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Panel rejects suit accusing Michigan governor of using illegal campaign funds

Though the Sixth Circuit sided with the Democratic governor, one judge suggested the Michigan Republican Party could find some traction with a refined claim.

CINCINNATI (CN) — A federal appeals court on Friday dismissed a lawsuit that claimed the Michigan secretary of state allowed Democratic donors to make excessive contributions to the party with leftover funds raised to defend Governor Gretchen Whitmer against more than two dozen Republican recall initiatives.

The Sixth Circuit's ruling states that Ronald Weiser, a self-described "concerned supporter" of the Republican Party, and the Michigan GOP failed to plausibly demonstrate that a “real or direct harm has been sustained in any way.”

The lawsuit was originally filed against Secretary of State Jocelyn Benson last year and claimed the fundraising violated the Michigan Campaign Finance Act as well as Republicans' First Amendment rights. The complaint said that Whitmer could unfairly use the recall-related funds as part of her reelection campaign in the fall.

Senior U.S. Circuit Judge Helene White, a George W. Bush appointee, wrote that the “plaintiffs failed to provide factual support for the claim…and do not develop it on appeal.”

“The [Michigan] Bureau [of Elections] found no evidence that Whitmer’s committee spent recall funds on campaign advertising, and the recall exception explicitly prohibits officer holders from using recall funds to promote general election efforts," she wrote. "Thus, any harm related to this complaint is, at best, highly speculative."

Weiser and the state Republican Party argued that the recall funds disbursed to the Michigan Democratic Party gave the governor an unfair spending advantage, but White was not persuaded.

“Whitmer’s committee was not allowed to retain any portion of the recall contribution unless a doner expressly stated in writing she could keep up to $7,150 for her next election. This is the same general-election limit that applies to any contribution Weisner may choose to make to his preferred gubernatorial candidate, so there is no asymmetry in this regard,” she wrote.

White was joined on the panel by U.S. Circuit Judges Chad Readler and John K. Bush, both appointed by Donald Trump.

Readler wrote a separate opinion concurring in the judgment while also warning the case could have gone differently if approached from a “different angle.”

“As the facts of this case reveal, the recall exception equipped Governor Whitmer and the Michigan Democratic Party with one-sided fundraising advantages to the tune of $3.5 million. And those advantages are disadvantages to other political parties, particularly the Michigan Republican Party as it attempts to elect its own candidates,” he surmised.

The $3.5 million war chest, the largest for any Michigan gubernatorial candidate in a nonelection year, was the result of large donations by various wealthy donors made in response to more than 27 recall efforts initiated by Michiganders frustrated with Whitmer-issued restrictions during the Covid-19 pandemic.

While individual donors are limited to contributions of $6,800 during a normal election cycle under Michigan law, there are no limits during a recall because the committee formed following a recall effort has no contribution limit.

Senior U.S. District Judge Janet Neff, a George W. Bush appointee, allowed Whitmer to intervene in the case, and ultimately decided to dismiss all claims for lack of standing in January.

Neff found Republicans failed to state a concrete injury because their complaint stems from uneven contributions made during the recall efforts rather than a violation of state law.

"This grievance is clearly not a grievance particularized to plaintiffs but a generalized grievance. A generalized grievance is insufficient to confer standing,” she wrote.

In their appeal to the Sixth Circuit, Weiser and the Michigan Republican Party disputed Neff's conclusion and argued it had no interest in contributing to a doomed recall effort that, if successful, would merely result in the promotion of Whitmer's lieutenant governor to the state's highest office.

Instead, the party contended, Whitmer used the opportunity to raise money for her reelection campaign under the guise of preparing to fend off the recall.

"Every dollar that was raised by Governor Whitmer, superficially to fight off a recall effort, helped show undecided Michigan voters that others have faith in the job she is doing, because that is what she used the raised funds for. ... This is not a hypothetical or abstract risk," the party's brief states.

Benson told the Cincinnati-based appeals court the case was mooted when Whitmer donated nearly all of the recall contributions to her political party after all recall efforts were stopped, and also flatly rejected the GOP's claim about the governor's fundraising efforts.

"Simply put," the secretary of state said, "office holders do not get to keep or use that money for their re-election."

Attorney Edward Wenger argued in June on behalf of the Republicans and emphasized that while his clients could donate unlimited funds during recall efforts, none of that money went to a specific candidate.

"I have trouble understanding where the inequality is," Judge White told Wenger at the time. "At all times Whitmer is subject to the individual cap and the party cap."

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