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Do you want to 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?
In a country where people often can’t even seem to agree on the time of day, there are some things that remain almost universally popular. A strong majority of Americans think there is too much money in politics, for example. And people have been rightfully concerned about potential foreign influence in U.S. elections.
So when we look at Question 2 on the Nov. 7 Maine ballot, it is hard to take issue with the underlying premise of keeping foreign governments out of Maine elections, including referendum questions.
Beyond general principles, however, details and execution matter. This complicated question goes far beyond the fairly simple idea seemingly at its core. While that idea may be appealing, there are constitutional and functional complexities we hope Maine voters will consider beyond the words in this one-sentence question.
We are unconvinced that the proposal contained in Question 2 strikes the delicate balance needed with this issue and thus recommend a no vote.
Gov. Janet Mills was right when she vetoed the underlying legislation, LD 1610, after registering constitutional concerns about previous versions of this proposal. As she alluded to, this version is actually worse than earlier legislative attempts.
Federal law has for decades prohibited foreign nationals from making campaign contributions and other expenditures related to federal, state and local elections. A recent decision from the Federal Election Commission made clear that this federal prohibition does not apply to state referendum questions. Proponents of Question 2 are not wrong to see this as an existing loophole, but their attempt to close it is not the right approach.
This proposal goes beyond targeting foreign governments, in a very expansive way. The words “entities that they own, control, or influence” are very broad.
This isn’t just about preventing foreign governments, or even entities that they have a majority stake in, from engaging in all Maine elections. The underlying legislative text behind Question 2 defines foreign government-owned entities as those “in which a foreign government owns or controls more than 50 [percent] of its equity or voting shares.” While it includes this definition for government-owned entities, it imposes the same restrictions on “foreign government-influenced entities” with the low bar of 5 percent ownership from a foreign government or foreign government-owned entity.
A previous version of this proposal had a 10 percent threshold, and we thought even that was too low. Question 2 backers have gone in the wrong direction with an overly broad approach that goes well beyond restricting actual foreign governments from Maine elections.
Another way in which Question 2 went backward from earlier legislative efforts is the addition of a puzzling, ill-defined “due diligence” section requiring TV stations, newspapers and other outlets and platforms to basically police this proposed prohibition by taking steps to prevent the publication of election communications from foreign-influenced entities.
“It is one thing to burden direct political participants with campaign spending restrictions, but quite another to impose burdensome, vague, and costly compliance requirements that threaten neutral third-party news outlets with penalties and injunctions for publishing political speech,” attorney Sigmund Schutz wrote in a July letter on behalf of the Maine Press Association to Mills urging her to veto the underlying legislation. “The latter is plainly unconstitutional.”
The Bangor Daily News is a member of the Maine Press Association and Schutz has represented the paper in freedom of access cases.
“This legislation constitutes a prior restraint on speech because it purports to tell news outlets what they can and cannot publish,” Schutz also said in his July letter. “We are unaware of any legal precedent upholding this kind of prior restraint on publication of political speech by independent news outlets.”
We’re all for everyone being introspective about the current campaign finance system, the money involved, and our collective roles in it — including media organizations. But that reflection and needed reform must not come at the expense of the First Amendment. We recommend that Maine voters dig deeper into the details of Question 2, and hope they will reach the same conclusion we have: Question 2 is not the right solution to a real problem, and thus deserves a no vote.
