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Michigan Democrats Can Use Money Raised to Stop Whitmer’s Recall

Sept. 12, 2022, 2:57 PM

The Michigan Democratic Party didn’t gain an unfair advantage over its Republican counterpart when it accepted $3.5 million in unused funds from the committee formed to fight the various recall proposals filed against Gov. Gretchen Whitmer (D), the Sixth Circuit said.

The Michigan Republican Party and its chairman sued the Michigan secretary of state, alleging that application of the state’s recall exception for campaign contributions violated the First and 14th Amendments. Whitmer intervened in the suit.

Michigan generally caps individual donations during an election cycle to $7,150 for any one candidate committee. The candidate’s political party can contribute 20 times that amount.

An office holder facing a recall, like the group proposing the recall, may seek unlimited contributions to face the challenge. Any unused portion of that money must be returned, given to a political party, or donated to charity.

Because of her Covid-related policies, Whitmer faced 27 recall petitions and solicited donations to fight them. When the last petition was dismissed, Whitmer refunded $250,000 to a donor and gave the rest to the MDP.

The MRP sought a restraining order to stop the MDP from using the $3.5 million to promote Whitmer and candidates she supported in 2022.

A contribution scheme that allows a candidate to receive contributions on more favorable terms than her opponent may give rise to a cognizable injury, the US Court of Appeals for the Sixth Circuit said Sept. 9.

The first question here was whether the recall allowed rivals to support their preferred recall outcome on equal terms, the court said. Although it declined to do so, the MRP could have contributed unlimited funds to any political committee supporting Whitmer’s recall, so there was no asymmetry in fundraising, it said.

Nor were the state’s contribution limits violated with respect to the general election, the opinion by Judge Helene N. White said. Political parties may collect unlimited funds at any time, and the MDP didn’t need the recall exception to do so, White said.

Under Michigan law, those who donated to help Whitmer stave off a recall, effectively donated to the MDP once the recall cycle was complete, the court said. At the same time, Republican donors could have directly donated unlimited funds to the MRP, it said.

Judge John K. Bush joined the opinion.

Concurring in the judgment, Judge Chad A. Readler said that the result could have been different if the MRP alleged that under Michigan’s recall laws, Whitmer and the MDP stood in far better position than it did for fundraising purposes.

Holtzman Vogel Baran Torchinsky & Josefiak PLLC represented the MRP. The US Attorney’s Office represented the secretary of state. Clark Hill PLC represented Whitmer.

The case is Weiser v. Benson, 2022 BL 317787, 6th Cir., No. 22-1014, 9/9/22.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com