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Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.
I don’t often find myself in agreement with Gov. Janet Mills, but I did unexpectedly end up there when I saw that she had vetoed the bill to ban foreign campaign spending on Maine referendum campaigns last week.
On its surface, the proposal, LD 1610, sounds like a slam-dunk good idea. Political decisions, which oftentimes take the form of referendums, are vitally important to Maine and should be free from interference from outsiders, particularly non-Americans. Foreign citizens and foreign corporations aren’t from here, and so deserve no say over what we choose to do in Maine.
That’s what the proponents of the proposal argue, anyway. It sounds good of course, and it has a powerful populist appeal, particularly in Maine where we really do dislike “people from away.” Making things even more tilted, the proposal is unquestionably aimed at Central Maine Power, perhaps the most politically unpopular entity in Maine.
All of this is, of course, likely why the measure passed in the Legislature. Proposals like this are catnip to politicians seeking to ingratiate themselves with voters, and there is very little downside to supporting the proposal.
But overwhelming popularity does not always, or even usually, imply “rightness” on an issue, particularly on the issue of speech. Indeed, the very reason America chose to enshrine certain civil rights protections like speech into its Constitution was to guard against popularly fueled political masses trampling the rights of others.
There are three operative questions we should ask ourselves as we judge any kind of political proposal like this. Is it constitutionally permissible? If so, will it achieve the outcome we want? If so, is it morally and ethically right?
I think this proposal fails all three of those criteria, and so Mills was right to veto it.
The governor dealt with the first of these questions directly in her veto letter. She first noted that the proposed law would seek to restrict who may participate in political debate, before noting that the First Amendment provides strong protections that would likely invalidate those restrictions. She cited Eu v. San Francisco County Democratic Central Committee as evidence that the court has rejected restrictions on speech in political campaigns, “other than to prevent quid pro quo style corruption.” She also challenged the constitutional arguments made by proponents in citing Bluman v. FEC as invalid.
Foreign nationals giving money to candidates is already illegal in Maine, and that law passes constitutional muster because there is a potential that such contributions could create a quid pro quo relationship with a lawmaker and thus introduce corruption. By contrast, in a referendum campaign there is no lawmaker to bribe or “own” with direct financial contributions, as any spending goes directly to funding speech in the form of television, radio, newspaper and internet advertisements.
As to the second question of whether or not it will achieve its ends successfully, you should be very doubtful of that. As somebody who has worked in the world of politics for two decades, I can tell you how easy it is for talented operatives and well-funded groups to find pathways for money to travel. Direct contributions from foreign-owned corporations are banned? No problem, have the corporation donate money to an intermediary (or two or three) that will ultimately get around disclosure and mask the source of money being spent with no consequences.
Put another way, money will be spent by interested parties no matter what, the only question is one of transparency.
To the third question, you do have to ask yourself some important questions. If a company is partly or fully owned overseas, but it has massive amounts of property, equipment, employees and capital in the state of Maine, is it even remotely fair that we would prevent them from being able to weigh in on a question that would impact not only them, but all of those Maine-based assets they have?
And beyond that, is our definition of “foreign” even sensible? In her veto letter, Mills said no. “This bill would also apply to Maine-based businesses that have, for example, investment from a public pension fund of a foreign city or province that has no interest in influencing a referendum,” she wrote. Freezing out an entity like that would be morally dubious.
Beyond all those concerns, though, think for a moment about what it is proponents are afraid of. They are restricting speech, trying to stop others from being able to speak to you, apparently terrified that you are too stupid to sort through the noise.
Pay them no mind. Referendums are public forums of ideas and arguments, and we should not particularly care what the source of speech is. Rather, we should judge arguments based entirely on their merits, and nothing else.
