The BDN Editorial Board operates independently from the newsroom, and does not set policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Like the backers of Question 2 on November’s ballot, we have serious concerns about foreign influence of our elections and the seemingly endless escalation of campaign spending in the U.S. However, we recognize that limits on these activities must comport with the U.S. Constitution and its protections of free speech.
This is especially true as the U.S. Supreme Court has broadly defined speech to include campaign spending.
Before voters went to the polls last month, we — and others — raised concerns about the constitutionality of Question 2, which would “ban foreign governments and entities that they own, control, or influence from making campaign contributions or financing communications for or against candidates or ballot questions.” Beyond concerns that the measure would restrict the free speech rights of these entities, we also objected to an ill-defined “due diligence” section. The provision requires TV stations, newspapers and other outlets and platforms to basically police the proposed prohibition by taking steps to prevent the publication of election communications from foreign-influenced entities about candidates and ballot questions.
“We are unaware of any legal precedent upholding this kind of prior restraint on publication of political speech by independent news outlets,” media lawyer Sig Schutz said in a July letter on behalf of the Maine Press Association. The Bangor Daily News is a member of the Maine Press Association and Schutz has represented the paper in freedom of access cases.
Voters overwhelmingly supported Question 2, with it gaining 86 percent of the vote on Nov. 7.
Questions of constitutionality, however, don’t hinge on the popularity of a ballot question. Trying to get those questions answered before the new law goes into effect — as several groups have done — makes sense.
Question 2 was on the ballot at the same time as a measure that sought a takeover of Central Maine Power and Versant to create a consumer-owned utility. That question failed.
Both CMP and Versant have some foreign government ownership and would likely be subject to the restrictions in Question 2, which include “foreign-government influenced entities.”
The utilities, along with the Maine Association of Broadcasters and the Maine Press Association, filed lawsuits last week challenging the constitutionality of the new law, and asking for an injunction to stop it from going into effect while the legal proceedings play out. A group of current and former lawmakers filed suit the next day. Schutz represents the media groups in these lawsuits.
The media request of an injunction narrows in on the new and unprecedented standards that the law would place on them to review and reject “communications” from the prohibited entities, arguing that these requirements are “not a burden the First Amendment permits the State to impose on the press.”
Rather than creating a system to investigate and track such communications to screen for foreign government influence, media outlets may likely just refuse these communications altogether. That, in the parlance of media law, could constitute a prior restrain t on the media, which the U.S. Supreme Court has found to be unconstitutional.
We likely won’t have a full decision on the constitutionality of Question 2 for some time, perhaps years. This is problematic.
As we’ve written before, not answering constitutional questions upfront just delays, rather than avoids, court challenges that may invalidate a referendum vote. It can also lead to frustration and distrust among voters who support a ballot question that is later deemed unconstitutional.
This has happened with a ballot question to stop a CMP transmission corridor and, partially, with ranked-choice voting.
State law and policy allow questions to appear on the ballot even though they may not later pass constitutional muster.
This is a practice that lawmakers should strongly reconsider. Adding a provision to state law, for example, that allows the secretary of state, after consultation with the state attorney general, to reject initiative petitions that don’t comply with the U.S. or Maine constitutions could help. A process is already in place that allows petitioners to sue if they believe the secretary of state wrongly rejected a petition. This would put the court challenges on constitutional grounds up front, rather than after a ballot measure had been voted on.
A bill to add a constitutionality assessment as part of the secretary of state’s referendum review process would be timely.
It would be much better if the constitutionality of ballot questions could be determined — or at least significantly clarified — before they are put to voters. Such a process could save Maine people, companies, regulators and others a lot of headaches, money, and frustration.
