Civil Rights: Rule Prohibiting Use Of Candidate's Name Or Likeliness In Communications By Corporation 45 Days Prior To An Election, Unless Corporation Uses Segregated Funds For Such Communications, He


Plaintiff Planned Parenthood Affiliates of Michigan ("PPAM") sought a preliminary injunction to prevent the enforcement of Rule 169.39(b) of the Michigan Administrative Code as unconstitutional. The rule prohibited the use of a candidate's name or likeliness in communications made by a corporation 45 days prior to an election, unless the corporation used separate segregated funds for such communications. PPAM asserted that if Rule 169.39(b) is enforced, its constitutional rights under the First Amendment will be violated.

PPAM is a not-for-profit corporation organized under Michigan law which qualifies as a tax-exempt organization under § 501(c)(3) of the Internal Revenue Code and is subject to the provisions of MCL § 169.254. Section 169.254 prohibits corporations from making contributions or expenditures in political campaigns. However, 26 USC §§ 501(h) and 4911, permit public charities to carry on certain grass roots lobbying activities and allows PPAM to communicate with the public to urge them to contact legislators to support or oppose legislation of interest to PPAM. This type of grass roots lobbying may be carried on 45 days before an election and some of the legislators whose votes or positions are reported upon by PPAM or whom the public is urged to contact, may be at that time candidates for public office. PPAM asserted that it would have to refrain from making expenditures for these types of communications because of the threatened enforcement of Rule 169.39(b) and, consequently, would suffer irreparable injury to its First Amendment rights.

The Court distinguished between "issue advocacy", which addresses general issues and "express advocacy" which would be communications that by their terms urge the voter to vote for or against a specific candidate. Issue advocacy expenditures include those expenditures made for or against issues of public importance, rather than for the defeat or election of a clearly identified candidate. The court found that U.S. Supreme Court precedent established a "bright line between express advocacy and issue advocacy." The government can regulate express advocacy but issue advocacy cannot be prohibited or regulated.

The court found, therefore, that under applicable authority, Rule 169.39(b), on its face, violated the First Amendment. The Rule went far beyond prohibiting expenditures for express advocacy, the Rule prohibited corporate expenditures for a wide range of issue advocacy and chilled constitutionally protected speech. The court rejected arguments that the government had a compelling interest in protecting the real or perceived corrupting influence on the election process by corporations and labor unions. The court found that the regulation of corporate political activity has been concerned with the potential for the unfair deployment of wealth for a political purpose, not with the mere use of the corporate form in political activity. A group like PPAM, which raises funds from its members and donors to support the dissemination of political ideas is not the type of corporation which poses the threat perceived by the defendant. Therefore, the compelling state interest espoused by the government did not justify an infringement on PPAM's First Amendment rights. Accordingly, the court granted plaintiff's motion for a permanent injunction and a declaratory judgment and permanently enjoined defendant from enforcing Rule 169.39(b) because it is unconstitutionally overbroad.

Planned Parenthood Affiliates of Michigan, Inc. v. Candice S. Miller, Case No. 98-73301-DT, 9/21/98, Hood, J. (dkt # 9).

This article was prepared by William F. Frey, a partner in our Litigation Department, and will appear in the December 1998 edition of the Michigan Bar Journal.