NOTE: Effective January 1, 2000, the "180-day Fundraising Period" in MCJC 7B(2)(c) has been replaced by a fund-raising period starting on February 15 of the year of the election.
JI-111
March 21, 1997
SYLLABUS
A judicial campaign committee may accept unsolicited funds raised through fund-raisers held on behalf of the judicial candidate by law firms, interest groups, and political parties independent of the campaign committee.
A judicial candidate and the candidate campaign committee may not circumvent ethics rules on campaign fundraising by authorizing or acceding in independent fundraising on behalf of the candidate, or accepting funds raised independently, when the campaign committee would be prohibited from directly performing those fundraising activities.
A judicial candidate may attend an independent fundraiser on the candidate's behalf if the candidate committee could have directly conducted the fundraising activity.
References: MRPC 8.4(e); MCJC 2A and B, 7(A)(2), 7B(1)(a), 7B(2)(a), (b) and (c); JI-2, JI-7. JI-17, JI-92; CI-509.
TEXT
A judicial candidate asks whether the candidate campaign committee may accept funds obtained through fundraisers held by independent groups or individuals on behalf of the candidacy. Do restrictions exist when the fundraiser is sponsored by a law firm, political party, interest group, such as "Right to Life," "MADD," or a labor union? The judicial candidate asks whether the candidate's attendance at the fund-raising event affects such restrictions. The candidate further asks whether ethical restrictions are affected if the candidate is only one of several benefiting from the fundraiser.
The Michigan Code of Judicial Conduct imposes general rules which apply to all judicial activities, including fund-raising. MCJC 2A demands that "A judge must avoid all impropriety and the appearance of impropriety." MCJC 2B requires a judge to "promote public confidence in the integrity and impartiality of the judiciary." MCJC 7B(1)(a) states that a judicial candidate "should maintain the dignity appropriate to judicial office, and should encourage family members to adhere to the same standards of political conduct that apply to the judge."
MCJC 7B(2)(a), (b) and (c) state:
"These provisions govern a candidate, including an incumbent judge, for a judicial office:
"(a) A judge should not personally solicit or accept campaign funds, or solicit publicly stated support by improper use of the judicial office in violation of B(1)(c).
"(b) A judge may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support for the candidacy.
"(c) Such committees are prohibited from soliciting campaign contributions from lawyers in excess of $100 per lawyer, but may solicit public support from lawyers. A candidate's committee may solicit funds for the campaign no earlier than 180 days before a primary election or nominating convention and may not solicit or accept funds after the date of the general election. A candidate should not use or permit the use of campaign contributions for the private benefit of the candidate or the candidate's family."
In JI-92, the Committee opined that funds for judicial campaigns may be raised by persons or entities unconnected to the judicial candidate or campaign committee. Such activities were characterized as "independent events" defined by whether or not they are solicited or endorsed by the judicial candidate. JI-17. "If the additional fund-raising event is in fact 'independent' of the campaign committee, the candidate is not responsible for the event. Whether the campaign committee could properly accept any funds from the 'independent event' should be considered under the same election laws as apply to the propriety of accepting any other contribution. If the 'independent event' is in fact orchestrated by the candidate as a means of avoiding the solicitation limitations or other ethical or legal requirements, rules applicable to the campaign committee directly would also govern the 'independent event'." JI-92
In JI-17, the Committee acknowledged that a judge's committee may accept unsolicited campaign funds from persons or groups who have collected these monies independent of the candidate's campaign committee and that the Michigan Code of Judicial Conduct does not govern the conduct of such independent entities. But, lawyers may not knowingly assist a judicial candidate to violate the Code. MRPC 8.4(e).
MCJC 2A and 2B and MCJC 7B(1)(a) require that a judicial candidate maintain impartiality and the dignity appropriate to the office. JI-2 directs candidates to avoid the appearance of impropriety and to accept funds only if the contribution is motivated by a desire to support election of the most qualified candidate, and not by a desire to have an influence over the candidate. Logic dictates that the amount of the contribution, as well as the identity of the contributor must be considered, but the Michigan Code of Judicial Conduct does not impose per se restrictions.
A judge may not do through another something the judge is ethically prohibited from doing directly. Similarly, the parameters established in MCJC 7 regarding political activity and candidate fundraising would be nullified if the candidate could orchestrate through other individuals or groups what the candidate or the candidate's campaign committee could not ethically do directly. If the candidate or the campaign committee know that funds have been solicited or contributed under circumstances which would violate law or ethics requirements if done by the candidate committee, the funds should not be accepted. Any other result would be contrary to the administration of justice, bring the judiciary into disrepute, lower confidence in the legal system, and circumvent the protection that have been put in place for judicial elections.
"Independent Fund-Raising"
JI-7 and CI-509 authorized the acceptance of unsolicited campaign contributions from lawyers, in excess of the $100 solicitation limit imposed by MCJC 7B(2)(c). JI-2 allows a candidate's committee to accept unsolicited contributions from political action committees. There is no logical distinction between the acceptance of funds derived from the personal coffers of supporters and monies obtained by fund-raising efforts of persons or groups who support the candidate.
Judicial candidate committees may accept unsolicited funds collected through fund-raisers sponsored by interest groups, political parties or law firms, subject to the general restrictions imposed by MCJC 2A and B and MCJC 7B(1)(a). The amount of the contribution and identity of the contributor may significantly affect public confidence in the integrity and impartiality of the judiciary. To avoid the appearance of impropriety, funds raised by interest groups may be accepted only if the contribution is motivated by a desire to support the election of the most qualified candidate rather than to influence the candidate if elected.
Some independent fundraisers maintain and replenish pooled funds. Contributors do not know at the time of contribution who will receive the funds, but know generally that candidates favoring a particular interest will so benefit. The decision to contribute those funds to particular candidates is made at a point in time separate from the actual solicitation. Examples of pooled funds are labor union political action groups and organized political parties. The fundraising is performed on issues of labor or political party affiliation, and not in the context of a particular named candidate.
Other independent fundraisers are held only for the sake of particular candidates, the candidate's names appear in the solicitation material, and the contributors know before contributing who will receive the benefit of the contribution. Examples of ear-marked fundraising are events held by lawyers, candidate relatives, and church organizations. These categories are not mutually exclusive; a labor union or a political party may engage in earmarked fundraising. Ear-marked fundraising, even when conducted independently of the judicial campaign committee, should be done in conformance with the ethical principles which bind the candidate and the candidate committee. There is no reason for the candidate not to "know" about the fundraising effort, and in fact the candidate frequently is in attendance.
Fund-Raisers Benefiting Several Candidates
The inquiring candidate asks whether ethical restrictions are affected if the candidate is only one of several candidates benefitted by the independent fund-raiser. This contingency is not specifically addressed by MCJC and does not affect the rationale of MCJC 2A, 2B or MCJC 7B(1)(a). A judge may accept proceeds as one of several candidates benefiting from an independent fund-raiser, within the same parameters as would apply to the judge's acceptance of funds as the sole beneficiary of the event. However, if a candidate for political office also benefits from the fund-raiser, this factor may have a significant impact on the appearance of impropriety and impartiality.
Candidate's Attendance at Fund-Raiser
MCJC 7B(2) permits the judge's committee to solicit campaign funds and prohibits the judge from personally doing so. A candidate may obviously attend fundraising events sponsored by the candidate's campaign committee, MCJC 7(b)(2), is explicitly permitted by MCJC 7A(2)(1) to attend political gatherings (the purpose of the event apparently makes no difference), and may speak to political gatherings on the candidate's own behalf or on behalf of another judicial candidate pursuant to MCJC 7A(2)(b). A judge may therefore attend an independent fundraiser held on the candidate's behalf. If the fundraising solicitation did not comply with the ethics rules applicable to the candidate campaign committee, however, the candidate should not attend or give support to the event which circumvents the ethics rules for judicial campaigns.