Michigan voters have approved Proposal 2, an initiative presented as a way to curb pay-to-play donations and reduce the influence of money in politics. Now the measure is facing a federal First Amendment lawsuit. The Mackinac Center for Public Policy argues that parts of the law could burden journalists, nonprofits and researchers who discuss candidates or public policy.
The group behind the proposal, Michiganders for Money Out of Politics, or MOP UP Michigan, said it had expected a legal challenge. Campaign manager Maura Cowley said the organization believes Proposal 2 will hold up in court. Organizers had gathered more than 560,000 signatures to get the measure on the ballot.
The Mackinac Center says it is not contesting Proposal 2’s main restrictions on political contributions from utility companies and government contractors. Its lawsuit focuses instead on reporting and disclosure rules for certain communications that mention candidates or “promote, support, attack or oppose” a candidate or ballot question, even when they do not directly call for a particular vote.
Patrick Wright, the center’s vice president of legal affairs, said the measure could expose the organization, its supporters and members of the public to penalties or harassment for discussing public policy. He described the proposal as going beyond its stated aim of addressing corruption.
Under Proposal 2, anyone—not only a campaign or political committee—who spends at least $5,000 in a calendar year on covered “electioneering communications” must file a report within 10 days. Further reports are required for each additional $5,000 in spending. The filings would include the dates and costs of the communications, the candidates they mention, payments to vendors and details about donors who gave more than $100 to support the communications.
The proposal defines electioneering communications broadly. They can include public messages in broadcasts, print, mail, phone calls, online communications and other formats that identify a candidate within 100 days of a general election, or within 30 days of a primary or special election. The communication must also be directed to voters in the area where that candidate is on the ballot, but the law does not require an explicit appeal to vote for or against the candidate.
The Mackinac Center says the rules leave key matters unclear, including which costs count toward the $5,000 threshold, what it means for a donor to give money “for making” electioneering communications, and how the state will decide whether a message was aimed at the relevant voters.
The lawsuit also challenges Proposal 2’s expanded definition of an election-related “expenditure.” Under the revised definition, a public communication can count as an expenditure if it promotes, supports, attacks or opposes a candidate or ballot question, even without directly urging voters to support or reject it. An organization that spends at least $500 on these expenditures could be classified as a political committee if the state finds the spending was intended to influence voters.
Brett Nolan, an attorney with the Institute for Free Speech who represents the Mackinac Center, said the new reporting rules do not specifically exempt neutral journalism, legislative voting records or policy research. Proposal 2 does keep an existing exemption for some news stories, commentary and editorials from being classified as campaign spending. The center argues, however, that this does not settle whether those materials must still be reported as electioneering communications.
The lawsuit cites the center’s MichiganVotes project, policy scorecards, a neutral policy brief on Proposal 2, magazines, radio programs, podcasts and public-policy events. The center says these activities could fall within the new requirements because they sometimes refer to elected officials or candidates.
Nolan argued that disclosure rules can discourage people from speaking because they may fear political harassment. He also said the law reaches beyond the state’s interest in knowing who funds campaigns and election advocacy, and questioned whether the government should monitor public-policy discussions simply because they mention an elected official.
The Mackinac Center is asking the court to block the electioneering-communications reporting rule and the political-committee provisions as they apply to the organization. It is not seeking to invalidate Proposal 2 as a whole. The lawsuit says the measure is due to take effect 10 days after the vote is officially declared, and no later than Dec. 3.
Cowley said the lawsuit was expected and accused corporations backing the opposition of preparing for a legal fight since the proposal qualified for the ballot. She said MOP UP Michigan was ready to defend the measure.
The group says Proposal 2 is intended not only to curb pay-to-play donations but also to close what it calls an “issue-ad loophole”: the ability to discuss candidates or ballot questions without directly urging voters to support or oppose them, thereby avoiding some disclosure rules. Cowley said Michigan voters had delivered a strong mandate for ending pay-to-play politics and returning influence to the public.
