Luke urges greater transparency in judicial elections

Peter Luke has a column addressing last week’s ruling in Caperton v Massey, in which the Supreme Court ruled that massive contributions to a judge’s campaign are grounds for the judge to be forced to recuse himself. Luke notes that requiring recusal in Michigan is made more difficult by the fact that most campaign contributions don’t even have to be disclosed:

Rich Robinson, finance watchdog’s director, called on the state’s high court to clarify precisely those points.

But for a disqualification rule to work, he said, a justice must be fully aware of the donations, direct or indirect. That is not possible now.

Individual contributors to the Democrats and the Chamber, which paid for the TV time, do not have to be disclosed because the spots were “issue” ads. But it is a good bet that union and trial lawyers funded the Democrats, and business interests funded the Chamber.

Lawmakers are unlikely to close that disclosure loophole. But Robinson said justices should require litigants with business before the court to disclose their contributions. Especially the millions now shielded from view.

Under state law, only direct contributions to a candidate or to the political parties have to be disclosed. But the majority of funds in judicial elections are not given to candidates or parties but to third party interest groups that then pay for “issues ads” that quite clearly favor one candidate over another.

It’s all done with a wink and a nod. The “issues ads” put out by the Michigan Chamber of Commerce were undoubtedly done to support Cliff Taylor and hurt Diane Hathaway, and vice versa for third party groups supporting Hathaway. This provides a massive loophole through which those with business pending before the court can essentially fund the election campaign of a judge without having to disclose that they did so.