With the upcoming February 27, 2024 presidential primary election, campaign season will soon be upon us. School officials (and their consultants) should remember their responsibilities under the Michigan Campaign Finance Act (MCFA).
Advocacy Prohibition
MCFA Section 57 prohibits a public body, including a school, from using its public resources for advocacy. “Advocacy” includes the use of words expressly urging for the support or defeat of a candidate or ballot proposition (e.g., “vote yes,” “support,” and “oppose”). Schools may only distribute non-advocacy factually verifiable information concerning their and any other ballot propositions and any candidates. School-produced ballot information should, therefore, avoid subjective or opinion statements like:
- “this bond issue is necessary to repair the middle school roof”; or
- “the approval of this millage will ensure our students receive a 21st century education.”
The term “public resource” is broadly construed, encompassing not only school funds but also school employees when on school time and school assets funded with public dollars, such as school computer systems. If a school employee (including an administrator) would like to advocate for a school ballot proposition, he or she must do so only on personal time using personal resources (e.g., personal computer, cellphone, email account).
Identification Statement
Under the following circumstances, MCFA Section 47 requires that a communication referencing an election, candidate, or ballot question (such as a bond or millage proposition) contain a statement that identifies the person or entity paying for the communication:
- the communication is disseminated within 60 days before a general election, or within 30 days before a primary election in which the candidate or ballot question appear on the ballot;
- the communication targets the relevant electorate (i.e., the electoral district in which the electors may vote on the candidate or ballot question); and
- the communication is disseminated by radio, television, printed material (including a mass mailing), or prerecorded telephone message.
The requirements for the identification statement vary depending on the type of communication as follows:
- Printed materials must contain an identification statement bearing both the name and address of the person or entity paying for the communication. For most school-produced informational materials, including mailings, brochures, pamphlets, posters, emails, and similar printed items, the identification statement must include the school’s name and address (e.g., “Paid for by ABC Schools, 100 School Avenue, Anywhere, Michigan 50001”). The identification statement needs to appear in a place and in a print that is clearly visible and readable. Small items, such as buttons, do not require an identification statement if the size of the item would make the placement of an identification statement unreasonable.
- Pre-recorded telephone messages and robocalls must state the name, address, and telephone number of the person or entity paying for the message.
- Radio or television advertisements must identify the person or entity paying for the advertisement and comply with FCC regulations. Paid advertisements for radio or television must state specifically “This advertisement was paid for by ABC Schools, 100 School Avenue, Anywhere, Michigan 50001.”
The MCFA does not exempt electronic communications from the identification statement requirement. We recommend including an identification statement on all electronic communications, including emails, materials posted on the school’s website, and social media communications.
For the February 2024 primary election, the identification statement requirements apply beginning Sunday, January 28, 2024. We recommend using the identification statement on all materials, even those produced before Sunday, January 28, 2024, in case they are reused after that date.
Violations
A knowing MCFA violation is a misdemeanor. If the violator is an individual, it is punishable by a fine of not more than $1,000, or imprisonment for not more than one year, or both. If the violator is not an individual, it is punishable by: (1) a fine of not more than $20,000, or (2) a fine equal to the amount of the improper contribution or expenditure (whichever is greater). In addition, if the Secretary of State determines that an MCFA violation occurred, the Secretary of State may impose a civil fine equal to triple the amount of the contribution or expenditure plus $1,000 per violation.
For additional information regarding the MCFA, consult Thrun Law Firm’s “Campaign Finance Act – Frequently Asked Questions” document or contact a Thrun election attorney.