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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5695 April 28, 1980 ELECTIONS: Corporate contributions to influence vote on ballot proposal INSURANCE: Contributions by insurance company to influence outcome of ballot proposal A provision in the Insurance Code of 1956 which prohibits contributions by insurers which would influence or affect the vote on a ballot question is unconstitutional. Honorable John M. Engler State Senator The Capitol Lansing, Michigan You have requested my opinion on the constitutionality of the Insurance Code of 1956, 1956 PA 218, Sec. 2074; MCLA 500.2074; MSA 24.12074, which prohibits political contributions which would influence or affect the vote on a ballot proposal by insurers doing business in the State of Michigan. Specifically, 1956 PA 218, Sec. 2074, supra, provides, in part, that: '(1) No insurer doing business in this state shall, directly or indirectly, pay or use, or offer, consent or agree to pay or use any money or property for or in aid of any political parties, committee or organization, or for or in aid of any corporation, joint stock or other association organized or maintained for political purposes, or for or in aid of any candidate for political office or for nomination for such office, or for the purpose of influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of such insurer, or for any political pupose, whatsoever, or for the reimbursement or indemnification of any person for money or property so used, . . .' (emphasis added) Additionally, Sec. 106 of the Insurance Code of 1956, supra, defines an insurer as: '. . . any individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyds organization, fraternal benefit society, and any other legal entity, engaged or attempting to engage in the business of making insurance or surety contracts.' The Michigan Supreme court in Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465; 242 NW2d 3 (1976), while considering the constitutionality of Sec. 95 of the then Political Reform Act, 1975 PA 227, Sec. 95; MCLA 169.95; MSA 4.1701(95) which prohibited corporate contributions or expenditures for any political purpose, concluded that: '. . . corporate contributions or expenditures for the purpose of influencing the nomination or election of a candidate may be constitutionally prohibited in order to preserve the integrity of the electoral process. However, we would view the prohibition of corporate contributions or expenditures for the purpose of influencing the qualification, passage, or defeat of a ballot question as an unconstitutional abridgement of freedom of speech and press as guaranteed by [Const 1963] art 1, Sec. 5.' 396 Mich 465, 491 (emphasis added) The Court went on to hold that: '. . . insofar as Sec. 95 interferes with the right of the public to hear divergent views of public importance by prohibiting corporations from making contributions or expenditures for the purpose of communicating its opinion concerning ballot questions, it is violative of Const 1963, art 1, Sec. 5. . . .' 396 Mich 465, 495 In addition, the United States Supreme Court in First National Bank of Boston v Bellotti, 435 US 765, 777; 55 L Ed 2d 707; 98 S Ct 1407, reh den, 438 US 907; 57 L Ed 2d 1150; 98 S Ct 3126 (1978), held a comparable provision of Massachusetts law prohibiting corporations from making political contributions, except as to ballot proposals which materially affected the property, business or assets of the corporation, to be unconstitutional as a denial of the First Amendment rights of the corporation. The Court, quoting from Mills v Alabama, 384 US 214, 218; 16 L Ed 2d 484; 86 S Ct 1434 (1966) held that: '. . . 'there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs." Thus, legal entities which are encompassed within the definition of insurer in 1956 PA 218, Sec. 106, supra, have the same protected right to freedom of speech as do corporations. OAG, 1975-1976, No 5123, p 629, 633 (September 30, 1976), considered whether Sec. 919 of the Michigan Election Law, 1954 PA 116, Sec. 919; MCLA 168.919; MSA 6.1919 (a1) which prohibited a corporation from making political contributions of any kind, was constitutional. After reviewing the principles established in Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), supra, and Schwartz v Romnes, 495 F2d 844 (CA 2, 1974), the Attorney General concluded that: '. . . any attempt to enforce 1954 PA 116, Sec. 919, supra, where the sole basis of prosecution is a campaign contribution made in support of or in opposition to a ballot question, would violate the freedoms of expression and assembly guaranteed by Const 1963, art 1, Secs. 1, 2, 3 and 5.' Furthermore, the present Campaign Finance Act, 1976 PA 388, Secs. 54, 55; MCLA 169.254, MCLA 169.255; MSA 4.1703(54), MSA 4.1703(55) permits a corporation or joint stock company to make a contribution when the purpose is 'for the qualification, passage, or defeat of a ballot question,' 1976 PA 388, supra, Sec. 54, and to establish separate, segregated funds which may be solicited from very specific sources and used for very specific political purposes. In OAG, 1977-1978, No 5279, p ___ (March 22, 1978), OAG, 1977-1978, No 5344, p ___ (July 20, 1978) and OAG, 1977-1978, No 5422, p ___ (December 29, 1978) it was held that the extent of corporate investment in the financing of elections is limited to the manner and method authorized in Secs. 54 and 55, supra. Thus, while the Insurance Code of 1956, Sec. 2074, supra, does permit insurers to make political contributions in narrowly defined instances, the limitation contained therein relating to ballot questions is not in accord with the Michigan Supreme Court's decision in Advisory Opinion on the Constitutionality of 1975 PA 227, (Questions 2-10), supra, the United States Supreme Court's decision in First National Bank of Boston v Bellotti, supra, and recent opinions of this office. Therefore, it is my opinion that the provision in 1956 PA 218, Sec. 2074, supra, which prohibits contributions by insurers which would influence or affect the vote on ballot questions is unconstitutional. Whenever a portion of a statute is determined to be unconstitutional, the void provision may be severed without invalidating the entire statute. This may be accomplished as long as the statute can be enforced without the void provision, and it is clear that the Legislature would have enacted the statute without the severed portion. OAG, 1979-1980, No 5485, p ___ (April 26, 1979); OAG 1975-1976, No 4870, p 101 (June 13, 1975). Since 1956 PA 218, Sec. 2074, supra, provides for other limitations on political activities by insurers doing business in the State of Michigan, it is clear that the section would have been enacted without the invalid provision. Therefore, the unconstitutional portion of Sec. 2074 may be severed without invalidating the entire section. It is, therefore, my opinion that the underscored portion of 1956 PA 218, Sec. 2074, supra, quoted above, is unconstitutional. Frank J. Kelley Attorney General (a1.)
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