Michigan voters approved a ballot initiative known as Proposal 2, intended to restrict pay-to-play donations and reduce the influence of money in politics. However, the measure has prompted a federal lawsuit alleging that its speech and disclosure provisions violate the First Amendment by potentially burdening journalists, nonprofits, and policy researchers.
The Mackinac Center for Public Policy, the organization behind the lawsuit, is not contesting the core restrictions on political contributions from utility companies and government contractors. Instead, the lawsuit targets provisions that impose reporting and disclosure requirements on certain communications that mention candidates or "promote, support, attack, or oppose" candidates or ballot questions, even without explicit calls to vote a certain way.
Patrick Wright, the Mackinac Center’s vice president of legal affairs, stated that the lawsuit was filed because Proposal 2, despite its aim to combat corruption, could subject the Mackinac Center, its supporters, and individuals to penalties for discussing public policy. "Michigan voters deserve the freedom to research, debate, and report on the policies that shape their lives," Wright said.
Under Proposal 2, any entity, not just campaign committees, that makes electioneering communications totaling at least $5,000 in a calendar year must file a report within 10 days. Additional reports are required for every subsequent $5,000 spent. These reports would detail the costs, candidates mentioned, vendors paid, and donors who contributed over $100 for the purpose of the communications.
Electioneering communications are defined by Proposal 2 as public messages referencing a clearly identifiable candidate within 100 days of a general election or 30 days before a primary or special election. These communications must also be targeted to the electorate where the candidate appears on the ballot. The Mackinac Center argues that the measure contains ambiguities regarding which expenses count toward the threshold and how the targeting of communications is determined.
The lawsuit also challenges the expanded definition of an election-related "expenditure" under Proposal 2, which includes public communications that "promote, support, attack, or oppose" a candidate or ballot question, irrespective of express advocacy. The Mackinac Center contends that the measure lacks a clear exception for neutral reporting, legislative voting records, or policy research, potentially ensnaring its MichiganVotes project, policy scorecards, and public policy events.
"The more costs we impose on those who want to exchange ideas and discuss public policy, the fewer of those people we will have," said Brett Nolan, an attorney with the Institute for Free Speech representing Mackinac. "The notion that the government has an interest in monitoring people who talk about public policy if they dare mention an elected official is antithetical to the First Amendment."
The lawsuit seeks to block the electioneering-communications reporting requirement and the political-committee rules as they apply to the Mackinac Center. Proposal 2 is scheduled to take effect shortly after the official declaration of the vote, no later than December 3.
MOP UP Michigan, the group advocating for Proposal 2, expressed confidence that the measure will withstand legal scrutiny. The group stated that Proposal 2 is designed to close an "issue-ad loophole" and prevent candidates from discussing ballot questions or other candidates without disclosing their donors. "Last night, Michiganders spoke loud and clear, voting to pass Proposal 2 with an overwhelming majority and delivering a resounding mandate to end pay-to-play politics and put power back where it belongs – with the people," the group said in a statement.