Fact check: Would ‘money out of politics’ proposal stifle free speech?

An effort to get large-scale utility and state contractor money ‘out of politics’ was certified for the November ballot this week
Opponents claim the petition would stifle free speech through political donation bans
While courts will be the final say on free speech claims, organizers have billed the petition as a first step in campaign finance reforms

LANSING — Michigan voters will likely decide in November whether to bar certain political contributions by DTE Energy, Consumers Energy and large government contractors, along with their top executives and other people with substantial connections to them.

Is that an attack on free speech, as critics claim?

The Board of State Canvassers this week approved a ballot summary for Michiganders for Money Out of Politics, or Mop Up Michigan. The proposal is slated for the Nov. 3 ballot, although opponents have asked the Michigan Supreme Court to block it—and the Legislature could enact it before then.

If approved by voters, the initiative would ban specific political contributions by people with substantial connections to regulated electric and gas utilities and businesses with over $250,000 annually in government contracts.

Supporters say the proposal would rein in pay-to-play politics, but opponents contend it is a violation of free speech rights under the First Amendment and may be ripe for legal challenges.

“There are a lot of attorneys who feel that there’s no way this (petition) will pass muster” should voters approve it, said John Sellek, spokesperson for opposition group Protect MI Free Speech.

Related:

The US Supreme Court has generally held that political spending by corporations is protected speech, most notably in Citizens United v. Federal Election Commission, but courts have looked more favorably on narrowly tailored proposals aimed at limiting corruption.

Here are the facts.

Whose spending would be banned?

The ballot proposal targets corporations like DTE, Consumers and Blue Cross Blue Shield of Michigan, which have spent significant sums to support candidates and lawmakers in both major political parties.

Corporations are already barred from directly giving to candidates in Michigan. The proposal would, in part, extend that ban to an affected company’s president, CEO, treasurer or an officer with similar responsibilities, along with people who have “substantial” ownership or serve on its board of directors.

It would “not impact anybody’s ability to express their free speech,” argued Sean McBrearty, one of the ballot committee’s organizers.

“Once this passes, corporate CEOs at DTE or any other government contractor or utility will have the same right that any of us do to go knock doors for the candidates they want,” he added.

But the proposal would restrict political contributions by those individuals, along with immediate family members, who would be barred from donating to any of the following:

The governor, attorney general, state senator, representative or candidate for such office
A state or local party committee
A committee, other than an independent expenditure committee or ballot question committee, that makes contributions to a candidate
A member of the Michigan Public Service Commission

Company officials and immediate family members could also not donate to entities that are affiliated with elected officials or candidates and pay for their travel, meals, conference fees or other expenses.

Consumers and DTE have spent on political races through employee-funded PACs and “dark money” nonprofits that don’t have to disclose donors. The proposal would require disclosure by groups that reference candidates or ballot issues in so-called issue ads.

The proposal would not prohibit contributions to independent expenditure super PACs allowed under Citizens United, but it includes language anticipating potential legal challenges: “If any portion is found void, invalid or unenforceable, the remaining portions remain in effect.”

Free speech

A major argument against the petition is that banning political donations suppresses the First Amendment right to political association.

The proposal is “a direct attack on Michiganders — intended to silence them from lawfully participating in issues that affect their lives, families and communities,’ DTE Energy spokesperson Ryan Lowry said in an email.

Consumers Energy has raised similar concerns.

Mop Up Michigan co-chair Christy McGillivray has called the free speech arguments “bullshit,” arguing that “money in politics silences speech while making sure the only speech politicians here are their marching orders from their billionaire donors.”

The US Supreme Court held in a 1976 case, Buckley v. Valeo, that political spending is a form of speech. And in the 2010 Citizens United decision, the court ruled that corporations and unions have similar rights to make unlimited independent expenditures.

Laws banning corporate contributions in several states were struck down following Citizens United, according to the National Conference of State Legislatures.

But some states still have narrower restrictions on political spending by government contractors, including Illinois and South Carolina, which ban contributions to elected officials who approve contracts.

State governments generally have more leeway to regulate direct contributions to candidates.

It’s possible judges could disagree, but for “the last 50 years, the courts have said it is perfectly constitutional to limit campaign contributions to reduce the risk of corruption,” said Daniel Weiner, senior director of the Brennan Center’s Elections and Government Program.

That’s also true with laws that “single out particularly people doing business with the government” or are “uniquely kind of under the government’s thumb, like regulated monopolies,” he said.

When Mop Up Michigan turned in petition signatures in May, McBrearty said he was confident that the proposal is legal.

“This was meticulously drafted by a large and experienced legal team to meet the standards that have been set not only in law but in the courts in other states and all the way up to federal appeals courts,” he said.

The bottom line

If the measure passes, it could well prompt a lawsuit — and it’s tough to predict what any judge would decide.

Nothing in the law would limit consumers and state contractors from publicly advocating for candidates, and other states have managed to limit some forms of political spending while staying within the law.