Is SB 571 Even Constitutional?

editor's note:  We asked Kyle Courtney, our Libraries and the Law Advisor, to weigh in on the question of "What remedies are there in the courts for library boards and librarians in Michigan if SB 571 is signed and becomes the law of the land?" His analysis and suggestions are preliminary, but important for library communities to start considering:

Michigan Senate Bill 571 (SB 571) updates, adds, and modifies portions of the Michigan Campaign Finance Act (MCFA). It is, as of this writing, ready to be signed by the Governor.  One specific provision, which was added during the time when the Michigan House of Representatives had the bill, amends Section 57 of the MFCA in such a way that it could prevent libraries from sharing information about proposed ballot questions, and, furthermore, fine and/or jail those librarians that break this law! Sounds impossible, right? Well the new amended section reads:

EXCEPT FOR AN ELECTION OFFICIAL IN THE PERFORMANCE OF HIS OR HER DUTIES UNDER THE MICHIGAN ELECTION LAW, 1954 PA 116, MCL 8 168.1 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.

You may be asking: How can a public library newsletter (a.k.a. “a mass mailing” (over 500 pieces of mail satisfies the requirement of mass mailing)) become illegal if it educating the public about local ballot issues, library issues, and other forms of governmental transparency? Basically, if this bill is signed into law, it disallows any communication between local governments/local libraries and their citizens within two months of an election!

How did the Michigan legislature get here? The Michigan Campaign Finance Act (MCFA) prohibits a “public body” from using public resources to make a “contribution or expenditure” for political purposes.  Mich. Comp. Laws Ann. § 169.257 (West 2015)

There has been some caselaw indicating that “[i]t is well settled that the Legislature of this state is empowered to enact laws to promote and regulate political campaigns and candidacies.” Council No. 11, AFSCME v. Civil Serv. Comm., 408 Mich. 385, 395, 292 N.W.2d 442 (1980).  The citizens of Michigan have granted the Legislature broad powers to regulate elections. The Michigan Constitution empowers the Legislature to set forth the qualifications of electors; the time, place, and manner of elections; and limitations on terms of office. Const. 1963, art. 2, §§ 1 through 10. Furthermore, Const. 1963, art. 2, § 4 requires the Legislature to preserve the integrity of elections, providing in pertinent part:

The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.

As “charged” to preserve the “purity of elections” and to “guard against abuses of the elective franchise,” the Legislature enacted MCL 169.257, commonly referred to as § 57 of MCFA.

Again, Section 57 would prohibit a “public body” from using public resources “to make a contribution or expenditure” for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. The clear purpose of § 57, as reflected in its language, is to mandate the separation of the government from politics in order to maintain governmental neutrality in elections, preserve fair democratic processes, and prevent taxpayer funds from being used to subsidize partisan political activities.

This current part of § 57, is understandable.  However, SB571 will alter § 57 and puts the very idea government transparency and freedom of speech in jeopardy when, in 60 days before an election, the government is telling state officials, school boards, librarians, etc. that they can’t even respond on their computer or phone, to a question from a citizen!

Let’s say it SB 571 is signed by the governor – what can be done?  

Arguably, a citizen (a person defined in the act as "a person acting for a public body") should file with a court to prevent the enforcement of that law.

A few options I can think of: bring suit under federal law 42 U.S.C. § 1983 alleging that the new Michigan law unconstitutionally deprived the person of his free speech rights under both the First Amendment of the United States Constitution and Article I, section 5, of the Michigan Constitution. The person would claim the law was an unreasonable limitation on free speech rights in a public forum.

I am no First Amendment scholar, but a law giving one office (in this case the office that would fine and/or jail the person who spoke up during those 60 days) unbridled discretion over whether to deny or permit expressive activity carrying political, religious, philosophical or ideological messages seems to violate the First Amendment.

Now, even in a public forum, a government may impose reasonable restrictions on the time, place, or manner of protected speech.  Of course, these restrictions must be justified without reference to the content of the regulated speech (known as “content-neutral”) and 1) they are narrowly tailored to serve a significant governmental interest, and 2) they leave open ample alternative channels for communication of the information. This is often referred to as the “intermediate scrutiny” test, which courts employ when laws are potentially abridging content-neutral speech.

While this bill seems content-neutral (the 60 days applies to all ballots, regardless of topic), what about 1) the government interest are they serving? Is it narrowly tailored?  Or does it directly impact important speech functions to ban all communications from public bodies about the ballot measures?  I must say, there is no narrowly tailored gov’t interest that I see as rational.  Well, truthfully, I can smell the “fiscal - save money” in ballot mailing and calls argument, but it’s not worth sacrificing government information and transparency to talk about the measures on which the public should vote, right? Fiscal conservatives – even you can see that this democratic foundation should allow the informed an open debate about ballot measures – even at the cost of some mass mailings (newsletters), phone calls, and TV/Radio (even on local access stations focused on such ballot initiatives).

And for 2) leaving open ample alternative channels for communication of the information….?  Does SB 571 leave open ample alternative channels for communication of the information? Absolutely not!  It seems that there are absolutely no channels open to public bodies (and their staff) during those 60 days before the ballot is voted upon. It prohibits “radio, television, mass mailing, or prerecorded telephone message if that communication references” – which leaves nothing left for alternate channels.

Based on this quick assessment, I am sure that this law may not pass a intermediate scrutiny analysis from any court.

So public libraries, boards, and library staff in Michigan – if the governor signs this law, are you willing to stand up for your rights to free speech and transparency in government?

Let’s hope it doesn’t come to that!  Tell Gov. Snyder to veto SB 571!

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