Governor Signs Senate Bill 571
Governor Rick Snyder signed Senate Bill 571, the controversial amendment to the Campaign Finance Act, at 2:45 p.m. January 6, 2016.
The bill, now known as Public Act 269 of 2015, has generated a significant amount of controversy in many areas. However, the area of most concern to schools and municipalities consists of one sentence in one of the very last provisions:
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.
The provision in question was inserted into the legislation late in the process in a great deal of haste, with virtually no opportunity for the public to react to the proposed restrictions.
Schools and municipalities have, for years, been accustomed to educating the electorate by fully appropriate means that do not offend the provisions of the Campaign Finance Act. Thus, members of the school and municipal communities are rightly concerned that this amended provision addresses a fictitious problem and "muzzles" officials seeking to educate voters about important information, including millage and other ballot questions. Some have called it unconstitutional as a violation of free speech, and others have referred to the provision as an attack on democracy. There have also been multiple requests for an opinion from the Attorney General on whether this provision is lawful.
It is important to look to established rules of statutory construction in order to predict application of this new statute. One such principle is that enumeration of one thing excludes others. Thus, under this rule, the prohibited conduct would be very narrowly drawn. In that case, the only prohibition is upon the use of public funds or resources for communication by means of only the following media: radio, television, mass mailing, or prerecorded telephone message. Also by necessity, because not specifically excluded, the use of email, social media, placing of information on the district's or municipality's website, providing personal opinion in face-to-face meetings, and similar means that are not specifically prohibited, all should remain permissible. Such things as town hall meetings, visits on personal time to the PTA, and formation of committees and task forces, it would follow, would likewise appear to be permissible.
The Governor has issued a signing statement clarifying his understanding of the legislation which bolsters the perspective set forth above. Specifically, he characterized the prohibitions as relating only to "targeted, advertisement style mass communications" intended to use taxpayer dollars to influence the electorate. Private viewpoints and other educational mechanisms not specifically prohibited would still be permissible, per the Governor's letter.
The Governor stated:
...the new language . . . only applies when local governmental entities use taxpayer resources to distribute mass communications concerning ballot questions. As I interpret this language, it is intended to prohibit communications that are plain attempts to influence voters without using words like "vote for" or "support." With this clarified prohibition, there remain many other mechanisms, including private entities, associations, and political action committees to encourage support or opposition to a ballot proposal that do not rely upon public resources.
The Governor goes on to write that "policymaking officials still can express their own views; a public body can use its facilities to host debates or town halls on ballot questions; and local officials can express their own personal views on their own personal time." Additionally, the Governor called for clarifying legislation (a so-called "trailer bill") to ensure that his perspective is captured.
While the restrictions that SB 571 places upon municipal and educational communication with the public raise cause for concern, there is substantial authority, both under the rules of statutory construction and by way of reference to the Governor's signing statement, to suggest that efforts to provide information about critical issues facing the electorate may still proceed in earnest.
If you have any questions regarding the content of this update, please contact Joe Urban at (248) 988-1829 | firstname.lastname@example.org or another member of Clark Hill's Education Law Practice Group.