CINCINNATI (CN) — A war chest of over $3.7 million in political donations to Governor Gretchen Whitmer – over 95% of which was later given to the Michigan Democratic Party – was amassed in violation of state campaign finance laws, the Michigan GOP argued Thursday before a federal appeals court panel.
The exorbitant fundraising sum, 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 frustrated Michiganders throughout the Covid-19 pandemic.
Only one of the recall efforts required the creation of a recall committee, but Whitmer nevertheless used the opportunity to raise a significant amount of campaign capital, although nearly all of it was eventually donated to the Michigan arm of the Democratic Party.
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 has no contribution limit.
Ronald Weiser, a self-described "concerned supporter" of the Republican Party, filed suit alongside the Michigan GOP against Secretary of State Jocelyn Benson last year, claiming the fundraising efforts violated the Michigan Campaign Finance Act as well as Republicans' First Amendment rights.
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.
"Their alleged injury also sounds as a generalized grievance," she said. "Plaintiffs appear to complain that the Michigan government should make the recall individual contribution limits more in harmony with the contribution limits for elections for a public office.
"This grievance is clearly not a grievance particularized to plaintiffs but a generalized grievance. A generalized grievance is insufficient to confer standing."
In its brief to the Sixth Circuit, 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," it said.
In her brief, 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," she said, "office holders do not get to keep or use that money for their re-election."
Attorney Edward Wenger argued Thursday on behalf of the Michigan Republican Party 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," U.S. Circuit Judge Helene White told Wenger.
White, a George W. Bush appointee, pointed out that once the recall efforts were concluded, Whitmer was required to disgorge all donations in excess of the individual contribution limit to the Democratic Party.
"At all times Whitmer is subject to the individual cap and the party cap," the judge said.
"As a real-world matter," Wenger responded, "the money she had in excess of her caps is being used to fund her reelection efforts."
U.S. Circuit Judge Chad Readler, a Donald Trump appointee, asked the GOP's attorney about the relief his clients are seeking in addition to the disgorgement of the funds.
Wenger said the ultimate goal is to rescind the recall exception in its entirety and have it stricken from Michigan law as unconstitutional.
Assistant Michigan Attorney General Erik Grill argued on behalf of Benson and told the panel his opposing counsel "basically wants an entirely new statutory scheme."
Grill and Readler repeatedly went back and forth about whether Whitmer and other recall candidates gain an advantage through the fundraising exception, with the attorney pointing out the Michigan Democratic Party is the only entity with access to the excess funds.
Readler was insistent the donations were de facto campaign contributions, and continued the debate with attorney Chris Trebilcock, who argued on behalf of the Whitmer for Governor Committee.
"The problem I have is the extra money effectively going to her reelection campaign," Readler said.
Trebilcock pushed back and told Readler "we're guessing" as to where the money will go, and reiterated the generalized grievances brought by Republicans are insufficient to confer standing.
In his rebuttal, Wenger said the Democrats' access to "campaign-connected funds" gives them a distinct and unlawful advantage.
"We are asking for a return to the way the Michigan Legislature drafted its campaign finance caps," he told the court.
U.S. Circuit Judge John Bush, another Trump appointee, participated remotely and rounded out the panel.
No timetable has been set for the court's decision.
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