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Once again. Maine voters strongly backed ballot questions only to have a court rule them unconstitutional. Twice this month, a federal appeals court ruled that Maine ballot measures that sought to limit campaign spending were unconstitutional.
First it was 2023’s question seeking to ban campaign spending by foreign-owned entities. The measure was supported by 86 percent of voters that year. Earlier this month, a federal court ruled that several of the referendum’s provisions likely violated the Constitution. It sent the case back to a lower court for a final ruling.
Last week, the same court found that restrictions on contributions to political action committees known as Super PACS, supported by 74 percent of voters last year, also violated the Constitution. Backers of the ballot question hope to get the issue before the U.S. Supreme Court.
We’ve got to break this cycle.
We have long argued that Maine should develop a system to assess the constitutionality of citizen initiatives and referendums before they appear on the ballot. Ideas that are popular can still be unconstitutional. Allowing plainly unconstitutional questions to go before voters without some sort of formal constitutional review ahead of time is a recipe not only for frustration and legal action, but diminished voter trust.
As we wrote a couple years ago, “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.” Such a process should also include an expedited judicial review, so that the decision making is not left to one or two state officials.
That’s still true.
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, it is no surprise that restrictions like the ones sought in recent ballot questions have been deemed unconstitutional.
The 2023 law sought to prevent foreign government-influenced entities, defined as companies with 5 percent or more foreign government ownership, from donating to state and local ballot measures. It also requires media outlets to establish policies to stop campaign ads from those prohibited entities.
Backers of last year’s ballot measure to restrict campaign contributions clearly said one of their goals was to get a case before the U.S. Supreme Court to challenge the 2010 Citizens United decision. While challenging that decision is a worthy goal, we warned that Maine voters needed to understand that the question was much more likely to further court challenges than to limit campaign spending.
A similar ballot question was turned away by the state attorney general’s office in Massachusetts in 2022 because of concerns about its constitutionality.
Yet in Maine 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 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.
