Defending Maine’s Ability to Keep Foreign Money Out of State Elections

At a Glance

Campaign Legal Center is participating in the defense of Maine Question 2, known as the “Prohibit Foreign Spending in Elections Initiative,” in four lawsuits challenging the constitutionality of the initiative. CLC represents Protect Maine Elections, the ballot measure committee that was founded to help draft and enact Question 2.

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About This Case/Action

In December 2023, four separate lawsuits were filed in a federal court in Maine seeking to overturn Question 2, Maine’s newly enacted initiative that bars entities owned or influenced by foreign governments from spending to influence state elections. The plaintiffs in these actions include several foreign government-owned utility companies based in Maine with a history of heavy campaign spending in state ballot referenda.  

Maine voters overwhelmingly approved Question 2 in November 2023 with over 86% voting in support, the largest margin of approval in the 115-year history of state ballot questions.

The initiative represented the culmination of a multi-year effort of both Maine legislators and citizens to correct loopholes in federal and state law that had allowed foreign-owned domestic corporations to spend tens of millions of dollars in state candidate and ballot initiative elections, undermining Maine’s commitment to local democratic self-governance.

The foreign money initiative comprises three main components to counter this influx of foreign money into Maine governance. The heart of the law is its ban on electoral spending by corporations in which a foreign government has an ownership share of more than 5%. Then, to prevent circumvention of this foreign money ban, the law also directs media entities to establish internal “due diligence policies” designed to ensure that they do not broadcast prohibited foreign government-sponsored election ads. Finally, the initiative also contains a transparency measure, requiring foreign government-influenced entities to include brief disclaimers identifying themselves on any public communications made for the purpose of lobbying state or local officials.

The plaintiffs in these four cases challenge all these provisions, arguing that they infringe on their exercise of First Amendment rights and are preempted by federal campaign finance law. But as Protect Maine Elections explained in its filings with the district court, the U.S. Supreme Court has already approved the federal foreign money ban, affirming that citizens have “a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”  

This interest is equally compelling with respect to efforts by states to prevent foreign nationals from spending money in state and local elections, and in particular ballot referenda, where voters participate in direct democracy to enact their own laws. Ten other states — from California to Maryland — have also enacted laws like Maine’s to prohibit foreign nationals from spending to influence their citizen-initiated ballot measure processes.

The Supreme Court and lower courts have also made clear that the interest in preventing foreign influence extends to spending by “foreign corporations.” In fact, these precedents may allow laws restricting election spending by corporations with any foreign investors — but Maine takes a much more targeted approach. The initiative uses a 5% ownership threshold, relying on a well-recognized benchmark for corporate control already incorporated into existing federal securities law, and focusing on only the small fraction of domestic corporations that are controlled by foreign governments.

The disclaimer requirement is also key to shining a light on attempts by foreign governments to influence state and local policy. As Protect Maine Elections pointed out, this disclaimer requirement functions as a state counterpart to longstanding federal disclosure requirements, for instance in the Foreign Alien Registration Act, that also seek to ensure that citizens are aware of lobbying by foreign interests and are apprised the identity of their lobbyists and policies they are advocating.

What’s At Stake?

When foreign entities are able to spend to influence our elections, it becomes harder for ordinary Americans to participate in the democratic process and feel like they have a voice in our government.  

By enacting Question 2, Mainers joined a wave of over a dozen other states and localities from coast to coast that have similar sought to shield their state elections from foreign influence and to vindicate their citizens’ interest in local self-governance. 

VICTORY: Wisconsin Gov. Tony Evers Signs Fair, Constitutional State Legislative Maps Into Law Before 2024 Election

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Today, in a historic victory for Wisconsin voters, Wisconsin Gov. Tony Evers signed into law fair, non-gerrymandered maps that ensure Wisconsinites will vote in constitutional state legislative districts in time for the 2024 election. This means, for the first time since 2011, Wisconsin voters will have a meaningful say in who controls the statehouse.

 

Today’s development follows the Wisconsin Supreme Court’s momentous decision last December striking down Wisconsin’s non-contiguous state legislative maps as unconstitutional. 

 

That decision stemmed from a lawsuit brought in August 2023 by the nonpartisan Campaign Legal Center (CLC) alongside Law Forward, the Election Law Clinic at Harvard Law School, Stafford Rosenbaum LLP, and Arnold & Porter on behalf of individual Wisconsin voters who were harmed by the unconstitutional state legislative maps.

 

“For thirteen years, Wisconsinites suffered under unfair and unconstitutional maps — but today, that changes,” said Mark Gaber, senior director of redistricting at Campaign Legal Center and a native Wisconsinite. “The adopted maps represent a massive win for democracy, respect communities, and give a voice to Wisconsinites who have been silenced for far too long by gerrymandered maps deliberately designed to drown them out. These maps give all Wisconsinites — no matter where they live in the state or which party they support — a fair shot to make their voice heard in 2024.” 

 

After the December 22, 2023 decision striking down the state legislative maps, parties were given a deadline of January 12, 2024 to submit map proposals. On February 13, the Wisconsin State Legislature voted to adopt the maps proposed to the Court by Governor Tony Evers without any changes and, today, he signed them into law. According to the analysis of the Court’s neutral consultants, respected leaders in their field, these maps meet Wisconsin’s constitutional requirements and are politically neutral.

 

“Wisconsin is indebted to the 19 voters who bravely took a stand and acted, breaking the gerrymander that has stifled voters’ voices for the past 13 years,” said Dan Lenz, staff counsel for Law Forward. “Our clients now have a real chance to enact the change they have been working towards. For democracy to work for us all it must include us all, and this important effort ensures our elected representatives represent us instead of trying to rule over us. Today's win builds on the decade of litigation and organizing work for fair maps in Wisconsin and is a credit to the team including the Campaign Legal Center, the Election Law Clinic at Harvard Law School, Stafford Rosenbaum, Arnold and Porter and Law Forward.”

 

Thirteen years ago, Wisconsin lawmakers, behind closed doors and in defiance of the state constitution, drew new district lines that essentially guaranteed one-party GOP control of the legislature. In 2021 the Legislature’s proposed districts, which were ultimately adopted, increased the partisan skew of the 2011 maps and perpetuated blatantly noncontiguous legislative districts. December’s decision struck those down – and today’s development ensures Wisconsin voters will have the opportunity to vote under fair maps in 2024.

 

More details about the case can be found here. 

 

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Redistricting

Campaign Legal Center Files FEC Complaint Against Super PAC Spending in Montana Senate Race

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WASHINGTON, D.C. – Today, Campaign Legal Center (CLC) filed a complaint with the Federal Election Commission (FEC) alleging that the super PAC “Last Best Place PAC” failed to file the required pre-election independent expenditure report despite running an ad expressly opposing Tim Sheehy, a U.S. Senate candidate from Montana. 

Under the Federal Election Campaign Act (FECA), independent expenditures — communications that expressly advocate for or against a clearly identified candidate — of more than $10,000 made more than 20 days before an election must be reported to the FEC within 48 hours. Despite producing an ad that appears to fit these parameters, Last Best Place PAC never submitted a 48-hour independent-expenditure report to the FEC, and the super PAC’s 2023 end-of-year disclosure report stated that it had made no independent expenditures. 

“Voters will be facing an influx of political ads as we get closer to this year’s primaries, and they have a right to know who is spending to influence their vote and our government,” said Erin Chlopak, senior director of campaign finance at CLC. “Super PACs and other groups that fail to properly disclose information about their funding sources and spending are depriving voters of critical information. As the only agency tasked with enforcing federal campaign finance law, the FEC must ensure that groups like ‘Last Best Place PAC’ are transparent about how they are raising and spending money to influence elections.” 

Last Best Place PAC, which has reportedly spent over $5.8 million on ads attacking Sheehy since its inception on September 5, 2023, recently filed its 2023 year-end report, which revealed its ties to the national Democratic Party: It received all of its funding from Majority Forward — a group that supports the Democratic leadership-aligned super PAC SMP (formerly Senate Majority PAC), and spent virtually all of its money to pay a previously unknown Virginia-based vendor, “Mountain Media,” which shares an address with “Old Town Media,” a media buyer that works exclusively with Democratic candidates and PACs.

By not timely disclosing its independent expenditures, as the law requires, Last Best Place PAC helped obscure who was truly behind obvious efforts to influence the Republican primary election for the U.S. Senate in Montana, undermining voters’ ability to evaluate its ads with a complete understanding of the group’s apparent motives.

Wealthy special interests often run elections ads that are deliberately misleading. That is why super PACs are required to, in a timely manner, disclose information that gives voters insight into who is spending to influence their vote. The FEC must investigate this failure by Last Best Place to disclose this information.

See the Complaint here. 

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Campaign Finance

Bipartisan Arizona Election Bill Aligns State Election Deadlines with Federal Law

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Today, Arizona Gov. Katie Hobbs signed a bipartisan bill into law that helps ensure Arizona’s election deadlines comply with the federal Electoral Count Reform Act of 2022 – a move that helps secure Arizona’s elections and enables Arizona’s presidential election results to be properly transmitted to Congress, reflecting the will of Arizona’s voters.

 

Catherine Hinckley Kelley, senior director for policy and strategic partnerships at Campaign Legal Center, issued the following statement:  

 

“Campaign Legal Center commends Arizona lawmakers for their bipartisan effort to update the state’s election laws. 

 

The bill signed today by Governor Hobbs is a robust bipartisan compromise that aligns Arizona’s post-election timelines with new federal deadlines – a necessary improvement ahead of the 2024 presidential election. This is a step forward for democracy, for Arizona’s voters, and for trust in Arizona’s elections.

 

Campaign Legal Center hopes other states will follow Arizona’s example and make necessary legislative updates in advance of this election.”

 

Background: 

 

In December 2022, the U.S. Congress passed the bipartisan Electoral Count Reform Act (the ECRA), a law that updated the archaic Electoral Count Act (ECA) of 1887. 

 

Among other changes that address vulnerabilities in the process of casting and counting electoral votes revealed in the 2020 presidential election, the ECRA mandates that each state’s executive must certify the state’s slate of electors six days before the date on which the electors meet to officially cast their votes; for the 2024 presidential election states must certify their presidential election results by December 11. A number of other states have updated their laws to align with the new federal deadlines.

 

Today’s bipartisan bill signed by Governor Hobbs aligns Arizona’s post-election process to comply with the deadlines set in the ECRA by:

 

  • Requiring county boards to meet and canvass the election results on the third Thursday after the election, shortening the timeline for this post-election process;
  • Requiring the Secretary of State to perform the state canvass no later than the third Monday after the election; 
  • Specifying a timeline for initiation of a recount by requiring the Secretary to certify facts to the Maricopa County Superior Court within 24 hours of the last county canvass or the last day allowed for county canvass, whichever is earlier;
  • Requiring that “logic and accuracy” testing on the tabulators to be used in the recount to take place within two calendar days after the court orders the recount;
  • Requiring the use of electronic transmission for canvass results to the Secretary of State, thus speeding up the process;
  • In the case of a recount, allowing a hand recount and machine tabulation recounts to be conducted simultaneously, saving valuable time in the recount timeline. 
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Voting and Elections
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