Government and Law

What can I say? ‘Gag order’ rules murky

June 28, 2016
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Picture it: Lansing, Dec. 12, 2015. It’s the last day of the legislative session. State representatives are weary and trying to cover a lot of ground.

Two months prior, the State Senate passed a bill amending the Michigan Campaign Finance Act. In the State House, a representative introduces a substituted bill ballooning the Senate-passed bill to over 40 pages.

The House passes the substituted bill that night with immediate effect. Representatives would soon discover they have approved a few new sentences that will draw immediate ire from public bodies across the state. Part of the new Public Act 269 is a section that appears to drastically limit how public bodies can communicate with the public on ballot measures. On Jan. 6, 2016, Gov. Snyder signed Act 269 into law.

The legislation

It is common knowledge among public bodies and their counsel that the MCFA prohibits the expenditure of public funds on advocacy for a particular candidate or ballot measure. Factual information has always been permitted.

Prior to Act 269, the MCFA specifically exempted “the production or dissemination of factual information concerning issues relevant to the function of the public body.” However, with Act 269, that exemption became subject to a new limitation.

That new limitation, found in Section 57(3), states: “Except for an election official in the performance of his or her duties under the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992, 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.”

In other words, in the 60 days leading up to an election, a public body cannot use public funds to communicate information to the electorate on a local ballot question by use of four methods: radio, television, mass mailings and prerecorded messages.

Public officials were instantly concerned by this new law, which became known as the “gag order” legislation. Did it mean that a school district could no longer explain a millage request in its newsletter to residents? Did it mean that a mayor could be fined for appearing on a local radio program to discuss an upcoming election on proposed amendments to the city charter? No one was sure.

A federal lawsuit immediately followed, and several legislators scrambled to propose a legislative “fix.”

The lawsuit, filed in the U.S. District Court, Eastern District of Michigan by a cohort of mayors, city managers, a county commissioner, school board presidents, school superintendents and a private citizen, alleged that Section 57(3) is an unconstitutional violation of the First Amendment right to free speech and the Fourteenth Amendment right to due process.

In February, Judge John Corbett O’Meara issued a preliminary injunction preventing enforcement of the challenged provision while the case was pending. In late April, the Secretary of State entered into a settlement agreement with the plaintiffs, permanently enjoining enforcement of Section 57(3).

To date, House Bill 5219 is the only legislative proposal to have a committee hearing. HB 5219 strikes the 60-day window, clarifies that a public body can distribute “factual and strictly neutral information … except if the communication can reasonably be interpreted as an attempt to influence the outcome of a local ballot question,” and puts boundaries on the meaning of the word “communication” as used in Section 57(3). HB 5219 was passed by the House in February and currently sits in the Senate Committee on Elections & Government Reform.

Rightly concerned

In light of most legislators’ apparent lack of knowledge of Act 269’s full contents, Section 57(3)’s vague wording and the unintended outcomes that enforcement could bring, schools and local governments were rightly concerned when Act 269 was signed into law.

For certainty and consistency’s sake, it would be helpful for Section 57(3) to be addressed legislatively. However, the settlement agreement ending the federal lawsuit brings some relief, and public bodies can rest easier knowing that until that time, Section 57(3) will not be enforced.