Whitmer's campaign might have to return excess contributions soon, filing says

Craig Mauger
The Detroit News

Lansing — Gov. Gretchen Whitmer's reelection campaign could have to return or donate $3.4 million in excess contributions it collected outside the state's normal donor limits as soon as January, according to a new court filing on behalf of Secretary of State Jocelyn Benson.

The filing came Wednesday in response to the Michigan Republican Party's lawsuit in federal court, challenging the Democratic governor's use of a decades-old state policy on recalls to garner large contributions, above the normal $7,150 limit on individual donors, to bolster her reelection war chest.

Lawyers for Attorney General Dana Nessel's office working on behalf Benson countered that the recall policy wasn't unfair to GOP candidates for governor because if a recall isn't called, the excess funds "must be returned" or donated to a local charity or party.

Gov. Gretchen Whitmer speaks during the Detroit Branch NAACP’s 66th Annual Fight For Freedom Fund Dinner at TCF Center in Detroit on Oct. 3, 2021.

If no additional recall petitions are filed by Jan. 1, any possible recall effort will necessarily be considered "concluded," the lawyers argued on behalf of Benson. That's because under state law, no recalls can be filed against a governor in their last year of a term in office.

"The governor would be required to disgorge any contributions received in excess of the MCFA (Michigan Campaign Finance Act) limits at that time — months before even the April 19, 2022 deadline for Republican gubernatorial candidates to file their nominating petitions," the filing said.

An important question will be what Whitmer's campaign eventually does with the excess funds, said Simon Schuster, executive director of the nonprofit Michigan Campaign Finance Network, which tracks money in state politics. If they're donated to a political organization, they could still be used to benefit the governor's reelection, Schuster noted.

Whitmer reported raising $8.65 million in 2021 as of July 20, a record amount for a Michigan candidate for governor at this point in an election cycle. Of the total, about $3.4 million came through contributions above normal limits.

The new court filing "confirms the campaign’s fundraising has been in accordance with the law," said Maeve Coyle, communications director for Whitmer's campaign.

"The MI GOP continues to attack Gov. Whitmer in every way they can think of, including recall efforts and frivolous lawsuits," Coyle said. "The campaign will continue to fight back attempts to attack the governor while following the guidelines set by precedent."

Normally, under Michigan law, a candidate for governor would be able to accept $7,150 from an individual for the entirety of an election cycle.

But Whitmer has faced multiple recall efforts — although they have not been serious or gained momentum. Under Secretary of State office decisions from the 1980s, candidates facing recalls have traditionally not been subject to the donor limits in fighting the recalls because those seeking to recall them don't face limits on contributions.

Whitmer has received at least $250,000 from five individual donors, including $257,150 from attorney Mark Bernstein of the Sam Bernstein Law Firm and $250,000 from Illinois Gov. J.B. Pritzker.

In its lawsuit,the Michigan Republican Party contended that the current recall policy violated the equal protection rights of GOP candidates running for governor because if they raise excess contributions they could face criminal prosecution.

As of July, none of the Republican candidates for governor had reported raising more than $625,000 for their campaigns while Whitmer reported having $10 million in cash available as of July 20.

"Gretchen Whitmer has illegally raised funds in excess of Michigan’s contribution limit by claiming a recall exception for a recall that doesn’t exist," said Gustavo Portela, spokesman for the Michigan Republican Party. "We’ll fight in court to ensure that campaign finance rules continue to be applied fairly across the board for all candidates running for governor because no one is above the law."

Wednesday's court filing featured Nessel's office and Benson contending that Republicans had gotten their arguments wrong in challenging the governor's fundraising strategy.

"There is also no as-applied advantage for Gov. Whitmer against any potential

Republican opponents for the November 2022 election," the filing said.

Michigan's next campaign finance deadline for the gubernatorial candidates is Oct. 25. That will be the first time former Detroit Police Chief James Craig and Metro Detroit businessman Kevin Rinke, two GOP contenders, are expected to file fundraising reports.