Prop 2 could face same constitutional problem that sank 2016 ballot-speech law

When the Michigan government tried in 2016 to restrict what school districts could say about local ballot questions, a federal district court granted a preliminary injunction that described the idea as “unconstitutionally vague.”

If voters pass Prop 2 on Nov. 3, the ballot proposal could face the same fate because of vague, undefined rules.

The vagueness doctrine requires that laws be written clearly so ordinary people can understand what they mean, as a shield against arbitrary or discriminatory enforcement. The doctrine is derived from the due process clause of the Fifth and 14th amendments, according to Cornell Law School.

“As to the merits, Plaintiffs argue that § 57(3) is unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment,” U.S. District Judge John Corbett O’Meara wrote in a February 2016 ruling that stopped the government-enacted restrictions on free speech. “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. It requires the invalidation of laws that are impermissibly vague.’”

Roseville’s mayor at the time, Robert Taylor, had sued the state over the campaign finance law and won.

O’Meara ruled that broad, vague language lets regulators “determine what violates the act. Allowing regulators this type of unrestricted judgment call provides no check against arbitrary or discriminatory enforcement and is what the vagueness doctrine is meant to avoid.”

The court agreed that restricting common speech such as referencing a ballot question would be “absurd.”

This year’s Prop 2, called Mop Up Michigan, is marketed to voters as offering them a chance to rein in DTE Energy and Consumers Energy as they seek rate hikes from regulators or favors from lawmakers.

The proposal uses broad and undefined terms that leave regulators to police speech, according to a new policy brief from the Mackinac Center for Public Policy. The brief examines how the proposal would change the rules governing public discussion of candidates and elections.

If the proposal became law, it would regulate public communications not currently considered political advocacy.

Proposal 2 would subject anyone who posts, publishes or promotes content that refers to a candidate within 100 days of an election to new reporting and financial requirements. It would define “electioneering communication” to include television broadcasts, newspapers, magazines, internet content and “any other form of general public communication.”

Prop 2 doesn’t delineate between nonpartisan education and speech that supports a candidate or ballot question. The measure would restrict speech that promotes, supports, attacks or opposes a candidate for office, Bradley Smith, chairman and Founder of the Institute for Free Speech, told Michigan Capitol Confidential in a phone interview.

The proposal aims to herd hundreds of nonprofits in the state into a regulatory regime to discourage them from speaking, Smith told CapCon. It also could force them to disclose their donors, he added.

“It requires these nonprofits to take on a significant reporting obligation if they spend more than $500 to promote, support, attack or oppose a candidate for office,” Smith said.

The proposal is vague and doesn’t define what it means to “promote, support, or attack or oppose” a candidate, Smith said.

“All of these vague standards are wonderful for weaponizing against your political opponents if you’re in power,” Smith said. “Because what does it mean to ‘promote, support, attack, or oppose’? You can kind of pick almost who you want to get. And one thing the courts have usually insisted on anything that would attempt to regulate things like this, is that at minimum, you have to have a bright, clear standard, so that people know what they can do and what they can’t do. And part of the reason for that is to prevent this weaponization.”

The rules could apply to a group explaining upcoming ballot measures, or a group that supports or opposes data centers, Flock surveillance cameras, or any other policy that affects voters.

Disclosing donors to the state of Michigan could result in leaks to the public, similar to what has happened to the income tax forms of various high-profile individuals over the years. Donors who want to support a cause often don’t want to be identified publicly, Smith said.