
“We have to pass the bill so that you can find out what is in it,” Nancy Pelosi famously said in 2010, referring to the legislation that became Obamacare. She might not have meant this literally, but many people took it as proof of poor policymaking practice. Michigan voters find themselves in a similar situation with Proposal 2 on this year’s ballot.
Pelosi struck a chord, in part, because the Affordable Care Act was extraordinarily complicated. It spilled over 900 pages. Members of Congress were unlikely to have read it, let alone understood the whole thing. Pelosi may have said the quiet part out loud.
Proposal 2 is nowhere near as complex, but it is complicated in its own way. It hinges on vague and undefined terms that make it virtually impossible to understand what impact it will have.
For instance, the proposal creates a new form of regulated campaign speech called electioneering communications. Messages that reference a candidate within 100 days of an election would be subject to reporting requirements. It lists them: “any broadcast, cable or satellite communication, newspaper, magazine … or any other form of general public communication.”
What is a general public communication? The proposal does not say. The phrase does not exist anywhere in state law. Voters will have to decide on the proposal without knowing which messages are included in this definition and will become subject to law.
Anyone, including individuals, nonprofits, businesses, public entities and unions, “who makes electioneering communications aggregating $5,000” would have to report to the state within 10 days. Proposal 2 offers no details on what spending counts toward this aggregated $5,000.
The proposal would also expand the definition of “campaign expenditure.” Organizations that spend more than a certain amount on these expenditures must register with the state and meet reporting requirements and other mandates.
Any content that “promotes, supports, attacks, or opposes” a political candidate would be considered a campaign expenditure under Proposal 2. But these terms are not defined. Voters have no way of knowing what will count as an expenditure.
There is other uncertainty in the proposal. It says an electioneering communication must be “targeted to the relevant electorate.” Proposal 2 gives the Secretary of State the power to define that term at a later date, so voters will not know what it means until then.
Proposal 2 would require individuals, nonprofits, businesses, public entities and unions that make $5,000 in electioneering communications to disclose their financial contributions of more than $100. Everyone who refers to an identifiable candidate within 100 days of the election would need to report the names, addresses, employers and “any other information the Secretary of State determines is necessary” of these donors.
Proposal 2 adds new restrictions to political spending, which is a form of protected speech under the First Amendment. Portions of it will likely be challenged in court. Judges may end up deciding how these contested elements of the proposal are applied in Michigan.
In recent years, voters have been asked to approve significant changes to the state’s elections policies, including overhauling how political boundaries are drawn. Those complex changes led to some unexpected results. Proposal 2 is not as complicated, but its vagueness makes it just as difficult to decipher.
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