Fair Courts E-lert: Michigan Secretary of State and Senate Disagree Over Disclosure Rules

November 20, 2013

CAMPAIGN DISCLOSURE

Michigan Secretary of State and Senate Disagree Over Disclosure Rules
The Michigan Senate and Secretary of State are at odds over whether or not to impose stronger disclosure rules for television advertisements in judicial races. Last week, Michigan Secretary of State Ruth Johnson responded to a September request from the State Bar asking for a declaratory ruling that would require greater disclosure of advertising spending in judicial elections. The Brennan Center and Justice at Stake submitted public comments to Secretary Johnson is response to the State Bar’s request, noting that an estimated $8.3 million to $13.9 million was spent on television advertisements in the 2012 Michigan Supreme Court race, none of which was disclosed to the Bureau of Elections or Michigan citizens. Secretary Johnson’s predecessor had ruled that issue advocacy ads are not expenditures under the Michigan Campaign Finance Act, thus allowing groups and political parties to run political ads without having to disclosure donors, as long as they do not explicitly endorse a candidate.

Secretary Johnson declined the request for a declaratory ruling, arguing that there was no basis in the law to distinguish judicial elections from other elections and that the declaratory ruling process was not the correct procedure for promulgating new disclosure rules. However, the Secretary’s office subsequently issued a press release stating that it was beginning the formal process to create an administrative rule “to require sponsors of those types of ads, whether positive or negative, to file formal reports with the state and meet all current campaign finance disclosure requirements.” The press release quoted Johnson as stating, “This isn't partisan—as it stands now, both sides take advantage of this loophole and get around reporting requirements by implying how voters should vote but never saying it outright with the words 'vote for.' The public deserves to know who is funding those ads so they can make an informed decision in the voting booth.”

After Secretary Johnson’s release was issued, the state Senate quickly passed a bill that would codify the existing disclosure law, in addition to doubling contribution limits to Michigan campaign committees. “Senate Majority Leader Randy Richardville (R-Monroe) said the bill simply enacts rulings already made by the U.S. Supreme Court. ‘[The] Supreme Court already made this decision that these donors don’t have to be disclosed, and so we codified what the supreme court did.’” The bill passed 20-18 in the Senate and still requires a House vote.
Sources: Secretary of State's proposal would close loophole, require ad sponsors to be identified publicly in state campaign finance records, Michigan Secretary of State’s Office, November 14, 2013; Paul Egan, State Senate aims to quash proposal for greater transparency in political ads, Detroit Free Press, November 14, 2013; Fair Courts E-lert: Arizona Supreme Court Strikes Down Changes to Judicial Nominating Process, Brennan Center for Justice, September 18, 2013; Response Letter to the Michigan Bar Association, Michigan Department of State, November 14, 2013; Michigan Should Update Disclosure Rules for Judicial Elections, Brennan Center for Justice, September 27, 2013.

STATE JUDICIAL SELECTION

Pennsylvania Representatives Introduce Merit Selection Bill
A bipartisan duo of Pennsylvania state representatives introduced a bill last week that would end the state’s practice of partisan judicial elections and replace it with a merit selection system, according to Lancaster Online. Sponsored by Representatives Bryan Cutler (R-Lancaster) and Brian Sims (D-Philadelphia), the new merit selection process would require candidates to be vetted by a 15-member panel. The governor would appoint a judge from the panel’s list of qualified candidates, who would then be subject to Senate confirmation. After serving four years on the bench, the judge would face a retention election every 10 years. “As you can see from the folks backing this effort, merit selection transcends party lines and geographical divides and pursues just one, clear goal: placing the most qualified and competent jurists in the courtroom,” said Representative Sims. The bill has many sponsors from both sides of the aisle, including former governors Ed Rendell and Tom Ridge, the advocacy group Pennsylvanians for Modern Courts, and the League of Women Voters. Rendell argues merit selection would “elevate the justice system in Pennsylvania and take it out of the political and fundraising environment.” Before the amendment can be enacted it must be passed in two consecutive legislative sessions, in addition to passing a public referendum.
Sources: State Rep. Cutler champions merit selection of statewide judges, Lancaster Online, November 14, 2013; Jon Campisi, Pa. lawmakers unveil judicial merit selection bill, The Pennsylvania Record, November 13, 2013.

Tennessee Bar Endorses Proposed Amendment to Create New State Judicial Selection Method
The Tennessee Bar Association (TBA) has put its support behind a proposed constitutional amendment that would establish a gubernatorial appointment system for state judges, requiring candidates to receive legislative confirmation and face periodic retention elections, reports the Knoxville Daily Sun. Governor Bill Haslam’s assurance that he will implement a merit selection process through executive order if the amendment is passed significantly influenced the TBA’s decision. "The advantage to the constitutional amendment, from our perspective, is that it puts retention elections squarely in the constitution," said Cindy Wyrick, president of the TBA. “The combination of merit selection and retention elections is the best way to bring fairness, impartiality, stability, consistency and clarity to our legal system.” Earlier this year, the Tennessee Legislature allowed the state’s Judicial Nominating Commission to expire without an alternative selection plan already in place. Tennessee Attorney General Robert Cooper subsequently ruled that the Governor would be allowed to appoint judges to vacant court seats in the absence of a Commission, but an Executive Order issued by Governor Haslam last month established the Governor’s Commission on Judicial Appointments, a group very similar to the expired Judicial Nominating Commission. The Governor’s Commission has already presented Haslam with three candidates to fill a vacancy on the state Court of Appeals.
Sources: Tennessee Bar Association backs constitutional amendment on judicial election, Knoxville Daily Sun, November 16, 2013; Panel presents Haslam with 3 finalists to fill upcoming vacancy on Tenn. appeals court, Associated Press via The Republic, November 14, 2013; Executive Order 34, State of Tennessee, October 16, 2013; Fair Courts E-lert: Government Shutdown Creates Dilemma for Courts, Brennan Center for Justice, October 16, 2013; Fair Courts E-lert: Brennan Center Report on Judicial Vacancies in Federal Trial Courts, Brennan Center for Justice, July 2, 2013.

JUDICIAL DIVERSITY

Minority Judges Underrepresented in Florida, Alabama, and Georgia
In a column for The Atlantic, Andrew Cohen comments on President Obama’s poor record of successfully nominating judges of color to federal courts in Florida, Alabama, and Georgia. President Obama has nominated more women and candidates of color to judgeships than any other president, but the minority populations in Florida, Alabama, and Georgia in particular are severely misrepresented on the bench. In Alabama, where African-Americans comprise 26.5 percent of the population, there have been a total of three black federal judges in the state’s history. Of Florida’s 37 federal trial judges, only one is a black female. And in Georgia, with an African-American population of 31.2 percent, a total of four black federal judges have ever served on the bench. Leslie Proll, director of the NAACP Legal Defense and Educational Fund’s D.C. office, has also commented on the lack of diversity on the U.S. Eleventh Circuit Court. Serving the states of Florida, Alabama, and Georgia, the Court currently has only one black judge. “The president's failure to nominate more black candidates in those three states, and his refusal to fight more strenuously for those black candidates he has nominated there, is not the typical give-and-take of politics,” writes Cohen. “In context, it's a capitulation to southern Republican officials, including some of the very ones who helped doom the Voting Rights Act. Indeed, at a time when minorities are being disenfranchised by Republican officials in Florida and Alabama and other Southern states, the continuing lack of black representation on our federal benches sends another strong message of a tolerance for unequal justice.”
Sources: Andrew Cohen, Why Aren't There More Black Federal Judges in Alabama, Florida, and Georgia?, The Atlantic, November 12, 2013; Fair Courts E-lert: Government Shutdown Creates Dilemma for Courts, Brennan Center for Justice, October 16, 2013.