Michigan Election Rules: Federal Court Fight Over Disclosure Mandates

Michigan voters approved Proposal 2 to curb political money, but a federal lawsuit filed this week seeks to block key parts of the new law. The Mackinac Center for Public Policy argues the measure’s disclosure rules violate the First Amendment by punishing groups for simply discussing public policy. The legal challenge targets the reporting requirements for electioneering communications, not the ban on pay-to-play donations from utility companies and government contractors.

The new rules require any individual or entity spending at least $5,000 on electioneering communications in a calendar year to file a report within ten days. Additional filings are required for every subsequent $5,000 spent. These documents must list the dates and costs of the communications, the candidates mentioned, vendors paid, and any donor who gave more than $100. The measure defines these communications as public messages, such as broadcasts, print articles, mailers, or internet posts, that reference a specific candidate and are targeted to the relevant electorate. Such targeting is required within 100 days of a general election or 30 days before a primary or special election.

Patrick Wright, vice president of legal affairs at the Mackinac Center, described the provisions as a Trojan horse. He stated that the law exposes ordinary citizens and organizations to criminal penalties and harassment for discussing public policy. The center contends that the rules capture messages that promote, support, attack, or oppose candidates, even when they do not explicitly urge voters to take action. Wright said voters deserve the freedom to debate and report on policies without facing these new reporting burdens.

Brett Nolan, an attorney for the Institute for Free Speech representing the Mackinac Center, noted that the law lacks an express exception for neutral reporting, legislative voting records, or policy research. While the measure retains an existing exemption for certain news stories and commentary, the complaint argues this does not resolve the broader requirements. The lawsuit cites the Mackinac Center's MichiganVotes project, policy scorecards, magazines, and radio programs as examples of speech that could be affected. Nolan emphasized that the Supreme Court has recognized disclosure mandates create a chilling effect on free speech due to the risk of political harassment.

Maura Cowley, campaign manager for Michiganders for Money Out of Politics, said the lawsuit was expected. She stated that the group submitted more than 560,000 signatures to place the measure on the ballot. Cowley described the opposition as being bankrolled by corporations that have prepared for this legal challenge since the measure first qualified. She affirmed that the group is prepared to take on the legal challenge and remains confident in the initiative's ability to survive court review.

The lawsuit seeks to block the electioneering-communications reporting requirement and the political-committee rules as applied to the Mackinac Center. It does not ask the court to overturn the entire proposal. Proposal 2 is set to take effect ten days after the official declaration of the vote. According to the lawsuit, that deadline is December 3.

The measure aims to close what the MOP UP Michigan group calls 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 legal filing argues that the new thresholds leave critical questions unanswered. These include how to determine if a communication is targeted to the relevant electorate and which specific expenses count toward the financial threshold.