By Victoria Mullen
The last-minute revisions to Senate Bill 571–the so-called “gag order” bill–have public officials and lawmakers confused and concerned, and both Democrats and Republicans have already suggested it be repealed.
The troublemaker is Section 57, amended in Senate Bill 571, (click here to read the excerpt), which Gov. Rick Snyder signed into law (as PA 269) on Jan. 6. This law now drastically limits the ways local officials can inform voters about local ballot measures within 60 days of an election.
Sponsored by Senator Mike Kowall, R-15th District, with amendments offered by Rep. Lisa Posthumus Lyons, R-Alto, the campaign finance bill was approved on the final night of the Michigan Legislature’s session of 2015. The original 12-page bill on campaign finance had already been adopted by state senators, but in a late-night move, Lyons introduced a 53-page substitute bill. The bill came before representatives late at night when everyone’s focus was on another bill—a controversial request to eliminate straight-party voting. Some representatives have said they did not know what they were voting on.
Under the final version of the bill, a public body can’t use public funds or resources for “communication by means of radio, television, mass mailing, or prerecorded telephone message if that communication references a local ballot question” 60 days before the local election. This gag order will have a dramatic impact on school districts across the state, severely hampering efforts to educate voters on local tax initiatives such as millages, millage renewals or bonds.
The Michigan Municipal League, Michigan Association of Counties, Michigan Townships Association, Michigan Infrastructure & Transportation Association, Michigan Association of School Administrators, Michigan Association of School Boards and Michigan Association of Intermediate School Administrators are jointly seeking removal of language added to Section 57 in PA 269/SB 571. The organizations also are responding to Gov. Rick Snyder’s letter to lawmakers asking them to fix a section in the new law that drastically limits the ways local officials can inform voters about local ballot measures.
“Public Act 269 essentially gags local officials from giving voters important information on local ballot issues, and the only way to fix that is to repeal that new addition to the law,” said Dan Gilmartin, executive director and CEO of the Michigan Municipal League. “City, township, county, school and other officials agree that constituents need to have the facts to become informed voters on key matters that come before them, including charter changes, land transfers, millage questions and other issues required by state law to go to local elections. Repealing the provision is the only way to guarantee officials will be able to continue to give voters the facts.”
The Act has ramifications for publicly funded community television stations in Michigan, like WKTV, which serves the people of Wyoming and Kentwood. Under the new bill, WKTV can’t provide a graphic of ballot language on the bulletin board screen during election programming, and election programming can’t contain questions asking candidates how they stand on questions on the ballot. Public Act 269 requires editing responses from candidates who make any kind of statement about election questions. WKTV would also have to decline or edit programming from public access producers who submit programs about election ballot information. It also means that WKTV can’t put such information on our website or social media or print material. WKTV can’t even provide it verbatim.
State law already prohibits electioneering using public resources, making that section of the new law unnecessary and possibly unconstitutional. In recent days a number of legislators who voted for the bill admitted they were not aware of its scope and some have expressed regret at the limitations created by the local ballot measure section.
“Schools and local governments are concerned over language intended to stop the use of tax dollars to influence voters and advocate for or against a ballot measure,” said Lisa Posthumus Lyons. “This is already illegal, but with over two dozen complaints lodged and over a dozen found in violation since 2012, it’s obvious that law wasn’t sufficient.
“We’ve listened to the concerns and confusion, so we are working on legislation that clarifies the intent of Senate Bill 571,” Lyons said. “It’s fairly common for this to occur subsequent to passing a new law, and this issue is worthy of such follow-up. Let’s make no mistake that local officials will indeed be able to do their public duty by providing factual information to residents about ballot questions, but they will not be permitted to cross the line from informing residents to influencing voters at the expense of the taxpayer.”
Chris Hackbarth, director of state affairs for the Michigan Municipal League, pointed out in his testimony that the Michigan Department of State found only five valid complaints in a three-year period where local entities violated an already-existing state law forbidding them from advocating for a ballot issue. He added that the gag order section of PA 269 was a heavy-handed solution to a problem that barely exists.
“This bill is like taking a sledgehammer to an ant,” Hackbarth said. “That’s why we instead support bipartisan efforts to repeal the ‘gag order’ provision in Section 57 and lift the limitations on local officials trying to give voters important, basic and factual information on local ballot issues.”
When he signed the bill into law, the governor called for a fix and HB 5219 has been proposed. This bill would allow local officials to tell voters the date of an upcoming election and what the ballot language says. But school districts and local governments still would be banned from communicating with voters by giving them factual information about a ballot measure through radio, television, mass mailing or prerecorded telephone messages. Many of those testifying called for repealing Section 57.
“Voters are entitled to, and expect, their local officials to fully explain the ramifications of local ballot issues,” said Larry Merrill, executive director of the Michigan Townships Association. “Local public bodies are regularly required by law to defer to the wisdom of voters on many complex issues of public policy. It is imperative that voters be well-informed on the purpose, intent and consequences of the decisions they make when they vote on local ballot issues.
“This is a matter of extreme importance to the principle of local democracy,” Merrill added. “Contrary to the characterization of interest groups supporting these restrictions, local elected officials are neither ‘bureaucrats’ nor ‘lobbyists,’ but are persons who have been elected by these same voters to serve as trustees and fiduciaries of the public interest.”
Michigan Association of Counties Executive Director Timothy K. McGuire said, “This is about effective, transparent government. The law in its current form harms counties’ ability to be transparent with their residents.”
“Those entities with items on the March 8 ballot will be within that 60-day window on Jan. 8 and under the gag order called for in the current law,” said Don Wotruba, executive director of the Michigan Association of School Boards.
“Voters need access to accurate information on how the money would be spent and what the consequences will be for area children – including their own – if school districts win or lose those elections,” he added. “School and local officials already are banned from advocating for a tax increase or bond renewal. They shouldn’t be banned from giving voters the facts.”
With additional reporting by Michigan Township Association and Michigan Municipal League