Federal judge slams Michigan GOP suit against Whitmer fundraising

Craig Mauger
The Detroit News

Grand Rapids — Federal Judge Janet Neff, a nominee of former President George W. Bush, repeatedly criticized on Wednesday the Michigan Republican Party's effort to challenge Democratic Gov. Gretchen Whitmer's reelection fundraising strategy.

At the end of an hour-long hearing in federal court in Grand Rapids, Neff rejected a GOP motion for an emergency restraining order to prevent the governor's campaign from distributing millions of dollars in excess contributions she raised through a so-called recall exception — an approach Republicans have argued should be illegal.

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.

The judge said she had "questions" about whether Michigan Republican Party Chairman Ron Weiser had legal standing to bring the lawsuit in the first place. And she said the GOP might be feeling "remorse" the party didn't think of the idea earlier when one of its members held the governor's office.

"That is what politics is really all about is trying to find the edge," Neff said at one point.

On Nov. 18, the Michigan Republican Party asked Neff to issue a temporary restraining order blocking Whitmer's campaign from transferring millions of dollars in campaign funds she raised above the state's contribution limits.

The "emergency" filing came days after Whitmer's campaign attorney, Chris Trebilcock, revealed plans to distribute the money because a Michigan Supreme Court order had officially ended many of the unlikely recall efforts against the governor. The pending recalls were what Whitmer's campaign said had allowed it to raise money above the normal restrictions.

Decisions in the 1980s from then-Michigan Secretary of State Richard Austin, a Democrat, permitted an officeholder facing an active recall to raise unlimited amounts from donors to match the fundraising ability of recall committees. Current Secretary of State's Jocelyn Benson's office has said the money raised to fight a recall "must be returned or donated if the recall does not become active."

The money could go to the Michigan Democratic Party or another political group, but it's unclear what the governor's plans are currently.

Whitmer has raised about $4 million from donors who individually gave amounts above the current $7,150 cap. A handful of donors have given at least $250,000 each.

The Michigan GOP has argued the strategy was unconstitutional and unfair to the Republican candidates for governor who face strict caps on contributions from donors. The GOP wanted the court to stop Whitmer's campaign from distributing the excess money while a fight over the strategy's constitutionality played out.

But Neff countered Wednesday that the alleged injury to Republicans was only "theoretical" and not grounds for immediate action.

"We don't have a gubernatorial contest yet, and we won't until some time in the new year," the judge said.

The governor's position is different than the GOP candidates for governor because she holds office and faces a recall, and her use of the recall exception appeared to follow state policy, Neff added.

If there were lawsuits every time someone raised more money than someone else in a political campaign, "we'd be here all of the time," the judge said.

"God knows we don't want that," Neff said. 

Attorney Jason Torchinsky, who represented the Michigan GOP in court on Wednesday, said Whitmer's fundraising efforts violated Republicans' rights to equal protection and freedom of speech.

Whitmer could accept large contributions while Weiser, a wealthy businessman and prolific donor, was legally prevented from giving similar ones to GOP candidates, he said.

But Neff repeatedly interrupted Torchinsky during his arguments and said Whitmer had the ability to raise unlimited funds because recalls were launched against her. Those recall committees could raise unlimited amounts so the policy was "equally applicable," the judge said.

The recall fundraising policy "really has nothing to do with the gubernatorial race," Neff said at one point.

She also labeled the Republican arguments "difficult to follow."

Trebilcock noted that Weiser has previously given large amounts of cash to the Michigan GOP.

"It's laughable" that his rights have been infringed, Trebilcock said.

"This case should just be outright dismissed," he said.

Neff didn't dismiss the case on Wednesday but she asked Whitmer's campaign, Benson's office and the Michigan Republican Party to submit briefs by Dec. 15 on whether Weiser had legal standing to bring the lawsuit.

A hearing on that subject is scheduled for January.