As Michigan contemplates potential legislative limitations on First Amendment rights, one common theme has emerged about the legitimacy of those actions: they are unconstitutional. Michigan joins a notorious fraternity of states that have legislated in excess while attempting to “remedy” the perceived injustice of the Supreme Court ruling Citizens United v. Federal Election Commission.
In hearings held earlier this week, a variety of stakeholders in the campaign financing process, including the Center for Competitive Politics, submitted testimony concerning legislation limiting the ability of corporations to be involved in the political process in Michigan. Michigan’s proposed remedy has been derided by all sides and reeks of a partisan power-play. These seven Michigan bills (one bill would simply apply the restrictions to unions as well) place arduous hurdles in the way of corporations (including nonprofits) exercising their First Amendment rights. One bill would require all shareholders in a publicly traded company to be informed of the prospect of an independent expenditure 30 days in advance. Additionally, any corporation with even a single foreign shareholder is barred from making a political statement in the public arena.
Common Cause is an advocate of tax funded campaigns and restricting the First Amendment political rights of incorporated groups and wealthy individuals. Yet, even they recognize that what Michigan is attempting to do is blatantly unconstitutional. Testifying about the conglomeration of bills attempting to limit corporate independent expenditures, Common Cause stated that “they require work to past First Amendment constitutional muster.” If even an organization with Common Cause’s track record of seeking limitations on political speech cannot stomach these Michigan bills, then something must truly be amiss.
Unfortunately for people trying to speak out politically in Michigan, they are encountering a legislature inhospitable to their concerns. Since the landmark Supreme Court case of Buckley v. Valeo in 1976, the Court “has found over and over again” that restrictions of free speech must be narrowly tailored. Regrettably Michigan’s Democratic-controlled House has tried over and over again to limit free speech, especially that of corporations. “Much in those six bills is, on its face unconstitutional.” So says Robert LaBrant, Senior Vice President and General Counsel of the Michigan Chamber of Commerce. Clearly these onerous and illegitimate restrictions fail to pass legal muster as can be seen from either side of the debate over freedom in electoral politics.
