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.
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.”