Proposal 2 would create a new type of regulated speech called “electioneering communications.” This would include “any form of general public communication” that occurs within 100 days of an election and references a candidate, even indirectly. Such a loose definition would expand the reach of Michigan’s campaign finance law by treating any content that simply references a candidate as a type of political communications.

The proposal is so broadly worded that it is impossible to tell what messages the drafters of Proposal 2 meant to make subject to its reporting requirements. But the intent is clearly to expand what qualifies as political speech and regulate more of it. What follows are examples of content that appear to meet this definition.

Electioneering communication includes “any broadcast, cable, or satellite communication.” The gubernatorial debates recently hosted by WOOD-TV on Oct. 6 and another run by WDIV on Oct. 15 seem to fit the description. These broadcasts occurred within 100 days of the election, reference candidates and are “targeted to the relevant electorate,” which is every Michigan voter when it comes to the governor’s race.

Proposal 2 says that anyone who spends $5,000 making electioneering communications must submit a report to the state within 10 days of reaching that threshold. There are no exemptions for media content. Failing to file the report would lead to criminal penalties.

Media outlets are exempt from making “campaign expenditures” under current law. But Proposal 2 keeps electioneering communications distinct from campaign expenditures, and the exemption would not carry over. So standard press coverage of elections and endorsements published by newspapers and other media outlets could qualify as regulated speech, subjecting news outlets to reporting requirements.

Electioneering communication includes any “mass mailing” or “telephone calls.” Voter surveys, which commonly use these techniques, might also qualify under Proposal 2’s broad definition.

The AARP conducted a survey in early August that referenced candidates. News outlets regularly run surveys and broadcast the results. Would spending $5,000 on a survey and then writing or talking about the related content require these organizations to file a report with the state?

Voter guides might get swept up as regulated campaign speech under Proposal 2. The Michigan League for Women Voters published one within 100 days of this year’s election, and it references dozens of candidates. The organization mailed 140,000 copies to libraries around the state. That might trigger the $5,000 threshold. These guides do not advocate voting for any particular candidate but would nevertheless be treated as regulated campaign speech under Proposal 2.

Trade groups and unions also typically produce voter guides. These are aimed at their members but are available to anyone. The Michigan Education Association recommended candidates in the last two editions of its magazine. The Michigan Building and Construction Trades Council did likewise in its periodical.

What types of content and information would be affected by Proposal 2? It’s hard to say. Its ambiguous language creates more questions than it provides answers. Anyone who publishes content that references a candidate within the 100-day window must consider whether it is worth subjecting themselves to the proposal’s legal obligations, however. As a result, voters might have less information available to them come election season.

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