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Once again, it looks like Maine voters will be asked to consider a referendum question that is most likely unconstitutional.
Last month, Maine’s secretary of state announced that petitioners had collected enough valid signatures to get an initiative on the ballot that would limit some campaign contributions.
The measure seeks to limit contributions to political action committees (PACs) that make independent expenditures. PACs are groups that collect political contributions and then parcel them out to candidates and campaigns.
The legislation will first go to the Legislature, where it is likely to be rejected. If that happens, the initiative will appear on the November ballot.
We are not fans of our current campaign funding system and believe that far too much money is spent trying to influence the outcomes of elections.
However, the U.S. Supreme Court has taken a dim view of restrictions on campaign spending. In a much criticized decision in 2010, the court held that campaign spending is essentially free speech and, therefore, cannot be restricted by the government.
So, restrictions like the ones sought in this proposed ballot question are likely to be deemed unconstitutional.
Several times in recent years, Maine voters have been asked to consider ballot initiatives that weren’t likely to pass constitutional muster.
For example, voters strongly supported a referendum question in 2021 to stop a transmission corridor through western Maine. The Maine Supreme Court ruled that question unconstitutional and Central Maine Power has resumed construction of the corridor.
Last year, voters overwhelmingly approved a referendum that would limit campaign spending by foreign government entities. It has already been challenged in court and, on Feb. 29, a federal judge paused enforcement of the new law, indicating that portions of it were likely unconstitutional. The state of Maine has now appealed that pause.
The Maine Supreme Court also invalidated part of the ranked-choice voting referendum approved by voters in 2016.
State law and policy allows 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 that allows the Maine 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 simply makes sense. 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.
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.
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.
