Speaking in Code — The Michigan Supreme Court Race, 2012 Edition

So Michiganders, you say “gimme a break!” You’ve had it with all those political 3rd party issue ads, enough already.

Hah! The November general election is going to make you throw your remote at your flatscreen — oh no, you’ll not just “want” to throw it — you’ll actually throw it. (Check your homeowner’s insurance policies.)

Apologies gentle voters, but the anticipated Supreme Court issue ads promise to make your eyes and ears bleed. You see, not one, but two of Michigan’s high court justices are up for re-election this year. Double the fun and apparently, ten-times the annoying ads. 

Supreme Court contests produce more issue ads than other political races in Michigan because judicial candidates are bound to an entirely different set of rules which hobble their ability to personally sling the mud, so they count on third parties to do all their dirty work.  These races have a history of being a hotbed for outright absurdities and improprieties in campaign issue ads.

Incumbent or not, a Supreme Court candidate is bound by specific campaign rules found in the Michigan Code of Judicial Conduct. In that code we find Canon 7 B (1) (d) — which states:  

“A candidate, including an incumbent judge, for judicial office:  should not knowingly, or with reckless disregard, use or participate in the use of any form of public communication that is false.” 

This is significant, all other political candidates are surprisingly not generally bound to be truthful in advertising, although television and radio stations are legally responsible for the veracity  of all issue ads, they exercise no control over candidate ad content.

Judicial candidates are not permitted to personally lie, so someone else must do it for them.

And Michigan, here’s the best part — this year, the judicial issue ads will span the political spectrum — flinging deceptive crap like angry chimps, from the far left to the far right.  Yes, there will be something for everyone this Fall.  Two of Michigan’s high court luminaries are up for re-election:  Marilyn Kelly (D), and Stephen Markman (R).  Add that in with other factors — history, politics, plus the Citizens United ruling allowing corporate money to flood our elections, and we have the makings of banner year — it’s the formula for the perfect shit-storm of issue ads. 

Michigan Supremes are first nominated by their respective parties, but thereafter pretend to be completely non-partisan, as required by law. It’s a sham that grows more and more comical with each election cycle.  Michigan high court races rank 6th in the nation in campiagn expenditures, and that’s before the Citizens United ruling.  The numbers get worse — Michigan ranks 3rd in Supreme Court race television ad spending, again, before corporate personhood.

These races are getting uglier by the year.  In 2008, Chief Justice Taylor (R) was defeated thanks to a 3rd party issue ad campaign waged by Michigan Democrats. Taylor was a member of the notorious “Engler-4”, a conservative majority that had an abominable voting record, so there was plenty of damning, yet truthful, material for them to draw from. But the Dems ignored that. Instead they ran a T.V. spot depicting him as sleeping at the bench. But the ad actually showed an actor sleeping, leaving the viewer to believe it was Taylor himself.  The ad did its job, Taylor was defeated in large part due to the memorable moniker it created in voter’s minds: “Sleeping Judge Taylor.” This ad was not only misleading, but it didn’t even address a real “issue”.

Issue ads and candidate ads are nearly impossible to differentiate if not for the “paid for” requirement. The U.S. Supreme Court attempted to define their individual properties in a 1976 ruling, Buckley v. Valeo. The opinion said that issue ads are not permitted to urge viewers to vote a particular way with language such as “vote for” or “vote against”, whereas candidate ads could use those phrases. Perhaps those rules made sense 36 years ago, but honestly, we rarely hear simplistic content like that in our current televsion fare. 

The only real and salient difference between issue and candidate ads is what we don’t know about who is behind the organizations running those issue ads. Specifically, who’s money is buying the ads. Voter ignorance of this is no indication that the beneficiary candidate is unaware of who their corporate sugar-daddies are. In fact, it would be naive to think they don’t know.

With 63% of Michigan voters believing that campaign money influences judicial decision making, it seems voters are not naive after all. The National Institute on Money in State Politics reports in The New Politics of Judicial Elections in the Great Lakes States, that 86% of cases before the Michigan Supreme Court involved one or more campaign contributors to one or more of the justices. And, that’s just the money we know about because it’s been properly reported under the rules set forth in the Michigan Campaign Finance Act. However, the overwhelming bulk of the money is spent by shadowy third-parties on issue ads, of whom we know virtually nothing.

Michigan’s high court judges are for sale and the voters don’t know who’s buying them. Sure, one can venture a guess based on their judicial record. But they’re certainly not going to tell who’s pulling their strings, in fact they mustn’t tell, because of Canon 7 B (1) (d) — It’s Code for keeping it a secret.

Please don’t throw your remote at the T.V.  There is something you should do that can make a real difference. Since T.V. stations are legally laible for the veracity of issue ads, you can tell them to shape-up by going to Flack Check – Michigan. This is a site that tracks and posts dubious issue ads by market area, and provides links to easily register complaints with the broadcasting station. How will this make a difference? If viewer complaints convince just one major carrier to reject the content of an issue ad, it will have a cascade effect starting with the third-party producer who will be forced to change that ad, and will likely run the replacement across all markets. Just a few victories, here and there, will serve as a warning to both the producers and the broadcasters  — that the public is watching them.

Amy Kerr Hardin  democracy-tree.com




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2 Responses to Speaking in Code — The Michigan Supreme Court Race, 2012 Edition

  1. Donna says:

    Do I have your permission to share this on facebook.

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