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. 6895 April 8, 1996 ELECTIONS: Distribution of anonymous campaign material The disclosure requirement contained in section 47(1) of the Michigan Campaign Finance Act violates the First Amendment to the Constitution of the United States as applied to either a campaign "committee" or a person making an "independent expenditure" and is, accordingly, void and unenforceable in its entirety. Honorable Candice S. Miller Secretary of State Treasury Building Lansing, MI 48918 You have asked whether, in light of the recent decision of the United States Supreme Court in McIntyre v Ohio Elections Comm, ____ US ____; 115 S Ct 1511; 131 L Ed 2d 426 (1995), the disclosure requirement contained in section 47 (1) of the Michigan Campaign Finance Act (MCFA) (1) violates the First Amendment to the Constitution of the United States as applied to either a campaign "committee" or a person making an "independent expenditure" under the MCFA. Section 47 (1) of the MCFA provides that: A billboard, placard, poster, pamphlet or other printed matter having reference to an election, a candidate, or ballot question, shall bear upon it the name and address of the person paying for the matter. [Emphasis added.] A knowing violation of this section is a misdemeanor punishable by a fine or by imprisonment, or both, under section 47(4) of the MCFA. In section 3(4) of the MCFA the Legislature has defined the term "committee," for the purposes of that act, as "a person who receives contributions or makes expenditures for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate, or the qualification, passage, or defeat of a ballot question," subject to certain monetary limits. The term "independent expenditure" is defined by section 9(2) of the MCFA as an expenditure made by a person without direction or control by another person when it is not made to a "committee." Finally, in section 11(1) the Legislature has defined the term "person" for purposes of MCFA to include both individuals and committees. Thus, both a "committee" and a person making an "independent expenditure" come within the intended sweep of section 47(1) of MCFA. In McIntyre v Ohio Elections Comm, supra, the United States Supreme Court reviewed the constitutionality of a fine imposed by the Ohio Elections Commission upon Mrs. Margaret McIntyre, a private citizen, for anonymously distributing leaflets opposing a school tax levy in violation of the Ohio Elections Code. There was no claim that the leaflets contained any false, misleading or libelous material. Rather, the sole complaint was that at least some of the leaflets failed to identify Mrs. McIntyre as the author of the material. The Ohio Elections Commission found this omission to be a violation of Ohio Rev Code Ann s 3599.09(A) (1988), which prohibited the publishing of information designed to promote or oppose an election candidate or ballot issue unless the writing identified the name and address of the person or organization responsible for the writing. This finding was ultimately upheld on appeal by the Ohio Supreme Court. The United States Supreme Court reversed, holding that the Ohio statute violated the constitutional right of free speech guaranteed by the First Amendment to the United States Constitution. The Court began its analysis with the premise that "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." 131 L Ed 2d at 436. The Ohio statute, therefore, by attempting to require the inclusion of the author's identity in campaign literature, did more than merely attempt to control the mechanics of the electoral process. The statute, the Court concluded, constituted "a direct regulation of the content of speech." 131 L Ed 2d at 439. Further, the Court observed, the category of speech regulated by the Ohio statute was political speech, the very category of speech that "occupies the core of the protection afforded by the First Amendment." Id. This, the Court concluded, requires application of an exceedingly strict standard of review: When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. 131 L Ed 2d at 440. Attempting to meet this standard, Ohio advanced two state interests which it argued were sufficiently compelling to sustain the statute: (1) providing the electorate with relevant information and (2) preventing fraudulent and libelous statements. The Court quickly rejected the first of these interests, stating: Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document's content that the author is free to include or exclude. Id. at 440. While the Court found the state's interest in preventing fraud and libel to be more compelling, the Court ultimately found that interest to be insufficient as well. Initially, the Court acknowledged that "[t]he state interest in preventing fraud and libel stands on a different footing" and that "this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large." Id. at 441. The Court concluded, however, that Ohio's prohibition of anonymous campaign literature was not the state's only nor even its principal weapon in combating fraud and libel and, more importantly, that this prohibition was both overly expansive and ineffective: As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources. It applies not only to elections of public officers, but also to ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance. It applies no matter what the character or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the author's name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the election code. Nor has the State explained why it can more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here. [Footnotes omitted.] 131 L Ed 2d at 442-443 Finally, the Court rejected Ohio's argument that its statute requiring disclosure of identity was essentially similar to the campaign finance disclosures previously approved by the Court in First National Bank of Boston v Bellotti, 435 US 765; 98 S Ct 1407; 55 L Ed 2d 707 (1978) and Buckley v Valeo, 424 US 1; 96 S Ct 612; 46 L Ed 2d 659 (1976), stating that, "[r]equired disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case." 131 L Ed 2d at 445. The Court went on to state: Not only is the Ohio statute's infringement on speech more intrusive than the Buckley disclosure requirement, but it rests on different and less powerful state interests. The Federal Election Campaign Act of 1971, at issue in Buckley regulates only candidate elections, not referenda or other issue-based ballot measures .... In candidate elections, the government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. Disclosure of expenditures lessens the risk that individual will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office. [Citation omitted.] 131 L Ed 2d at 445 In light of this analysis, the Court concluded that the Ohio statute was unconstitutional. Describing the statute as a "blunderbuss approach," the Court observed: The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse .... The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. [Citation omitted.] Id. at 446 In Louisiana v Moses, 655 So 2d 779, 785 (La Ct App, 1995), the Louisiana Court of Appeals reached a similar result, invalidating a Louisiana statute which prohibited all anonymous campaign literature regardless of whether the information contained in the literature was true or false. Like the Ohio statute invalidated in McIntyre, the Louisiana statute applied to both individuals and committees and governed literature affecting ballot propositions as well as candidate elections. Citing McIntyre, the Louisiana Court held that "the right to distribute anonymous campaign literature is clearly protected by the First Amendment to the U.S. Constitution as interpreted by the U.S. Supreme Court and by article 1, Section 5 and 7 of the Louisiana Constitution" and that the statute, accordingly, was unconstitutional. It is true that the Supreme Court in McIntyre was careful to leave open at least the possibility that a state's interest in protecting the integrity of its elections "might justify a more limited identification requirement" than that presented by the Ohio statute. 131 L Ed 2d at 443. (2) See also, concurring opinion of Ginsburg, J, 131 L Ed 2d at 447. It is also true that the courts will, when possible, construe a statute to avoid unconstitutionality, or pare away the unconstitutional portions of the statute to leave the remaining constitutional parts intact. See Los Angeles Bd of Airport Commrs v Jews for Jesus, 482 US 569, 575; 107 S Ct 2568; 96 L Ed 2d 500 (1987). Unfortunately, the language of the MCFA, section 47(1), is not susceptible to a saving construction nor can its unconstitutional elements be effectively excised; the language used by the Legislature in that section of the MCFA is both sweeping and explicit and, moreover, is functionally indistinguishable from both the Ohio statute invalidated in McIntyre and the Louisiana statute invalidated in Moses. It is my opinion, therefore, that the disclosure requirement contained in section 47(1) of the Michigan Campaign Finance Act violates the First Amendment to the Constitution of the United States as applied to either a campaign "committee" or a person making an "independent expenditure" and is, accordingly, void and unenforceable in its entirety. Frank J. Kelley Attorney General (1)
(2)
The language utilized by the Court at 131 L Ed 2d 442-443 seems to suggest at least three factors that may affect the validity of a narrowly drawn statute: (1) whether it is limited to the activities of "candidates and their organized supporters" as opposed to individual electors; (2) whether it is limited to candidate elections and not ballot issues; and (3) whether it is limited to "leaflets distributed on the eve of an election, when the opportunity for reply is limited" as opposed to "those distributed months in advance." [Footnote omitted.] The Court's opinion, however, provides virtually no guidance as to precisely how these factors might be applied and with what result.