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How deep will Lyons go in ‘fixing’ SB 571?

January 26, 2016

Courtesy of MIRS News Service

Local governments and school districts could mail out copies of the 100-word ballot language that will appear before voters 60 days prior to a local election, but outside of giving the date of the election could do nothing more, under legislation debated in a legislative committee this morning. 

Rep. Lisa LYONS (R-Alto) said she introduced HB 5219 to clear a provision in the controversial P.A. 269, signed two weeks ago, which local governments and school districts interpreted as a “gag order” on their elected officials from talking about public ballot proposals (See  “Snyder Signs SB 0571; Wants Changes,” 1/6/16). 

The new bill makes it clear that locally elected leaders can discuss local ballot questions during a public meeting. They can answer constituents’ questions on the impact of a local ballot proposal. 

But they still cannot use public money for a radio spot, TV ad, mass mailing or robo-call 60 days before an election at the risk of a $20,000 fine. 

That presented a problem to Forest Hills Public School Superintendent Dan BEHM, who sends out periodic newsletters designed to answer the types of questions he gets at the grocery store or when he’s out mowing his lawn. 

Under HB 5219, the mailers can’t be sent to his 40,000 impacted residents 60 days before an election. The problem is taxpayers want to talk about what they are voting on in a language they can understand, which can’t always happen with 100-word ballot language, Behm told the House Elections Committee. They need to be reminded or educated on the basics of school finance, topics they don’t often deal with. 

“What’s a non-homestead? What’s a mill? What’s 18 of them? We simply want to provide information,” Behm said. “We’re not here to violate the law. We are there to inform them.” 

Lyons didn’t take a vote on HB 5219 today, telling MIRS she’d like to bring up the bill next week for a vote considering schools and local governments are within a 60-day window for the March 8 local election. 

However, she hasn’t closed the door to allowing locals to provide information on local ballot questions. The problem is how that can be done without locals taking advantage of an opportunity to subtly advocate for a ballot measure using taxpayer money. 

Chris HACKBARTH from the Michigan Municipal League noted that in the last three years, the Secretary of State has only found five instances where a local government crossed the line into advocating for a local ballot question using taxpayer money. More violations have been levied against individual candidates. 

But the problem isn’t about cracking down on people who currently violate the state law against directly advocating for a ballot question, said attorney Eric DOSTER, a main driver behind the scenes for what had been SB 0571 earlier this year. 

Doster gave the House Elections Committee examples of locals using such language in taxpayer-funded communications as “Keep positive success moving forward,” which isn’t direct advocacy. 

The Secretary of State and Elections Director Chris THOMAS is staying publicly neutral on HB 5219, as they did on SB 0571. 

Thomas conceded that he doesn’t believe there is a widespread problem of local governments engaging in express advocacy, but that isn’t the issue HB 5219 is trying to deal with, he said. 

Lyons’ new bill deals with what he calls “electioneering,” which doesn’t overtly ask for support of opposition, but leaves the reader or viewer with no other interpretation than one side of an issue. Thomas called this the “functional equivalent” of expressed advocacy, which currently is not in his purview. 

Instead of trying to fine-tune the word-smithing over what is advocacy — expressed or functional — SB 0571 and HB 5219 are painting a bright line banning all communications. The argument about advocacy never gets off the ground. It makes Thomas’ job at the Secretary of State easier in terms of refereeing complaints. 

However, from a policy standpoint, Thomas said he’s interested in how they do this type of restriction for local governments on ballot questions, but not individual candidates, who already have the advantage of their own political action committees they can use for election purposes. 

From what Thomas is seeing, the main objection of those advocating for these reforms is not to necessarily ban factional information for local governments — “It raises this many mills. If you have a property at this value, it will have this impact on you. We’ll buy X number of school buses with it.” 

It’s the adjectives and adverbs that come with these types of communications, “It will provide quality education. It’s going to create a better education for our kids.” 

At this point, the battle of HB 5921 is whether Lyons can find the language to allow for the former while specifically banning the latter . . . and even she concedes that will not be an easy task. 

The alternative to not drilling down to a deeper level is moving HB 5921 out of committee as it stands today, and she said she has the votes in her committee to do that. It also appears to address the concerns Gov. Rick SNYDER made about SB 571, making a gubernatorial signing likely. 

Does compromise language exist at a time in which local governments and school districts are calling for a full repeal of the so-called “gag order” language of SB 0571 while putting together a federal court challenge? 

That’s the question of the hour. 

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