Is there a Mini-Pletz lawsuit in the works?
Last week, Michigan Attorney General Dana Nessel finally pulled the trigger on an important element of political ethics reform that the Legislature had done its best to evade in 2023.
Nessel issued an opinion holding that public officials must report the date and size of a gift — and the name of the lobbyist or lobbyist agent providing the gift — on the public official’s personal financial disclosure filing, regardless of whether the gift was reported by the lobbyist or lobbyist agent on their required lobby disclosure forms.
This comes after voters overwhelmingly (66.45%) passed Proposal 1 in 2022 and subsequent action by the Legislature to enact a personal financial disclose law for public officials that said gifts had to be reported by a public official ONLY if the gift was also reported by the lobbyist or lobbyist agent on their required lobby disclosure reports. Nessel opined that the law conflicted with the Constitutional amendment.
This means the public, for the first time in Michigan history, will have the opportunity to see who has been providing lawmakers with gifts.
The A.G. opinion did not address whether gifts over $76 in value, normally a violation of the lobby law, can have that violation cured through reimbursement by the public official back to the lobbyist for any value more than the $76 gift limit. That question may be answered by mid-August in a pending declaratory ruling or interpretive statement requested by retired Lansing attorney Bob LaBrant.
An A.G. Opinion is binding on Secretary of State Jocelyn Benson, who requested the opinion. An A.G. opinion has the force of law unless it is overturned in court. As everybody knows, the multi-client lobbying community and their clients often give lawmakers gifts such as tickets to professional and college football, hockey, and basketball games, concerts, theater performances, and rounds of golf. Nessel’s opinion would put a crimp in that. So, should we expect the lobbying corps to finance a legal challenge to the A.G. opinion? It has happened before. Here is that story:
Michigan’s current lobby law is a product of the Watergate Scandal (1972-1974). That scandal resulted in the resignation of President Richard Nixon and the accession to the presidency of Gerald Ford, Michigan’s own. The scandal caused changes to the federal campaign finance law. Practically every state legislature across the nation revised old corrupt practices laws that had been on the books since the Progressive Era enacted in the early 20th century. Michigan had a 1947 Lobby Law passed after the assassination of state Senator Warren Hooper, who was scheduled to testify about corrupt lobbying in Lansing. The law was toothless. Lobbyists did get, after registering with the Secretary of State, a registration card for their wallets.
Michigan joined the post-Watergate reform parade. In 1975, the Legislature enacted a comprehensive Political Reform Act dealing with campaign finance, lobbying, and governmental ethics. The Legislature took the extraordinary step of requesting that the Michigan Supreme Court issue an advisory opinion on the Political Reform Act’s constitutionality before the Act took effect. The Supreme Court has that power under the Michigan Constitution, but rarely exercises it. The Supreme Court ruled that the Political Reform Act was unconstitutional because, by combining campaign finance with lobbying and ethics into one bill, the new law violated the single subject/single purpose clause of the Michigan Constitution. The high bench ruled that, instead, the Legislature could enact three separate laws. Consequently, the Michigan Campaign Finance Act was passed in 1976. The Michigan Lobby Law was then passed on October 19, 1978. The lobby law was not to take effect until six months after administrative rules were promulgated. The Act was scheduled to take effect on June 17, 1981.
But a legal challenge to the new Lobby Law was quickly organized by two lobbying legends — Francis (Jerry) Coomes of Public Affairs Associates and his client, Michael Franck, who was executive director of the State Bar of Michigan.
Jerry Coomes came from the Michigan Catholic Conference before he and Emil Lockwood, the former Republican Senate Majority Leader, formed Public Affairs Associates (1971).
In 1978, there were three multi-client lobbying firms that continue today: Michigan Legislative Consultants, founded in 1965 by Tom Cleary, a former deputy State Treasurer; Karoub Associates, founded in 1968 by former state Representative Jimmy Karoub (D-Highland Park); and Lockwood’s and Coomes’s Public Affairs Associates.
Coomes and Franck brought together a coalition to challenge the lobby law (nobody has ever bothered trying to resurrect the “Governmental Ethics” piece of the puzzle). The Michigan Chamber of Commerce created for the lobbyist-protection coalition an entity called The First Amendment Committee to Protect the Right to Lobby (known mainly as the “First Amendment Committee”) and kept its books and records.
Two decisions were soon made:
A legal “Dream Team” approach was taken. Instead of hiring just one firm, the First Amendment Committee hired three lawyers, each from different firms. They were:
— Jim Robinson, former U.S. Attorney for the Eastern District of Michigan, was from the mega-firm Honigman, Miller, Schwartz & Cohn. Robinson was later Dean of the Wayne State University Law School and head of the Criminal Division of the U.S. Department of Justice under President Bill Clinton.
— John Pirich, who as an Assistant Attorney General (AAG) under Frank Kelley had argued that the 1975 Political Reform Act was unconstitutional. Another team of AAGs argued for its constitutionality. Pirich after leaving the A.G.’s office had been a law partner of Tom Downs, a 1961-62 Con-Con Vice President and election recount lawyer extraordinaire, before joining Miller Canfield as a partner. Pirich later became a partner at Honigman. Attorneys Brian A. Kaser and William J. Perrone also deserve some props for their roles in the Committee’s mission.
— Attorney Richard McLellan was the third member of the Dream Team. He and Rex Schlaybaugh and Bill Whitbeck served in the Milliken administration before establishing the Lansing law firm of McLellan, Schlaybaugh & Whitbeck. Their firm later merged with the legal goliath Dykema Gossett. McLellan in 1977 quickly became the state’s leading expert on the Michigan Campaign Finance Act and was preparing to be the same with the Michigan Lobby Law. McLellan later argued before the U.S. Supreme Court, in the case of Austin v Michigan Chamber of Commerce, that Michigan’s prohibition in its campaign finance law on corporate independent expenditures violated the First Amendment. That case reached the U.S. Supreme Court twice. It was necessary for the Supreme Court to reverse the Austin precedent before rendering its now-famous Citizens United v Federal Election Commission decision.
The First Amendment Committee understood the importance of public relations. The Committee broke new ground, hiring the public relations firm of Publicom. One of this firm’s co-founders was Rick Cole, who had the First Amendment Committee account. Cole later served as Governor Jim Blanchard’s press secretary and later his Chief of Staff. Cole went on to become a senior vice president at Blue Cross/Blue Shield of Michigan and later an officer at the Detroit Medical Center before moving to academia at Michigan State University as a professor of communications.
Rick Cole is credited by many with the decision not to seek out and retain a Godzilla-like high-profile company like General Motors, Ford, Chrysler, Detroit Edison, or Consumers Energy to be the lead plaintiff. Instead, Cole advised the Committee to have Ms. Frances Pletz, the benign, low profile executive director of the Michigan Library Association, be the lead plaintiff. Therefore, the case became known known as Pletz, et al v Secretary of State.
The lawsuit began in Ingham County Circuit Court. The case was drawn by Judge Robert Holmes Bell. Bell had been an assistant county prosecutor in Ingham County before being elected as a district court judge. Later, he was elected to the circuit court. After the trial, Judge Bell, in September 1981, declared the 1978 lobby law unconstitutional in its entirety. At this point, the Committee and its “Dream Team” were clear winners, and Fran Pletz was a heroine to the coalition.
Judge Bell was later nominated by President Ronald Reagan to a federal district judgeship in the Western District of Michigan. Judge Bell may be the only federal judge in Michigan, a state that abolished the death penalty in the 1840s, to impose the death penalty for a murder committed on federal land in Michigan (although the convicted felon was not executed).
But Bell’s verdict was appealed by the state to the Michigan Court of Appeals. Two judges on the three-judge panel were Governor Milliken appointees to the state Court of Appeals. They were Glenn Allen, a former Mayor of Kalamazoo and an ex-Con-Con delegate who became budget director for Governor George Romney and legal counsel to Governor Milliken; and William Beasley, a former Ferndale city attorney and Oakland County Circuit Court judge. The third judge was J.J. White, who was a circuit court judge on assignment to the Court of Appeals to assist in the backlog of cases pending before that panel.
Judge Beasley wrote the July 6, 1983, opinion for a unanimous Court overturning Bell’s decision and upholding most of the Act, but not all (another coalition win!) The Michigan Supreme Court denied leave to appeal on September 21, 1983.
Still, all this had taken some five years to resolve, and even though it cost the coalition hundreds of thousands of dollars to litigate, the courts had given lobbyists a few victories along the way and precious time to prepare themselves for life in the capital city under more stringent regulation.
With denial of leave by the high bench , the First Amendment Committee closed out its activities by holding a Lobby Law School, with its lawyers as the faculty, to educate the lobbying community about the intricacies of the new law, its rules and the Court’s decision.
Could something like this happen again? Would a new “coalition” be willing to pay for it?
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HAPPY FATHER’S DAY, BILL!
Nice article and history lesson. I don’t disagree with Nessel’s opinion on this, but I am so sure about the ability of her office to defend her decision. Their past work does not instill a great deal of confidence. But the lawsuits and the legal fights will be interesting and should provide much fodder for future TBRs!.
OOPS. The second sentence, second phrase should read…but I am NOT so sure about the ability of her office to defend her decision,.
Mea Culpa.
Tim/
Can’t argue history, only the impact of it. Had the legislature or the courts taken the position of “a dollar spent, a dollar reported” none of this would be in question. Frankly, it would be much simpler for the lobby community and much better for the public.
Which is why we will probably never see it. I suspect that many of the folks who voted for Proposal 1 in the last election thought that was what they were getting. What they got was a farce and easing of term limits.
Hey Bill! Great Job . In the Wake of U.S.Supremes , The Public is very Sensitive
To all this Hocus Pokus ! But one thing is Clear
As Day That is,The Public has the absolute right to Know who is behind these Perks !
I Once talked to a Worker’s Compensation attorney who represents plaintiff in Texas regarding a Texas comp injury. He informed me that the lobbyist were on the floor of the Texas house giving immediate checks of $5000 as the Individual Texas legislature Voted for an anti-victim, workers comp. Statute ;which basically leaves their injured workers naked in the street.
Fortunately Michigan is getting Better and Better , With this AG’s Opinion .
Hey Bill, a great historical panorama! So let me see if I’m tracking the ramifications correctly,
This sure seems like Censor, er AG, Nessel is setting the initial conditions for a boatload of job security,
1) Nessel appears to be either looking to private law past political office, or, setting up special lawyer friends in future terms. Quoting Corrector Sullivan, above, “. . . the lawsuits and the legal fights will be interesting and should provide much fodder for future TBRs!.“ Now paraphrasing Sullivan, the voters are not getting what they thought they were getting when voting for Proposal 1. Hence, legal challenges.
2) If she gets 100% of her way, which I doubt she will, lobbyists had better come clean else they’ll be caught with their pants down; and no place to stuff their $$ of intrigue. Hence, legal challenges.
3) If lobbying decreases, then the only party in town, short of giving real mini cash contribs, are 501 C4’s which are already being looked at 4 ways till Sunday. But since we have no checks nor balances on political ethics, PACs appear to still be the best way to stuff massive amounts of $$ into political pockets. More legal challenges.
4) Then there is the 2 tiers of the social class. The curiae vs the plebes if you will. Heaven help the MI GOP.
The whole broader theme here is the purchasing of political influence through modes that include lobbying, campaign committee contributions and the establishment of political action committees to advance specific agendas – often at the expense of the public interest.
The dueling populisms in the Democratic and Republican parties seek to expose and eradicate such dangers to the public interest. This was one of the key themes of the Tea Party movement commencing in 2010 and its evolution to Trumpism in 2016. In 2018, AOC and the Squad attacked moneyed interests has ininmical to the public interest and urged the public to oppose big money influence in Congress.
Kristina Karamo struck a chord in grassroots Republicans in underscoring the “allegedly” pernicious influence of big donors in the GOP – others thought she was all wet since these donors are needed to keep the GOP competitive.
AIPAC, the American Petroleum Institute, and the National Association of Manufacturers are examples of influential heavyweights who have vast financial resources and are instrumental in influencing public policy – but are they necessarily inimical to the public interest? – the jury is out.