Campaign Contributions and The Michigan Supreme Court By Samantha Sanchez March 2002

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1 Campaign Contributions and The Michigan Supreme Court By Samantha Sanchez March 2002 Over the last decade, the cost of running for a position on a state Supreme Court has been increasing dramatically in many states, Michigan among them. As courts become political targets, campaigns for seats on the Supreme Court become more heated and that, in turn, forces judicial candidates to raise increasingly larger campaign war chests. The issue of whether the increased pressure to raise funds affects the candidates for the Court deserves scrutiny. Questions have arisen about the practice of accepting campaign contributions from people who might appear before elected justices as attorneys or parties in a case. Indeed, 89 percent of the cases decided by the Michigan Supreme Court involved a contributor as either a party or as an attorney, although more than half of those cases involved a state-employed attorney who had made a campaign contribution and who was representing the state, not a private client, before the Court. The purpose of this study, prepared with a grant from the Joyce Foundation, is to collect and publish the underlying data as part of the dialogue on judicial independence. This study is intended to gather together the data on the cost of judicial races, who gives to judicial candidates, how much they give, what their business interests are and whether or not they appeared before the Court. hile it is beyond the scope of this paper to determine whether this relationship has caused any bias in the Court s decisions, the proportion of funds that come from litigants is relatively small. In fact, the vast majority of campaign contributors had no cases before the Court and most litigants who appeared before the Court had not contributed. A summary of the findings follows.

2 SUMMARY Supreme Court candidates raised over $9.5 million during the five election cycles covered in this study. The average raised by all candidates and by winning candidates has more than doubled over the five election cycles from to. The average for all candidates increased from $175,854 in to $406,915 in ; for winning candidates, it increased from $360,287 to $749,236 in. The average contribution size more than tripled from to but declined in, from as low as $152 to a high of $500, dropping to $374. awyers contributed nearly $2.8 million to candidates during the five election cycles and made up 23 percent of the contributors. At least 80 percent of these attorneys did not appear before the Court during the study period. In cases heard before the Michigan Supreme Court between and 1999, 89 percent involved a party, lawyer, business or other organization that made a contribution to a justice during the eight year period but more than half of those cases involved attorneys working for the state. The contributor-litigants constitute 4.5 percent of all contributors, and they gave 6.2 percent of all funds. Thirty-five percent of the attorneys who argue before the Michigan Supreme Court have made a contribution to a judicial candidate. Political parties contributed nearly $900,000 to these nonpartisan races. The cost of winning ranged from a low of $186,605 to a high of $1,094,815. Nearly half of all campaign expenditures were for media expenses. The Money in Judicial Politics Project of the National Institute on Money in State Politics was developed to track contributions and spending in Supreme Court elections in a number of states, including Michigan. To compile a complete campaign profile of the Court that included at least one election for each of the sitting justices, data was collected for an eight-year period, to. Databases were created of all campaign contributions to all winning candidates during the study period, and those contributors names were matched against a database of the parties and attorneys whose cases were heard by the Supreme Court from 1991 through During that time, 26 candidates sought one of the seven positions, several of them more than once, and raised a total of $9,536,710. The 2000 Supreme Court races, where nine candidates spent a total of $6,352,002 in just one election, are not included in this study because those elected have not yet participated in enough cases to make the process of matching contributors and litigants worthwhile. Note that the data, though a comprehensive listing of the contributors to Michigan Supreme Court candidates, is necessarily a small dataset. Averages or trends calculated from such a small sample can be misleading and should be read with caution. A summary list of the cases is attached as an appendix, and the complete databases are available on request. 2

3 Average Funds Raised by Judicial Candidates - $800,000 $700,000 $600,000 Average $ inner $ Avg 3 winners $749,236 $500,000 $400,000 $300,000 2 winners $360,287avg 2 winners $413,682 2 winners $279,856 $265,650 $325,396 2 winners $384,232 $406,915 $200,000 $175,854 $205,541 $100, candidates 6 candidates 5 candidates 6 candidates 9 candidates (2 w/ ) (2 w/ ) (2 w/ ) (3 w/ ) The average cost of running for the Michigan Supreme Court has risen over the past decade, more than doubling from to, as shown in the chart above. The funds raised increased an average of 25 percent each election cycle to a high of almost $407,000 in. In comparison, the two candidates for governor in raised an average of $5.2 million each. The average cost of winning a seat on the Supreme Court also has more than doubled in that time, and the winning candidates in three of the five elections raised more than three times as much as their opponents. A complete list of candidates with the totals they raised is shown in the following chart. Asterisks mark those candidates whose complete contributor lists are included in the database used in this study but the records of several candidates in the and election cycles have been destroyed by the state and are no longer available. Fortunately, at least one election cycle for each winning candidate is included, as well as losing candidates in the more recent elections, so 84% of the money is included in the detailed database, a total of $7,968,916. One candidate not included, Kathleen I. Jansen, raised and reported a combined total of $105,020 in and but did not run for judicial office. Three other candidates who filed but raised no money and did not run are also excluded. 3

4 Year Recipient Contrib $ Status BOYE, PATRICIA J* $448,545 CAVANAGH, MICHAE F* $272,028 DURANT, CARK $314,842 HAHN, CHARES HUGHES, JUDY H $19,709 KAUFMAN, JERRY Average $175,854 KAUFMAN, JERRY KEY, MARIYN $115,046 MAETT JR, CONRAD $579,525 RIEY, DOROTHY $247,839 RODDIS, ROBERT TABOT, MICHAE J $290,833 Average $205, GRIFFIN, RICHARD* $194, KIEEN, GEORGE F* $61, MAETT JR, CONRAD* $373, SHETON, DONAD E* $512, EAVER, EIZABETH* $186, Average $265,650 BRICKEY, JAMES* $228,935 COOPER, JESSICA* $133,658 GAGE, HIDA* $676,304 KAUFMAN, JERRY* 4

5 KEY, MARIYN* $539,530 MURPHY, IIAM* $699,348 RAAFAUB, DAVID* Average $325,396 ABE, MATTHE R* BORMAN, SUSAN D* $620,583 CAVANAGH, MICHAE F* $235,347 COINS, JEFFREY* $202,162 CORRIGAN, MAURA DENISE* $1,029,815 KAUFMAN, JERRY* RAAFAUB, DAVID* TAYOR, CIFFORD * $982,547 YOUNGBOOD, CAROE F* $591,787 Average $406,915 The average number of contributions raised by winning candidates was 2,215 in the elections, with an average size of $152. That average number of contributions dropped to 948 and 798 in the 1994 and cycles but the size of the average contribution rose sharply to $292 and $500 respectively. The average number of contributions increased nearly threefold in to 2,202 per candidate while the average size of the contribution dropped to $365. By, the average number of contributions was nearly identical with the election but the contribution size more than doubled. Compared to the election fundraising patterns, the candidates are increasingly seeking funds from a broader selection of supporters, which increases the chance that they will encounter a contributor in the course of their judicial responsibilities. Sources of Funds The database of contributions reported by the candidates during the five election cycles covered lists contributions that total $7,968,916. The sources of 89 percent of that money have been identified and classified by business sector or party, but the frequent lack of such identifying information as occupation or employer in 5

6 the reports filed by the candidates makes it impossible to classify the remaining 11 percent. As the chart below illustrates, attorneys and political parties are the leading sources of funds to judicial candidates. Sources of Contributions to Judicial Candidates, - Agriculture Candidate Communic/Electronics Construction Energy/Nat Resource Fin/Ins/Real Estate General Business Health Ideology abor $56,100 $166,019 $40,122 $196,812 $85,446 $494,812 $502,818 $369,639 $17,430 $763,746 awyers $2,878,492 Other (non-business) $295,872 Party $933,942 Small Contributions Transportation $24,108 $231,281 $500,000 $1,000,000 $1,500,000 $2,000,000 $2,500,000 $3,000, Attorneys Attorneys contributed $2,878,492 of the total $7,968,916 contributions in the database, or 36 percent of the funds. Attorneys were 3,130 of the 13,435 contributors, or 23 percent of the individuals and businesses that contributed to candidates. Attorney organizations, such as the Trial awyers, the Michigan Defense Trial Counsel PAC, the ayne County Bar PAC and the Association of Defense Trial Counsel, gave $240,500 of the attorney total, with all but $7,500 of that coming from the Trial awyers Association. At least 80 percent of the attorneys who contributed did not appear before the Court in any capacity, and two-thirds of the attorneys who appeared before the Court did not contribute to any judicial candidates. 2. Political Parties Despite the fact that Michigan s Supreme Court elections are non-partisan, the political parties nominate candidates for the Court and then contribute 6

7 substantially to the candidates they have put forward. Over the course of the five election cycles in this study, the parties contributed $874,806 to judicial candidates, and candidates for various partisan offices in Michigan contributed another $41,924. Combined, that constitutes nearly 12 percent of the funds raised by all candidates, a remarkable figure for nonpartisan elections. Nonpartisan candidates, generally other judges, contributed another $17,113 to judicial candidates. The parties support was not evenly provided, however, with Republicans outfunding Democrats nearly five to one: Republican party committees and partisan candidates provided $723,910 to their candidates, compared with $150,895 from Democratic party sources. In fact, the Michigan Republican State Committee was the number one contributor to judicial candidates over the five elections, contributing $523,144. Four of the eight candidates who received contributions from Democratic sources won their elections, while four of the seven who received funding from Republican sources won theirs. Judicial candidates also contributed funds back to party committees, sometimes for tickets to events or for advertising in party literature, mailings and the like. All told, payments to parties amounted to $27,943 by 11 different candidates over the five election cycles. 3. Self Funding Candidates themselves contributed $166,019 to their own campaigns, just 2 percent of the total funds raised. Eleven of the 26 candidates used their own money, ranging from a low of $100 to a high of $88,054, spent by Justice Marilyn Jean Kelly in her successful race. itigants and Contributors In order to assess the frequency with which a contributor to a judicial candidate appeared before the Michigan Supreme Court, only the funds raised by winning candidates, i.e., those who actually heard cases, were examined. Those contributions amounted to 53 percent of the funds raised by all candidates. Matching the list of the contributors who gave money to winning candidates with the list of parties and attorneys who have appeared before the Court shows that 598 contributors 580 individuals and 18 businesses and organizations - appeared on both lists. These litigant-contributors appeared in 650 of the 732 cases, or 89 percent of the Supreme Court s docket. The businesses and organizations consisted of labor organizations, banks, political party committees, automakers, law firms, insurance companies and a variety of other corporate entities. Together, those 598 contributors donated $507,176, or 11.6 percent of the funds raised by winning judicial candidates and 6 percent of the funds raised by all candidates. The contributions ranged in size from $7 to $97,000 (from the Michigan Trial awyers), with all but six contributors giving $7,500 or less. The 7

8 average was $848 per litigant-contributor, compared with the average $610 from all contributors. Do Contributors in? Given the importance of judicial impartiality, a system that forces candidates to seek funds from those they know raises questions of favoritism. However, it is nearly impossible to accurately evaluate whether contributors receive better treatment because of their contributions. The cases that go before the Supreme Court of any state involve the most complicated legal questions that the state s legal system produces, and the result can be split decisions or complex holdings that are not easily scored as a victory for one party or the other. Furthermore, it is impossible to guess whether the successful party would have been successful without the contribution since, unlike the situation that arises with contributions to legislative candidates, one of the two parties before the Court will prevail, with or without contributions. Further, in 38 percent of the cases involving contributor-litigants, parties on both sides of the case gave campaign funds with the balance varying from case to case. astly, 53 percent of the cases involved a public attorney working for the state who made a contribution to a judicial candidate. A list of the cases and the dollars contributed from each side is attached. In summary, of the 648 cases that involved a contributor as a party, an attorney or an amicus to a winning judicial candidate, there were: 217 cases in which contributions came only from the winning side of the case, although 124 of those cases were won by the state; 119 cases in which contributions came only from the losing side of the case, of which 47 cases were lost by the state; 58 cases with split decisions; 23 cases in which the only funds came from a party filing an amicus or friend of the court, brief; 231 cases in which contributions came from both the winning and losing parties. In 128 of those, the winning parties contributed more than the losing parties did, an average of $3,696 compared with an average of $365. In 96 cases the losing side gave more, averaging $3,420 compared with an average of $424 from the winning side. In seven cases, both sides gave the same amount. A more detailed evaluation of the lawyers and litigants who contributed the largest amounts of money follows. A complete list of the Supreme Court cases and the money contributed by each side in the case is in Appendix A. a. The awyers Of the 598 contributor-litigants, 565 (97 percent) are lawyers, a figure which includes attorneys representing the state or a county government. Attorney General Frank Kelley, for example, is listed in 319 cases, though his contributions over the years total less than $1,000 and his treatment by members of the Court as he represents the state in important cases seems unlikely to be affected by his 8

9 contributions. Another 77 state or county attorneys who appeared before the Supreme Court contributed a total of $17,800 to winning candidates, for an average of $231 each per contributor-attorney. In total, attorneys representing the state were involved in 346 cases, over half (53 percent) of all the cases involving contributors. They won 194 (56 percent), lost 83 (24 percent), and got split decisions in 24 cases (7 percent). In 21 cases, state attorneys were on both the winning and losing side, usually criminal appeals involving the attorney general and the state appellate defender on opposing sides. In the remaining 24 cases, they submitted amicus briefs to the Court. hile lawyers supplied 36 percent of all the funds raised in the five election cycles, they gave only 24.7 percent ($1,082,476) of the funds that were contributed to winners, suggesting that members of the bar were less likely than the rest of the contributors to give to a justice before whom they would later appear. As a group, attorneys who appeared before the Court gave $630,640 to all candidates but only $214,564 (34 percent) of that went to winning candidates. The pattern is especially true for the law firms that contributed most heavily. In contrast, the giving by attorneys working for the state was not great ($18,700), but 79 percent went to winning candidates. Attorneys in private firms did not fare so well. It can also be important to examine the total giving by all members of a law firm, even those who did not appear before the Court, to evaluate their potential influence in matters before the Court. The law firm that has contributed the most to judicial candidates over the five election cycles is Sommers Schwartz Silver & Schwartz, whose attorneys gave a total of $344,403, from the firm and 53 individual attorneys. However, only $41,735 (12 percent) of that went to winning candidates who then became Supreme Court justices and the nine Sommers Schwartz attorneys who actually argued cases before the Court gave just $4,532 to members of the Court. The law firm was involved in 23 cases during that period, four of them by filing an amicus brief. Of the remaining 19 cases, they won three, lost 12 and got split decisions in four. The Michigan Trial awyers Association contributed $301,500 to candidates over the five election cycles, but only $97,000 went to winning Justices. The group was involved in 72 Supreme Court cases, but 71 of them were as amicus. In one case it was a plaintiff, joining four other lawyers associations suing ayne County over lawyer compensation for court-assigned cases. They won their appeal. Chambers Steiner is the next largest contributor, with 19 attorneys contributing a total of $68,729 over the five elections. However, only $5,600 was contributed to winners. Of the seven Chambers Steiner attorneys who had cases before the Michigan Supreme Court, four contributed a total of $3,700 to members of the Court. The firm handled 16 cases, winning seven, losing eight with the final case a split decision. opatin Miller attorneys contributed $51,575 over the five elections, with 12 attorneys donating. However, only $8,475 went to winners, and the three attorneys who actually appeared before the Court gave just $1,565 to winning 9

10 candidates. They appeared in 12 cases, winning two, losing eight and splitting one decision. They also appeared in one case by filing an amicus brief. Dickinson right is a law firm whose contributions went primarily to winning candidates, and the firm was involved in 60 cases. The firm s attorneys contributed $38,574 over the five election cycles, $30,614 going to winners. Of the 60 cases, they won 12, lost 14 and had 15 split decisions. In the remaining 19 cases, they filed amicus briefs. Only two cases of attorney discipline involved contributors as defendants and both attorneys lost their appeals before the Supreme Court. b. Automakers The auto manufacturing industry has always played a prominent role in Michigan politics, and its contributions to Supreme Court candidates totaled $204,261 over the five election cycles. Of that, $158,841 went to winners. Ninety percent of the auto-related contributions were given in the election, and over half of all the funds went to Justices Corrigan and Taylor in what appears to be a pattern of general corporate support. Justice Corrigan, for example, received 129 contributions (a total of $53,150) from executives and attorneys for auto manufacturers. Sixty-three of those were received all on the same day, September 19, : 27 contributions from General Motors employees totaling $5,425; 34 contributions from Chrysler employees, totaling $18,250; and two from Ford employees for $1,250. Justice Taylor received 146 contributions from employees of the big three automakers for a total of $62,325 and received 23 of them on September 15,. The automakers were not before the Supreme Court in 1999, the last year of the docket data collected for this study and the first year in which Justices Taylor and Corrigan served on the Court. However, prior to that, Chrysler had been involved in 10 cases, of which the company won 5, lost 3, had one split decision and participated in one case only as an amicus. Ford Motor Co. was involved in three cases and lost all three Supreme Court appeals. General Motors appeared in 14 cases, winning six and losing five. The company appeared only as an amicus in three cases. c. Insurance Insurance companies, their employees and insurance brokers contributed $99,855 to candidates over the five election cycles. The two largest sources in that group were AAA Automobile Club ($11,720, with $5,770 of that to winners) and Blue Cross/Blue Shield ($54,320, with $41,620 to winners). Blue Cross was involved in five cases, winning two, losing two and filing an amicus brief in the fifth case. AAA was involved in 29 cases, winning 12, losing six and getting split decisions in four. In the remaining seven cases, they filed amicus briefs. In general, the Court heard 265 cases involving insurance companies, with the companies filing amicus briefs in 95 of those. Of the remaining 170 cases, they won 69 (41 percent) lost 72 (43 percent) and split 29 (17 percent). 10

11 d. Unions The AF-CIO, including both the Michigan and the Detroit offices of the union, gave candidates $74,775, of which $69,275 went to winning candidates. The union appeared in 46 cases, virtually always with another labor union, representing teachers, autoworkers or state employees, so it seems appropriate to treat all those contributions together for purposes of this analysis. Combined, those unions gave $403,740 to all candidates, $258,815 to winners. The unions were involved in 57 cases over the eight years, but only as an amicus in 51 of them. Of the remaining six cases, they won three, lost two and split one. Michigan Judicial Campaign Expenditures e. General Business Chambers of commerce were the leading source of funds in the general business category, contributing $177,059 to Supreme Court candidates. On the Supreme Court docket, they were involved in 21 cases, all as amicus. Expenditures The candidate expenditure reports list the expense amounts and the reasons for the payment in general terms. Nearly half the total expenditures of $6,427,958 accounted for by the candidates went to media sources for advertising. hile $3,508,823 was paid directly for media expenses, another $1,404,450 was spent for advertising expenses for signs and printing. Campaign consultants earned $476,348, or 7.5 percent of the total spent, which can include media or advertising expenses within the lump sum paid for their services. Administrative expenses are the rent and telephone bills paid by the campaigns and could include travel and other overhead costs, such as Purpose MEDIA ADVERTISING ADMINISTRATION CONSUTANTS EVENTS FOOD/TRAVE PRINTING CONTRIBUTIONS PYMT TO PARTY /CONTRIBUTION SMA EXPENDITURES PYMT TO PARTY /ADVERTISING PYMT TO PARTY /ADMINISTRATIVE TICKETS PYMT TO PARTY /COORDINATED CAMPAIGN PYMT TO PARTY /EVENT PYMT TO PARTY /ENDORSEMENT PYMT TO PARTY /GOTV PYMT TO PARTY PYMT TO PARTY /MEDIA 11 Expenditure $3,508,823 $1,404,450 $714,758 $476,348 $179,606 $46,737 $39,641 $20,686 $10,000 $5,749 $7,066 $3,650 $3,216 $2,667 $2,325 $1,750 $300 $150 $35 $6,427,958

12 stationery. hen travel expenses are separately itemized in the reports, they are so described in the list on the right. Expenses for events are generally the cost of renting the space and paying for the catering for a campaign event, and sometimes includes special personnel expenses related to the event. 12