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Campaign Donations Tilt State’s High Court

Big Republican money edge aids election of conservative majority

September 24, 2006 |
Great Lakes Bulletin News Service


Two incumbent justices, conservative Maura D. Corrigan and liberal Michael F. Cavanagh, are running for two spots on Michigan’s high court.

You wouldn’t think that this year’s judicial elections for the Michigan Supreme Court would be such a hotly contested, or expensive, race.

Just two seats are open and the two incumbents who occupy them—conservative Justice Maura D. Corrigan and liberal Justice Michael F. Cavanagh—are running for reelection. And with five conservative and two liberal judges on the bench, conservatives will retain their majority regardless of the election results.

Yet despite the seemingly low stakes of this year’s election, the two incumbents and the two other candidates running against them—Republican Marc Shulman and Democratic candidate Jane Beckering—are expected to attract a prodigious amount of cash, according to Rich Robinson, the executive director of Michigan Campaign Finance Network, a Lansing-based coalition of organizations and businesses concerned about the influence of money in politics.

“I think it would be entirely reasonable to expect a low key campaign this year, except for the trend that over the last several election cycles the campaigns have gotten noisier,” Mr. Robinson said. “We’re almost at a point now where, whether it’s rational or not, we have to be prepared for some special interest group with more interest than common sense to step in and spend huge amounts of money.”

That is because outside interest groups, including unions, trial lawyers, and especially business interests, have much to gain or lose from how broadly or narrowly the state judiciary interprets safety, consumer protection, public interest, tort, employment, environmental, and property rights law. And that is why in recent years business interests in particular across Michigan and the nation have channeled considerable effort—and large sums of money—towards electing conservative judges that will limit how the court’s rulings affect them.

Those efforts are starting to pay off. The growing presence of conservative justices on both the federal benches and Michigan’s high court has led to a new, and narrower, interpretation of environmental statutes, according to Judgment on Nature, a 2006 Great Lakes Bulletin News Service special series on state and federal court rulings on environmental and public interest cases. In particular, the Michigan Supreme Court’s recent decisions are gradually expanding the ability of business interests and developers to gain access to natural resources, and narrowing the authority of citizens and regulators to apply environmental statutes as broadly as they once did.

Republican Campaigns Win Cash Race
The Michigan Campaign Finance Network has documented the massive inflow of cash into Michigan’s judicial campaigns; its research shows just how heavily the cash flow favored Republican candidates over the past few election cycles.

In the 2000 state election, the most expensive judicial election yet, Republican campaign committees outspent their Democratic counterparts by almost a third, raising close to $3.9 million to the Democrats’ nearly $3 million. But it was the contributions by individuals and outside interest groups to groups not directly affiliated with either party that made the real difference—a nearly $2.5 million gap in actual spending on Republican and Democratic candidates.

Aided by Michigan’s campaign finance law, which allows unlimited contributions to political action committees, or PACs, these outside interest groups directed more than 50 times as much money to Republicans as Democrats. The resulting bottom line difference was stark: Various partisan and “independent” committees spent $5.4 million on Republicans, and just $2.9 million on Democrats.

That big difference helped to elect three conservative justices—Stephen Markman, Clifford Taylor, and Robert Young, Jr.

Significantly, the top-ten lists of donors for all three candidates were identical, confirming just how strongly wealthy individuals can radically reshape the nature of the political and ideological concerns of the state Supreme Court. Because they are individuals, the law allows them to contribute far more easily to campaigns than can corporations and unions.

Thomas Monaghan, for example, contributed $650,000 to the Ann Arbor PAC, which supported the candidacies of several conservative justices now on the Supreme Court. Mr. Monaghan is the founder of the Ave Maria School of Law, where conservative United States Supreme Court nominee Robert Bork is a faculty member. Current Supreme Court Justices Antonin Scalia and Clarence Thomas have spoken at or endorsed the school.

Laws and Loopholes
But there still are ways for powerful business interests to routinely spend large amounts of money on television and radio advertisements that favor the candidates they support. The Michigan Chamber of Commerce, for example, spent almost $1.4 million in the 2004 election on television ads supporting conservative Justice Stephen Markman, according to a report by Mr. Robinson’s groups. Because the ads never explicitly said to vote for Justice Markman, the Chamber did not have to identify the businesses that put up the money for the campaign. This type of campaigning, known as “issue advertising,” has become prominent in Supreme Court judicial campaigns. It also is unregulated by campaign finance laws.

One of the biggest organizations in the Republican money-giving apparatus is M-LAW (Michigan Lawsuit Abuse Watch), which is “largely the creation of the American Tort Reform Association, a Washington-based organization that receives funding from the insurance industry, tobacco companies, and many other businesses,” according to a study published by John Echeverria, executive director of the Georgetown University Environmental Law and Policy Institute.

Mr. Echeverria published a report in 2000 that identified M-LAW as “essentially a conduit for corporate spending on advertising and other public outreach efforts designed to influence the outcome of judicial elections.” For example, in 1996, M-LAW spent “$311,200 on television advertising, $46,000 on radio advertising, $19,900 on ‘production of paid media,’ and $94,000 on ‘media and other consultants’” aiming to create a more conservative Michigan Supreme Court—for a total of $471,100. Because M-LAW did not specifically endorse a candidate, it was able to far exceed what political actions committees can spend on one statewide candidate in one election: $34,000.

Though the Democratic Party enjoys significant and reliable support from labor interests, as well as organizations of trial lawyers, they have not been able to compete financially with the Republicans. In the four elections held from 1994 to 2000, the Michigan Trial Lawyers Association PAC supported only the 10 Democratic Supreme Court candidates. They spent the maximum amount a PAC can on each one, for a total of $340,000, according to the Campaign Finance Network. The United Auto Workers spent $309,000 and the Michigan Education Association spent $241,000 supporting the same 10 candidates.

Together, the three groups, which were the strongest financial supporters of Democratic judges spent $890,000 on four elections, less than twice what one group—M-LAW—spent on just one election. In 2004, the trial lawyers, auto workers, and teachers supported the re-election of liberal Justice Marilyn Kelly, and spent $34,000 each.

In 2006, Justice for Sale
Judging from Justices Corrigan and Cavanagh’s previous campaigns, campaign donations awarded along partisan lines are likely to play a major role this fall.

Justice Corrigan, who was chief justice from 2001 to 2004, won her first Supreme Court seat in the 1998 election. She has since established herself as one of the most conservative justices on the court. Justice Corrigan was heavily supported in her last election by the Republican Party, the Builders & Contractors Political Action Committee, the Michigan Bankers Association, and the Michigan Chamber of Commerce.

Justice Cavanagh, who was chief justice from 1991 to1995, has served on the Michigan Supreme Court since 1982. Justice Cavanagh, received his top financial support in 1998 from the Michigan Trial Lawyers Association and the United Auto Workers, both major Democratic players in campaign funding.

Though judicial candidates do not have party affiliations listed on the ballots, they are nominated by political parties, so campaign donors can easily discern candidates’ political inclinations, although citizens in a voting booth cannot, unless they've done their homework. Mr. Robinson and other observers expect that the pre-primary financial reports that both parties must file before their conventions will tell yet another tale of money’s political influence.

“Money determines the outcome of a lot of elections,” he said. “There is a mutually assured destruction mentality that if we can come up with more money than the other side, then we can win.”

He added: “That’s not to the benefit of justice and the rule of law, and that’s just not democratic. The judiciary is supposed to represent the rule of law, and the idea that interest groups can weigh in with their tens of thousands of dollars is absurd.”

Laura Bishop and John Latella, students at the University of Chicago and Jeff Metcalf Fellows, served as reporters and writers on the Michigan Land Use Institute’s news desk. Reach them at JLatella@uchicago.edu and Bishoplc@uchicago.edu.

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