At its core, the debate over Question 2 on Maine’s November ballot is about whether corporations owned or controlled by foreign governments have the same rights to political speech as companies here in the U.S. Question 2 asserts that they do not, and that foreign governments should be prohibited from electioneering in Maine referendums.
But the proposal is encountering resistance from news organizations that fear they will be enlisted to help enforce the ban on such advertising.
Polling has suggested that the concept behind Question 2 is broadly popular — so much so that the Legislature this year took the unusual step of trying to enact the citizens-initiated legislation directly. But Gov. Janet Mills, a Democrat who had vetoed a previous version of the proposal two years ago, vetoed it again in July.
And last week on Maine Public’s call-in program Maine Calling, she highlighted a little-publicized provision in Question 2 to justify her decision.
"It tries to regulate the activities of the press in very significant ways," Mills said. "It requires the media in Maine to become like a police office — it gives them a policing authority over who contributes to referenda campaigns. That's why the Maine Association of Broadcasters wrote me and urged me to veto the bill. That's why the Maine Press Association wrote me and urged me to veto the bill."
While supporters of the proposal dispute the governor's description of the so-called due diligence requirement for news organizations, it is true that the Maine Press Association and the Maine Association of Broadcasters, of which Maine Public is a member, asked her to veto the legislation in July.
Sig Schutz, an attorney who wrote to Mills on behalf of the MPA, says the provision attempts to regulate the press by requiring news outlets to find and block the political advertising Question 2 seeks to ban.
"From a First Amendment standpoint, the issue is that the legislation is directed at news outlets and forces them to become an arm of the government, to effectively police and censor spending by foreign influenced entities," he said.
The provision directs news organizations to adopt "reasonably designed" procedures to make sure that advertising purchased by entities controlled by foreign governments doesn't make its way onto television, radio, print or the internet.
Schutz has described this as a censorship regime that would impose unworkable — and unconstitutional — standards affecting not just advertising departments, but possibly newsrooms as well.
"We thought it was ambiguous. Certainly it would apply to advertising, paid political speech," he said. "It could apply to op-ed (opinion) pieces as well, potentially."
"The provisions in the measure really are about ensuring that foreign government influenced entities can't use news outlets to break the law," said Aaron McKean, an attorney for the Campaign Legal Center, a D.C. based organization that supports Question 2.
McKean says the due diligence requirements in Question 2 are not designed to regulate speech by news organizations, but rather to make sure that they're not duped by organizations seeking to get around the foreign government electioneering ban.
He compared the provision to a federal law that requires commercial broadcasters to gather and post all political advertising purchases on a website hosted by the Federal Communications Commission.
"Requiring due diligence policies for broadcasters falls right in line with this, particularly when it comes to foreign government spending in state elections," he said. "This is a key piece for making sure that … those foreign governments can't just use broadcasters to get around the law."
It's not entirely clear what Question 2's due diligence policies might look like in practice, or how they might be enforced. The legislation suggests enforcement might fall to the Maine Ethics Commission, which regulates state campaign finance laws.
But commission director Jonathan Wayne says the proposal is ambiguous on that point and that the agency would have to create rules clarifying the standards while also balancing First Amendment protections for the press if Question 2 passes.
"The Commission respects the First Amendment and any policy decisions that would have to be made down the road would be consistent with the First Amendment. And I think, in general, we're not looking to regulate broadcasters or news organizations," he said. "That's not what we see as our current role."
Wayne said there's already a state law that prohibits news organizations from running political advertising that doesn't disclose who paid for it.
He says in theory the Ethics Commission is allowed to assess fines against news organizations for running such ads.
"But in practice we never do," Wayne says. "We always hold the party who's responsible for the content of the ad to task if they have not included all the right information."
Wayne suggested that the Ethics Commission would strike a similar balance if Question 2 passes in November.
