Taking on MMA | A legal battle is brewing to stop improper electioneering in Maine
Under what circumstances can a publicly funded government entity enter a partisan political campaign to defeat a citizen-sponsored initiative? That question is raised in Mary Adams v. Maine Municipal Association, a federal lawsuit filed by The Maine Heritage Policy Center on behalf of Adams and three other plaintiffs now under way in Maine.
The Adams case scrutinizes actions of the Maine Municipal Association, a municipal league whose membership includes nearly all Maine municipalities. Funded largely by residents’ property taxes (member dues), MMA is part of a loose affiliation of similar groups in every state. MMA’s stated objective since 1953 has been to foster good local government.
Recently, however, MMA has aggressively used its large purse to fight a series of anti-tax initiatives in the most partisan way possible: by participating with other big government advocates in anti-initiative political action committees, and funding those PACs to the tune of $2 million to preserve Maine’s high tax burden.
The problem for MMA is that its participation, and its dollars, is public in character. Under Maine law, MMA is a legal “instrumentality” of municipal government and claims tax exemptions as a government entity. Because of MMA’s public character, the plaintiffs’ complaint alleges violation of federal and state constitutional rights due to MMA’s interference in constitutionally recognized initiatives, and improper expenditures by a government entity for political purposes.
While courts generally recognize government’s right to “speak” on issues, such speech should be confined to matters of information and public awareness. Courts have been skeptical of government at any level telling citizens how to vote or actively engineering initiative outcomes.
In one widely cited federal case (Mountain States Legal Foundation v. Denver School District), the court denounced the school district’s expenditures to oppose a state tax-reduction initiative as “a use of the power of publicly owned resources to propagandize against a proposal made and supported by a significant number of those who were taxed to pay for such resources.” According to the court, this “violates a basic precept of this nation’s democratic process.”
Even in lieu of an actual constitutional claim, courts have opposed such government attempts to engineer electoral outcomes. In another widely cited case (Citizens to Protect Public Funds v. Board of Education of Township of Parsippany-Troy Hills), New Jersey Supreme Court Justice William Brennan opined that public funds used to produce a flier urging a “yes” vote on a local school bond issue was an improper government expenditure for partisan political purposes.
Policy decisions aside, most government officials are smart enough to stay out of candidate elections. But many officials have an irresistible urge to “guide” voters during issue campaigns they think are misguided.
When the matter involves opposition to state “citizen’s initiatives,” however, the legal stakes are higher because such initiatives arise under a particular state’s constitution and involve core political speech issues recognized and validated by the Supreme Court.
Such is the case in Adams v. MMA. The initiatives opposed by MMA arise under Maine’s Constitution through a process that’s been recognized by Maine’s highest court as an “absolute right” of Maine people. And while most recorded cases of improper partisan expenditures involve just a few thousand dollars, MMA’s expenditures run into the millions, involving direct partisan opposition to a property tax cap in 2004, a Taxpayer Bill of Rights initiative in 2006, and TABOR and excise tax cut initiatives in 2009.
In each case, MMA joined with teachers, state employees and other big government groups to organize and fund PACs and manage the various campaigns. The campaigns waged by MMA were entirely partisan and propagandistic, complete with TV ads of police and firemen issuing dire warnings that houses would burn and police calls go unanswered were Maine’s punishing taxes ever reduced.
MMA made no effort to conceal its participation in this coordinated effort. In its August 2009 newsletter, The Maine Townsman, lobbyist Geoff Herman detailed MMA’s involvement in the campaigns: “Three of the four initiatives (on the 2009 ballot) directly impact local government, and MMA is actively involved in the effort to educate voters about the negative impacts of two: the Motor Vehicle Excise Tax initiative and TABOR II.” This behavior sets MMA’s actions apart from other, similar cases — the repeated participation in partisan campaigns and the amount of public money expended to beat down Maine’s long-suffering taxpayers.
In an age of rampant government encroachment, there’s an inexhaustible supply of publicly funded busybodies wanting to tell the great unwashed how to vote. The courts may be our only recourse to stop such illegal electioneering.
David Crocker is director of the Center for Constitutional Government at The Maine Heritage Policy Center and lead counsel for the plaintiffs in Mary Adams v. Maine Municipal Association. He can be reached at dcrocker@mainepolicy.org. Read more Public Engagement here.
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