'Gag order' legislation meets opposition, engenders lawsuit leading to injunction

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PHOTO COURTESY OF MIKA MEYERS  and ELIZABETH WELCH

by Cynthia Price
Legal News

A provision in the legislation that eventually became PA 269 of 2015 has  resulted in a hailstorm of criticism.

The wording, which prohibits public bodies or public officials from broadcasting or advertising information about ballot questions within 60 days of the election day on which they will come up for a vote,  came to be known as the ‘gag order’ provision.

Specifically, the change to Section 57 of the Michigan Campaign Finance Act reads: “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.”

To add insult to injury, opponents of the bill say, that wording was added at the last minute in the House of Representatives as part of 41 pages appended to a 12-page bill coming over from the Senate. After its passage at nearly midnight right before last year’s session ended, many legislators complained that they were not given enough time to digest all the changes.

Nor was there a hearing or any opportunity for the mechanisms of democratic process leading up to its passage.

The Michigan Municipal League (MML), the Michigan Townships Association, the Michigan Library Association, many school districts, and a wide variety of advocacy organizations sent out alerts the next day, after their experts had a chance to look over the greatly modified bill.

“All of a sudden people started reading it, saying, I can’t believe what this thing actually says,” comments local attorney Elizabeth Welch of Welch Law, who was acting in her position as a school board member and one of the founders of the group Friends of Kent County Schools. “The next day everyone — school boards, municipalities — started rallying. East Grand Rapids passed a resolution.”

Groups coalesced in a campaign to ask Governor Rick Snyder to veto the bill, and on Jan. 5 a variety of them held a press conference at the MML offices.

Nonetheless, Gov. Snyder signed it into law on Jan. 6. At the same time, however, he issued a “signing letter” which read, “... I am calling on the Legislature to enact new legislation to address [local government entities and schools] concerns, and clarify that the new language does not impact the expression of personal views by a public official, the use of resources or facilities in the ordinary course of business, and that it is intended only to prohibit the use of targeted, advertisement style mass communications that are reasonably interpreted as an attempt to influence the electorate using taxpayer dollars.”

After it was signed into law, opposition heated up. The “progressive” online news source Eclectablog said, “The most nefarious effect of this particular element of this bill is to amplify the impact of money in politics because it silences objective sources of information for the entire two-month period before an election...”

Legislators criticized the political maneuverings, voters viewed it as an infringement on their right to be well-informed, and as could be expected, a lawsuit was filed.

On Jan. 26, a group of 17 mayors, city managers, county commissioners, school board presidents, school district superintendents, plus one individual, sued Ruth Johnson and the State of Michigan in the U.S. District Court for the Eastern District of Michigan.

At the time of the filing, attorney for the plaintiffs Scott Eldridge of Miller Canfield stated, “It’s an absolute gag order preventing public officials from addressing their constituents and residents about matters of local concern. It’s so overly broad and vague that it penalizes public officials with a crime if they speak in even an objectively neutral tone about ballot issues.”

MML added, “Moody’s Investors Service warned last week that preventing school districts and local governments from communicating with voters about ballot issues could hurt their credit ratings in the future, essentially making it more expensive for them to finance local projects such as new school buildings.”

The filing claims that the amendment violates the First, Fifth and the 14th Amendments to the U.S. Constitution.

Due to the upcoming March 8 election, the plaintiffs asked for an injunction, and last Friday Judge John Corbett O’Meara granted it.

“This is an important victory for all local governmental officials, statewide, because it preserves the right of local officials to effectively educate and inform the public with objectively neutral, factual information about important millage issues affecting their communities,” commented Ronald D. Redick of Mika Meyers Beckett and Jones, a firm which represents many municipalities, school districts, and public entities.

Of the four standards for granting preliminary injunction, Judge O’Meara relied most heavily on whether there is a strong likelihood of success, agreeing with American Civil Liberties Union Fund of Michigan v. Livingston Cty., that “the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits.  This is because the public’s interest and any potential harm to the parties or others largely depend on the constitutionality of the state action.”

He explored the argument that  the language is impermissibly vague in violation of the Due Process Clause of the Fifth Amendment, which he determined has that required strong likelihood of success, and therefore found it “not necessary” to consider the First Amendment Claim.

The injunction is in effect “until further order of the court,” but Mika Meyers’ Redick says, “I doubt the court will ever reach the final merits of the case.  The court moved quickly to issue a preliminary injunction because of the immediate effects of the ‘gag-order’ legislation, insofar as the March election is concerned. I suspect that the injunction will remain in effect until the state adopts corrective legislation, and at that point, the lawsuit will be rendered moot, making a final decision unnecessary.”

The legislature has come up with several proposed changes. One of them allows for “factual and strictly neutral information concerning the direct impact of a local ballot question on a public body or the electorate,  except if the communication can reasonably be interpreted as an attempt to influence the outcome...,”

Noting that the Michigan Campaign Finance Act already prohibits public bodies from using taxpayer resources to advocate for or against a ballot question, Welch observes, “Most of the proposed changes are still very vague. Is it neutral factual information that the roof is leaking and the school district needs a new roof? If people are abusing their communications with the public to tell voters how to vote, that’s already illegal — deal with that problem, but don’t take away all the avenues for informing the public.”

MML reports that the Department of State found only five valid infractions by public entities over a three-year period.