The United States District Court for the Eastern District of Michigan temporarily enjoined a recent amendment to Michigan’s Campaign Finance Act (a/k/a the “gag-order”) that purports to prohibit school districts, among others, from communicating with residents about ballot questions within 60 days of an election. Taylor, et al. v Johnson, et al., Case No. 16-10256 (Temporary Restraining Order, February 5, 2016). Specifically, the Court entered a temporary restraining order enjoining the amendment because, in the Court’s opinion, it was unconstitutionally vague. The Court reasoned that, although the “gag-order” purported to prohibit almost all communications about a ballot question within 60 days of an election, Governor Snyder’s signing letter explained the “new language … only applie[d] when local governmental entities use taxpayer resources … [for] … communications that are plain attempts to influence voters ….” But this was no more than the law prohibited before it was amended. Accordingly, the Court ruled that public officials were not required to risk criminal prosecution or civil liability to find out if the Governor’s interpretation was correct.
The temporary restraining order is not the end the case. It is, however, a step in the right direction and a rebuke to those who attempted to slip such a radical amendment into the law with proper consideration or debate. As Judge O’Meara’s opinion observed, “… there was no substantive debate about this provision and … some lawmakers later admitted that they did not realize that this provision, a last-minute addition, was part of the bill.” Id., p 2. We express our thanks to the many educational organization, school boards and superintendents who helped finance and undertake this necessary constitutional challenge to an ill-considered attempt to prevent school districts and other governmental entities from providing citizens with factual and neutral information about pending ballot issues.