmakers gathered at the 30th biennial Republican Leadership Conference, one of the hot topics of conversation was a legislative plan to stick it to the Michigan Bar Association — all because they had taken a stand against pending legislation meant to codify and expand dark money in judicial races. Sen. Arlan Meekhof (R-30) was the sponsor of the corrupt campaign finance law which attorneys found so objectionable, and he also crafted a retaliatory bill designed to make the Michigan State Bar Association suffer for their firm public stand against his proposal.
In what turned-out to be an unsuccessful effort to curb undisclosed money, the Michigan State Bar Association had filed a formal request with Secretary of State Ruth Johnson to require public disclosure of all donors to third-party issue ads in judicial races. The Michigan Bar was joined by the Brennan Center for Justice and the watchdog organization Justice at Stake in demanding accountability in judicial issue ad spending.
At the same time the Michigan Bar made its formal request, Meekhof was making the rounds trying to sell his plan to do just the opposite — he wished to further obfuscate campaign funding in Michigan. In the end, the Senator won the policy battle when his controversial bill was signed into law – Public Act – 252 doubled the amount individuals may give to a candidate, and gave a legislative nod to the non-disclosure of individual contributions to issue ads. Rich Robinson, of the watchdog group Michigan Campaign Finance Network, described Meekhof’s bill thus:
“The bill now attempts to preclude any possibility for disclosure of the millions of dollars of dark money in our state campaigns. The message from Sen. Meekhof and his colleagues who supported this bill is, just let money have its way in politics – without limits and without accountability.”
Meekhof subsequently introduced SB-743 which would make bar membership voluntary, thereby impairing their ability to collect dues. Michigan’s 43,600 bar members pay only $300 a year. Proponents of a voluntary bar framed their argument as similar to those for right-to-work. It’s no secret that there is much cross-pollination between shadowy third-party donors and right-to-work advocates — a situation that casts a new spin on the right-to-work push on the Michigan Bar Association. Greg McNeilly, president of the Michigan Freedom Fund, claimed to be deeply concerned about the plight of lawyers in the state. MLive reports he said:
“They shouldn’t be second-class citizens. We need to give them the freedom to practice. Other states do that. They don’t have compulsory, mandatory bars. So why should Michigan? We need to be the freest, best place for anybody to practice any profession.”
Michigan Bar leadership disagreed, stressing the importance of their governance structure. Bruce Courtade, former president of the Michigan Bar, said this:
“My response was, we’re not a union. We’re not an employer. There are so many reasons for us to remain a compulsory, mandatory bar, including the fact that there is a discipline system set up that the profession itself is regulating. So it would require setting up a new system to do that.
There would be so many initiatives that benefit the justice system that would be compromised if we went to a voluntary bar. I think it would be really unwise.”
Last February, at the request of the state bar, a task force was created by the Michigan Supreme Court to study the issue, hear input, and report their findings back to the high court, where additional public opinion will be accepted through Aug. 4th.
After nearly a dozen meetings and numerous requests for membership input the task force findings were released last week — coinciding with the anniversary of the Caperton v. Massey. They reported that “a clear majority supported the continuation of the mandatory state bar.”
Additionally, they offered several recommendations.
The first being to keep the state bar mandatory. They found the system to be efficient, professional, and cost-effective compared to alternatives.
In Michigan, the cost of regulating the legal profession is borne entirely by attorneys licensed to practice law, at a cost below the national average. Through a long-established infrastructure of volunteer-attorney driven programs, the state bar delivers a variety of services to the public at no cost to taxpayers.
The report goes on to make a special request of the court:
We urge the Court to use this moment of heightened attention to clarify the role of the State Bar by emphasizing that its primary role is to serve the public interest.
The bar’s objection to both pieces of Meekhof’s legislation can easily be argued to be in the best interest of the public. Citizens expect impartial courts — uninfluenced by dark money. They additionally deserve a trusted regulatory structure for the state’s legal system.
While the task force did not examine the specifics of the recent legislative advocacy, they did recommend that the bar not engage in future advocacy. It was further recommended that the First Amendment rights of its members should be protected through a strict interpretation of a 1990 U.S. Supreme Court ruling, Keller v. State Bar of California, in which it was found that members of a mandatory bar association should be protected from subsidizing political activities through compulsory dues.
Sad ironies abound. The fate of the Michigan Bar falls into the hands of the same court that is considered one of the worst in the nation in terms of money and politics. And this whole thing started with bar leadership strongly advocating for an impartial judiciary, free from the corruption of dark money.
Read about Michigan campaign finance reform here.
Learn more at Michigan Campaign Finance Network.