The Center for Competitive Politics (CCP) submitted comments responding to the State Bar of Michigan’s (SBM) declaratory ruling request regarding issue advertisements about elected judges, pointing out that the request would place severe burdens on Michiganders’ First Amendment rights.

“What is most disappointing about the request is that the SBM asks [the Secretary of State] to ignore not only the meaning of state law, but also the First Amendment and forty years of Supreme Court precedent,” wrote CCP President David Keating in his comments.

The request asks “[M]ust all communications referring to judicial candidates be considered ‘expenditures’ for purposes of the MCFA [Michigan Campaign Finance Act], and thus reportable to the Secretary of State, regardless of whether such payments entail express advocacy or its functional equivalent?”

Keating responded “The answer is, of course, no. The presence of the word ‘regardless’ directly contradicts Mich. Comp. Laws § 169.206(2)(b), which specifically exempts any payments that are not express advocacy or its functional equivalent from the definition of ‘expenditure.’”

The request further asks whether it is possible for a communication to reference a judicial candidate without calling for that candidate’s election or defeat.

“Is all speech referring to a candidate automatically political and therefore regulated?” responds Keating in the reply. “Again, the answer is an unequivocal ‘no.’ This is a foundational principle of law that the SBM Request ignores. United States Supreme Court precedent, including the cases cited by the SBM, recognizes the marked difference between speech about candidates and speech about issues.”