Last month the Battle Creek Enquirer’s editorial board published an editorial about a bill (now a law, Public Act 269 of 2015) to prevent municipalities and school districts from using tax dollars to promote tax increases in the 60 days before the election.

(A sample: “The Republicans in control of that once august body seem to draw from a bottomless well of contempt for the democratic process and the people they are supposed to serve.”)

The editors claimed: “The bill’s backers say it’s aimed at preventing government entities from using taxpayer dollars to influence voters. That's pretense. Such activity is already illegal, and where those abuses occur (rare at best), they are easily and effectively handled through existing enforcement mechanisms.”

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But this statement ignored evidence that locals and school districts were indeed skirting the law by using taxpayer resources to persuade voters to support their tax hike initiatives, including examples in the Battle Creek newspaper’s own circulation area.

In one case last fall, the Hastings Area School System posted a four-minute video on its website. It featured an elementary schoolchild who says, “My school is really nice. And cool.” The video then cut to a Hastings school employee saying, “But it’s too cool or too warm," followed by an assertion that the ventilation system is outdated.

In the next scene, a middle school teacher tells a class that the day’s lesson would be about World War I. The lesson opens with the teacher telling students the war was 100 years ago and that, “You are sitting in a building that was here in the early 1900s,” followed by this individual looking pointedly into the camera.

The rest of the video shows employees complaining about buildings that are outdated, intermixed with children saying they hope the lack of upgraded facilities doesn’t harm their future careers and lamenting that they can’t do their activities in a “proper place.”

Nowhere did the video mention how much a proposed property tax increase would take from homeowners.

Importantly, the video did not use the words “Vote Yes” for the millage hike. Those words would have transformed this clear example of government electioneering into express advocacy under the Michigan Secretary of State’s interpretation of the previous law, and thus prohibited.

MIRS News recently quoted Chris Thomas, director of the Secretary of State’s elections bureau, saying that such electioneering was the functional equivalent of express advocacy.

Examples are prevalent as elections near. Another from last fall involved Rochester Hills mailing fliers that implied residents could die or their house could burn down if a public safety millage was not approved.

Municipal and public school officials (and their advocates) dispute the need for the new law, with most claiming that the previous restriction on express advocacy alone was sufficient to prevent abuse. Yet as far back as 2011, Michigan Capitol Confidential reported on schools and local governments sending tax-funded fliers and more that encouraged voters to pass property tax increase and other proposals.

The Michigan Municipal League has reported that 18 municipalities filed a lawsuit in a federal court in Detroit, characterizing the new law as a gag order and claiming that it is unconstitutional.

“It’s an absolute gag order preventing public officials from addressing their constituents and residents of about matters of local concern,” said Scott Eldridge, an attorney with Miller, Canfield, Paddock and Stone who has filed the lawsuit, in a press release. “It’s so overly broad and vague that it penalizes public officials with a crime if they speak in even an objectively neutral tone about ballot issues.”

After the law was passed, Gov. Rick Snyder requested in a bill-signing message that it be tweaked. State Rep. Lisa Lyons, R-Alto, has introduced a bill to do so.

According to MichiganVotes.org, her House Bill 5219 would “create exceptions for communications containing the actual ballot question language and election date, and also permit discussions of the measure during broadcast meetings of a public body if ‘both proponents and opponents have an equal opportunity to discuss’ it.”

The bill has been sent to committee. Other recently introduced bills would gut or repeal the new electioneering restrictions.

“Many point out that advocacy — influencing voters — with taxpayer dollars was already illegal and that they operate within the law,” Lyons said about her bill in an email. “The problem is that while these communications didn't violate the letter of the law by saying phrases like 'vote yes, vote no, support, oppose,' they often violated the spirit of the law by using other words and phrases that attempt to influence voters, whether intentional or not. This needed to be addressed.”

Lyons, who is chair of the House Elections Committee, continued: “It most certainly is not a ‘gag order.’ It only applies to radio and television ads, robocalls, and mass mailing through the postal service. Schools and local governments can still send emails, post information on websites, and even knock on voters' doors to share information about ballot questions. It doesn't take away anybody's free speech or eliminate the ability to answer questions or talk about issues during public meetings. It simply ensures that tax dollars will not be used to influence voters on ballot proposals.”


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