Not so fast: judge issues injunction on Michigan PA 269 ‘gag order’ campaign finance bill

NOTE: Read the full 10-page injunction document at the end of this story


BY BENJAMIN J. GOHS, NEWS EDITOR

Supporters say Michigan’s new campaign finance law ends electioneering and tax-funding of ballot advertising; opponents say it prevents educating the public on millages and elections.

Last week, a federal court issued an injunction ordering the State of Michigan to stop enforcing PA 269 until it could be determined whether the new law is constitutional with regard to its affect on free speech.

 

“The court finds that Plaintiffs have demonstrated a strong likelihood of success on the merits of their claim that … (a portion of PA 269) is unconstitutionally vague and thus void.(1) As a result, the other preliminary injunction factors also weigh in Plaintiff’s favor,” wrote U.S. District Judge John Corbett O’Meara in his Feb. 5 order for injunction. “The infringement of constitutional rights inherently causes irreparable injury. The balance of harms favors plaintiffs, as neither the state nor third parties would be harmed if the state is enjoined from enforcing §57(3). The provision of the statute that prohibits the use of public funds to advocate for ballot measures remains in effect. The public interest, which favors the upholding of constitutional rights, also favors an injunction.”

NOTE: 1 Therefore, it is not necessary for the court to consider Plaintiffs’ First Amendment claim at this time.

The Boyne City Commission recently passed a resolution demanding that Public Act 269—which has been dubbed a “gag order” by some—be immediately repealed.

“There’s been a lot of discussion about the legislature’s recent action to limit discussion by public bodies with regards to upcoming ballot language that they might have going to the voters of the public,” Boyne City Manager Michael Cain told Boyne City commissioners at their Tuesday Jan. 26 regular meeting.

“[I]nstead of encouraging full and open discussions on the merits of an issue … the bodies that might have some of the most knowledge with regards to why they’re making these requests are not able to do anything within 60 days of an election,” he said.

Supporters of the Law
Not everyone thinks the new law is a bad thing.

Both Michigan Sen. Wayne Schmidt (R-Traverse City) and Rep. Triston Cole (R-Mancelona) voted in favor of SB 571, which is now PA 269.

And, in a Jan. 27 opinion piece by Mackinac Center for Public Policy analyst Jarrett Skorup (www.mackinac.org) entitled “Myth-busting the Michigan ‘gag order’ law,” he states the new law is an effort to deal with electioneering, which is identified as taking part actively and energetically in the activities of an election campaign.

“In the past, these entities have used public money to advocate for higher taxes,” Skorup wrote. “Here is the exact language of the controversial part of the bill: ‘Except for an election official in the performance of his or her duties under the Michigan election law … a public body, or a person acting for a public body, shall not, during the period 60 days before an election in which a local ballot question appears on a ballot, use public funds or resources for a communication by means of radio, television, mass mailing, or prerecorded telephone message if that communication references a local ballot question and is targeted to the relevant electorate where the local ballot question appears on the ballot.’”

Why Repeal?
Cain suggested the Boyne City Commission adopt a resolution supporting the Michigan Municipal League’s fight to repeal Public Act 269.
“This is not asking that the full resources of the city or have unlimited ability to spend money with regards to it—those restrictions still are in place,” Cain said. “(It’s) just if people are asking questions with regards to things that we can in good conscience and legally answer the questions that are out there and make sure people know there is an election coming up.”

Boyne City Commissioner Ron Grunch asked Cain why he thought this law may have been introduced.

“There may have been some communities that maybe took this too far,” Cain said of municipalities using taxpayer resources to advertise ballot initiatives. “But, unfortunately, like many acts out of Lansing or Washington … sometimes the cure for a particular situation or a specific situation is applied generally to everybody out there and it creates a bigger problem than the one it was trying to solve.”

Affect On Schools?
Some Boyne City Public Schools officials have also expressed concern about the new law.

“We have been using our school messenger to remind parents, whoever’s on our list, that there is an election,” said former Boyne City Public Schools Superintendent Peter Moss during the January Boyne City Public Schools Board of Education meeting.

Whether the school can continue to use its pre-recorded telephone messaging system—generally reserved for alerting parents of emergencies—to continue reminding them just before and the day of school elections, is in question.

“We’re not sure that’s allowed anymore,” he said, adding that it does not appear to be legal under the new legislation.

Mass mailing is also limited to under 500 pieces of mail sent to homes in a 30-day period.

Boyne City Public Schools Board of Education Trustee Zareena Koch suggested putting a sticker on each student—as she has seen in other school districts—reminding their parents to vote.

Moss said the law would have to be studied further to determine what will be allowable in the future.

Overstepping their Bounds?
Skorup contends that local governmental officials sometimes go far beyond merely educating the public on ballot measures.

“Based on their main arguments, the opponents of the new law don’t seem to grasp the problem,” Skorup wrote. “Robert Showers, a county commissioner and board member of the Michigan Association of Counties, wrote that it ‘silences me and my six colleagues on the Clinton County Board of Commissioners.’”

According to Showers, questions of “improper advocacy” have been raised in about one half of one percent of these instances since 2012.

Skorup states that, according to Chris Hackbarth (via MIRS News Service), Director of State Affairs for the Michigan Municipal League, the Michigan Secretary of State’s office has found five instances in since 2012 of local governments crossing the line when advertising ballot matters.

“The problem with that analysis is that the only real limit to date on local governments is that they can’t specifically say ‘vote yes’ for a proposal,” wrote Skorup. “But, they have been allowed to advocate by: asking everyone to ‘pitch in,’ ‘ask for your support,’ ‘fund our future,’ and ‘ask voters to renew.’ They have been able to say a tax increase ‘can mean the difference between life and death,’ ignore $260 million of tax increases, claim a tax increase will ‘boost Michigan’s employment rate and the economy,’ ‘secure a better future’ and more.”

Advocating Openness
Boyne City Commissioner Hugh Conklin suggested an addition to the resolution that some Republican and Democratic lawmakers voted for the bill without having read it.

Indeed, a Jan. 7 piece on progressive political site electablog.com quotes Republican Sen. Dave Pagel of the 78th District as saying he was embarrassed that he and many of his colleagues voted for the bill despite there being 40 additional pages added to it at the last minute and few if any lawmakers actually reading what was in the proposal.

“As elected officials, I think we should give citizens all the facts we can whether it’s pros/cons of any issue,” said Boyne City Commissioner Delbert “Gene” Towne.

Resolution to Repeal
Boyne City Commissioners unanimously approved the resolution to repeal which states, in part, “[T]his law places an immediate gag order on entities with ballot questions.”

The resolution goes on to say municipal elected and appointed officials are bound to inform the citizenry of election issues.
“[B]ecause the new law bans only communication on local ballot issues, it creates inconsistent treatment of statewide ballot questions versus local initiatives,” the resolution says… “[T]here are substantial questions regarding the constitutionality and legality of the new law, including a possible ban on freedom of speech.”

Clarification of PA 269
According to Skorup, when Gov. Rick Snyder signed the bill, he asked for a clarification so that public officials would be able to respond to questions regarding election matters if it is a function of their job.

“A new proposed bill—House Bill 5219—ensures that and allows local governments to send out the ballot language and the election date of proposals,” Skorup wrote.

 

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