Federal District Court Bars Enforcement of Controversial Campaign Finance Act Amendment

On February 5, 2016, the U.S. District Court for the Eastern District of Michigan issued a preliminary in­junction prohibiting the State of Michigan and the Secretary of State from enforcing Section 57(3) of the Michigan Campaign Finance Act (“CFA”). Taylor v Johnson, Case No. 16-10256 (ED Mich, 2016).

Section 57(3) of the CFA was added by Public Act 269 of 2015, which, among other things, generally prohibits schools and other public bodies from refer­encing a ballot question in certain forms of mass communications to voters during the 60 days immedi­ately preceding an election. Specifically, Section 57(3) of the CFA prohibits a public body, during this 60-day period, from using:

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.

In response to PA 269’s passage, several public officials sued the State of Michigan and the Secretary of State, arguing that Section 57(3) violates their con­stitutional free speech and due process rights. The plaintiffs asked the court to declare Section 57(3) un­constitutional and permanently enjoin its enforcement. The plaintiffs also asked the court to is­sue a preliminary injunction to prevent the State of Michigan and the Secretary of State from enforcing Section 57(3) while the case is pending. The court granted the plaintiffs’ request for a preliminary injunc­tion as the litigation challenging the constitutionality of Section 57(3) moves forward.

Accordingly, the court’s ruling temporarily prohibits the State of Michigan and the Secretary of State from enforcing Section 57(3) until the court ren­ders a final decision or lifts the injunction. Until the court rules otherwise, school officials may again dis­seminate factual information to their constituents about upcoming ballot proposals. Because the injunc­tion is temporary, it is important to monitor this case’s development. We will provide updates through School Law Notes and will directly contact clients with upcoming elections about any legal developments.

The court’s ruling only affects Section 57(3) as added by PA 269. It does not modify any other portion of the CFA, and schools may not use their resources to advocate for the passage or defeat of a ballot proposal.

There also are several bills pending in the Michigan Legislature that attempt to amend Section 57(3). It likely will be several weeks before the Michigan Legislature passes any of those bills, if any.

If you have any questions about the court’s order or the recent Campaign Finance Act changes, please contact your Thrun Law Firm election attorney.