Lawsuits challenge Michigan's Proposal 2 on First Amendment grounds

Mackinac Center and energy companies lead legal challenge

The Mackinac Center for Public Policy filed one of the federal lawsuits. CMS Energy, Consumers Energy, and DTE filed the second lawsuit.

The Mackinac Center specifically challenges the disclosure and reporting requirements of Proposal 2.

Plaintiffs argue disclosure rules create chilling effect on speech

The lawsuits seek a declaration that two disclosure rules are unconstitutional and an injunction to prevent the state from enforcing them. Plaintiffs argue that provisions on electioneering communications and campaign expenditures are overly broad. These rules could force nonprofits and news outlets to disclose their financial supporters.

Proposal 2 requires any person who makes electioneering communications totaling at least $5,000 in a year to file a report within 10 days. Filers must submit additional reports for every subsequent $5,000 spent. These reports must include communication costs, dates, candidates mentioned, vendors paid, and information on donors who contributed more than $100.

Organizations that spend at least $500 on such messages may be treated as political committees if the state decides the spending intended to influence voters.

The Mackinac Center argues the law lacks exceptions for neutral reporting, policy research, or legislative voting records. The center notes that its projects, such as MichiganVotes, policy scorecards, and podcasts, could be affected by these rules.

Brett Nolan, an attorney with the Institute for Free Speech, said: "The First Amendment guarantees people the freedom to praise and criticize the elected officials who govern us." Nolan stated that disclosure mandates create an "inevitable" chilling effect on free speech.

Wright said the measure could expose individuals to criminal penalties for discussing public policy. The lawsuit seeks to block the reporting and political-committee rules as applied to the Mackinac Center.

Michiganders for Money Out of Politics said the measure is designed to close an "issue-ad loophole." This loophole allows entities to discuss candidates without express advocacy to avoid disclosure rules.

Gov.-elect Benson named as defendant in constitutional challenge

Gov.-elect Benson is a defendant in the federal lawsuit. She said she is confident the measure will survive judicial review. Benson noted that while there are constitutional concerns regarding free speech, the measure was written to withstand them. She believes the state will continue developing implementation rules while the lawsuit proceeds.

Maura Cowley, campaign manager for Michiganders for Money Out of Politics, said the group is confident the measure will withstand legal scrutiny. Cowley stated that the group was prepared for the legal challenge.

Benson said she will continue to pursue additional ethics and transparency reforms even if portions of the proposal are invalidated. She specifically plans to revive components of the BRITE Act and enhance lobbying oversight. Regarding broader economic policy, Benson noted that attracting film productions will require more than just tax incentives.

Lawsuits do not challenge pay-to-play donation ban

This pay-to-play restriction remains separate from the legal challenge regarding disclosure requirements.

State proceeds with implementation before December 3 deadline

The Michigan Department of State will proceed with drafting rules to implement the ballot measure while the legal challenge continues. Benson also discussed plans to bolster the Michigan economy while lessening the state's reliance on the automotive sector.

Proposal 2 secured by over 560,000 signatures

Michigan voters approved Proposal 2 by a significant majority. Cowley described the vote as a clear mandate to eliminate pay-to-play politics and return power to the people.