Gov. Rick Snyder signed a comprehensive campaign finance bill into law on Jan. 6, Senate Bill 571. It generated quite the clamor, including accusations that the bill includes a “gag order” against public officials.
We live in a time of significant campaign finance deregulation, largely the result of free speech rulings by the U.S. Supreme Court in cases like Citizens United v. Federal Election Commission. Progressives and so-called campaign finance reformers often claim that the case and permissive campaign laws are “tamper(ing) with our democracy.” But their ire against Michigan’s new law is ironic to the point of hilarity. Indeed, progressives have finally found their inner Citizens United and the value of free speech over campaign finance regulations.
In the 1990s, incumbents in Congress got upset with the increasing number of advertisements criticizing their positions on numerous issues. Since these ads did not explicitly ask listeners to vote for or against anyone, they could be financed with corporate or union money. Campaign reformers called them “sham issue ads,” but could not figure out a way to distinguish them in the law from “real” issue ads.
So, in the McCain-Feingold legislation in 2002, they went so far as to prohibit any corporate or union money from financing TV ads that merely mentioned a candidate’s name within 60 days of a general election.
With this in mind, the provision of the new Michigan law sounds familiar. “(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 that) references a local ballot question.”
The prohibition is on public money instead of union and corporate funds and the elections in question involve ballot measures and not candidates. Otherwise, this is the same kind of broad censorship we saw in McCain-Feingold, and I believe the interpretation of critics is correct: the law prohibits Michigan school districts and officials from using school resources to merely inform residents by mail that a vote on a local education tax is coming up within 60 days of the vote.
Citizens United overturned the McCain-Feingold provision, allowing corporations and unions to not only mention candidates’ names in television advertisements but to expressly call for their election or defeat. Since the prohibition here involves tax money — specifically, the danger of taxpayers paying for the government to advertise for more tax money — the precedent is not directly applicable. But the larger issue of free speech certainly is.
While it is appropriate to keep taxpayer funds from subsidizing government electioneering, this can be accomplished far more narrowly than the new law. But after spending decades decrying campaign spending and finding reasons to regulate even speech focused on political issues simply because it might have some tangential effect on an election (that is, all political speech), progressives and reformers have no one to blame but themselves that the tables turned.
Let’s not kid ourselves: school mailers “informing” residents about an upcoming tax vote usually include only the rosiest portrayals of school taxes. Nevertheless, like “sham issue ads” from corporations and unions it is better to respond to speech with which we disagree with our own speech, not censorship or red tape. Unlike McCain-Feingold’s broad prohibition, which festered for the better part of a decade before it was overturned, it appears Michigan’s provision will be amended legislatively before it does any damage.
Hopefully, next time progressives eagerly pick up the mantle of “reform” they will keep this episode in mind.
Steve Klein is an attorney with the Pillar of Law Institute in Washington, D.C. He is an active member of the Michigan State Bar.