Fast-talking Secretary of State Jocelyn Benson did her best to ‘snow’ an “Off the Record” panel of journalists on Michigan Public Television last week-end, but this particular episode (#4,834 on Tim Skubick’s record-setting list) should be entitled “Home of the Whopper.”
We won’t say “Liar, liar, pants on fire!” Let’s just say Benson put a serious dent in the truth while answering the assembled scribes.
Benson made two startling pronouncements. First, she said that, despite a recommendation of her own Elections Bureau to the contrary, she determined for the first time ever that the graphic “Gretchen Whitmer candidate for governor” embedded in a TV ad last summer was an example of “express advocacy” and therefore illegal as an issue ad.
Benson implied that her brave, bold new interpretation of the law probably caught the ad’s sponsor, Build a Better Michigan (BBM), by surprise. That is why Benson says she decided to “set a precedent” by imposing a fine of only $37,500 against BBM for making illegal expenditures totaling over $2.4 million. The levy was just 2% of the illegal expenditure, one of the lightest campaign fines in Michigan history for the offense committed. But it “sends a message,” Benson bragged.
Secretary Benson was a career academic whose specialty supposedly included campaign finance law. Benson surely is familiar with footnote 52 in Buckley v Valeo, the landmark 1976 U.S. Supreme Court campaign finance decision, which lists the so-called magic words “express advocacy.” Footnote 52 was codified into the Michigan Campaign Finance Law in 2013 in MCL 169.206 (2)(j). Secretary Benson conveniently omits those facts. She also omits the fact that in 2014-2015 the Department of State levied a $17,000 fine against the Michigan Jobs and Labor Foundation (MJLF), which amounted to 100% of the illegal expenditure made by MJLF for ads that, although intended to be issue ads, were mistakenly broadcast using words of express advocacy (Horn for State Senate and Zorn for State Senate), making them illegal. Secretary Benson is now trying to rewrite history that the BBM complaint somehow required a new interpretation of the Michigan Campaign Finance Act just because BBM used the graphic “Gretchen Whitmer candidate for governor.”
The second startling pronouncement Secretary Benson made during the Off the Record interview was that the Elections Bureau staff first recommended that the complaint be dismissed. Was that recommendation to her or to then-Secretary Ruth Johnson before the latter left office at the end of last year? If so, how did the current Elections Bureau staff reconcile the handling of the MJLF complaint* in 2014-2015, when Chris Thomas was Director of Elections, with its recent recommendation to dismiss and later to reach such a laughably small fine in the settlement agreement with BBM?
Who in the Elections Bureau recommended dismissal of the complaint? Buckley v Valeo is, after all, a 43-year old case. It’s a case that should be familiar to all campaign finance attorneys.
Should Benson return to teaching to give her Elections Bureau staff a remedial course? No, wait! Not her. Rather, somebody who knows the law and will tell the truth about it, the whole truth, and nothing but the truth — and enforce it.
* To read the Conciliation Agreement with MJLF signed by Chris Thomas in early 2016 on behalf of Secretary of State Ruth Johnson, go to the second page of the link below. The correct citation of the “magic words” codification is MCL 169.206 (2)(j).