Michigan GOP alleges Whitmer ad violates state law

Jonathan Oosting
The Detroit News
A new ad from Build a Better Michigan features Democrat for governor Gretchen Whitmer

Lansing — The Michigan Republican Party on Wednesday asked election officials to investigate whether a group running $1.8 million in television ads that feature Democrat Gretchen Whitmer violated state campaign finance laws.

Build a Better Michigan President Mark Burton called the complaint a “frivolous” political attack. But GOP arguments that the ads go beyond "issue advocacy" by identifying Whitmer as a candidate for governor may have merit, according to one non-partisan watchdog.

Michigan law, as reinforced by the Republican-led Legislature in 2013, allows groups to avoid state reporting requirements for ads that do not directly advocate for or against the election of a candidate.

The commercials from Build a Better Michigan, a political organization founded by Whitmer allies separate from her campaign, feature the East Lansing Democrat but do not directly tell viewers to vote for her.

Michigan Republican Party Chief of Staff Colleen Pero alleges the ads constitute express advocacy for Whitmer’s election because they identify her as a “candidate for governor” and outline her major campaign themes.

Build a Better Michigan is expected to disclose donors and spending to the federal government in coming weeks. But the group should already have reported independent spending to the state and violated the law by not doing so, according to the GOP complaint filed with the Bureau of Elections.

The complaint “potentially could be legitimate,” said Craig Mauger of the Michigan Campaign Finance Network, whose group tracks unreported issue ad spending.

 “If you’re running a 30-second ad that is so positive about a candidate and says all these great things, and then you mention this person is a candidate for office, I think anyone watching would think that the message of the ads is to vote for that person for that office,” Mauger said.

Still, Michigan laws are so “blurry” that it’s difficult to call anything a clear violation, he added. “That in and of itself says a lot about where we’re at.”

The dispute comes five years after Republican Gov. Rick Snyder signed a law that codified disclosure exemptions for issue ads. The Legislature approved the measure after GOP Secretary of State Ruth Johnson proposed a new rule that would have required reporting within 30 days of a primary or within 60 days of a general election.

The Michigan Campaign Finance Act does not require groups to disclose donors or ad spending to the state unless they clearly advocate for the election or defeat of a candidate using words like “vote for.” The law also identifies phrases like “Smith for governor” as a form of express advocacy.

In one Build a Better Michigan ad, Whitmer touts her role in raising the state’s minimum wage and expanding Medicaid health care eligibility as minority leader in the state Senate. “But there’s still more work to do, like invest in skills training and repeal the retirement tax,” Whitmer says.

Burton, a longtime Whitmer ally, said the group is fighting for policies that will help “hardworking Michiganders.” Whitmer is “uniquely qualified” to serve as a “spokesperson” in the issue ads and “talk about what it takes to get things done” because of the work in the Senate, he said.

“The attack on our ads is just politics," Burton added. “The truth is, issue ads have been a part of Michigan elections on both sides of the aisle for decades.”

Burton noted Attorney General Bill Schuette, a Republican also running for governor, appeared in a 2014 issue ad from a group called Michigan Advocacy Trust, which does not disclose donors. The ads prompted an IRS complaint that Schuette called “pathetic.”

But Pero claimed the new ads featuring Whitmer show poor judgment on her part and could constitute a criminal act by her “special interest friends.”

“The first act by any person elected as our state’s Governor is to swear to uphold Michigan law,” Pero said in a statement. “Gretchen Whitmer, an attorney, appears to have approved these illegal ads and coordinated with an outside corporate entity by appearing in them.”

The Whitmer campaign declined comment on the ads or the GOP complaint. 

The Democratic Governors Association ran ads ahead of the 2014 election that featured gubernatorial nominee Mark Schauer, a model Burton has said the Build a Better Michigan ad campaign follows.

Schauer touted his credentials and criticized Snyder in the commercials, but they did not identify Schauer as a candidate.

Build a Better Michigan was organized under Section 527 of the U.S. Internal Revenue Code. The group will be required to disclose donors and spending to the federal government.

“We have been and will continue to comply with all IRS and Michigan campaign finance laws, and I expect this frivolous complaint will be promptly dismissed,” Burton said.

But the ads could set a new precedent in Michigan that allows dark money groups to air similar commercials, Mauger said.

“It’s expected donors behind these ads will eventually be disclosed, but if (the state) allows 527s to do this, it could allow a non-disclosing entity to come in, film ads featuring an identified and then hide what they’re doing,” Mauger said.

The Michigan Bureau of Elections received the GOP complaint Wednesday and will decide whether to dismiss it or go forward with an investigation within five business days, said Secretary of State spokesman Fred Woodhams. "It’s premature (to) speculate about penalties at this point."

A group called the Michigan Jobs and Labor Foundation violated state campaign finance rules in 2014 when it  ran “issue ads” that briefly included campaign logos for Republican Sens. Ken Horn of Frankenmuth and Dale Zorn of Ida.

The group, which does not disclose donors, blamed the logo placement on a vendor error but agreed to pay a $17,696.60 fine as part of a conciliation deal with state.

Americans for Prosperity, a conservative group backed by billionaire brothers David and Charles Koch, recently announced its own $1.7 million ad campaign to attack Whitmer.

The group has so far reported $311,531.50 in independent television ad expenditures to the state, in addition to more than $162,000 it has spent on mailers criticizing Whitmer.

Whitmer is competing for the Democratic gubernatorial nomination with Ann Arbor businessman Shri Thanedar and former Detroit Health Department Director Abdul El-Sayed.