Federal suit targets Michigan election disclosure rules

Proposal 2 in Michigan now faces a federal legal challenge over its new electioneering communication disclosure rules. The Mackinac Center for Public Policy filed a First Amendment lawsuit arguing that the measure's reporting requirements could trap journalists, nonprofits, and policy researchers in complex compliance obligations. The initiative was ratified by voters with the goal of reducing pay-to-play donations and limiting the influence of money in politics.

The legal dispute centers on provisions that require detailed reporting for groups making electioneering communications. Under the new law, any individual or entity spending at least $5,000 on such communications in a calendar year must file a report within ten days. Additional reports are required for every subsequent $5,000 spent. These filings must detail dates, costs, candidates mentioned, vendors paid, and donors who contributed more than $100.

Voters approved the measure after organizers collected more than 560,000 signatures to place it on the ballot. The initiative defines electioneering communications as public messages that reference a clearly identifiable candidate. These include broadcasts, print publications, mailings, and internet communications targeted to the electorate within 100 days of a general election or 30 days before a primary or special election. The measure is set to take effect ten days after the official declaration of the vote, with a deadline of December 3.

Patrick Wright, vice president of legal affairs at the Mackinac Center, described the measure as a Trojan horse for criminal penalties and harassment. He stated that voters deserve the freedom to debate and report on policies without facing these new burdens. The lawsuit specifically targets the electioneering-communications reporting requirement and the political-committee rules as applied to the Mackinac Center. It does not challenge the central pay-to-play restrictions on contributions from utility companies and government contractors.

Brett Nolan, an attorney for the Institute for Free Speech, noted that the new reporting provision lacks an express exception for neutral reporting or policy research. Nolan pointed out that the Supreme Court has recognized that disclosure mandates create a chilling effect on free speech due to the risk of political harassment. He argued that imposing higher costs on those who exchange ideas will result in fewer people engaging in such discussions. The complaint cites specific examples of affected speech, including the Mackinac Center's MichiganVotes project, policy scorecards, magazines, and radio programs.

Maura Cowley, campaign manager for Michiganders for Money Out of Politics, said the lawsuit was expected. She expressed confidence that Proposal 2 will withstand legal scrutiny. Cowley described the opposition as being bankrolled by corporations that have been preparing for this legal challenge since the measure first qualified. She stated that Michigan voters delivered a resounding mandate to end pay-to-play politics and put power back with the people.

The measure is designed to close what supporters call an issue-ad loophole. This loophole allows groups to discuss candidates or ballot questions without expressly urging voters to act, thereby avoiding certain disclosure rules. The Mackinac Center argues that the law leaves critical questions unanswered, such as how to determine if a communication is targeted to the relevant electorate. The lawsuit seeks to block the specific reporting requirements rather than overturning the entire proposal.

The legal battle highlights the tension between transparency goals and free speech protections in state election law. The outcome will determine how strictly Michigan enforces disclosure rules for groups that reference candidates without explicitly urging voters to support or oppose them. The court will decide whether the new thresholds and reporting timelines create an undue burden on political speech.