UPDATE: On February 14, 2013, Judge John Woodcock of the U.S. District Court ruled that the Maine Municipal Association’s PAC-related activities didn’t violate the plaintiffs’ rights under the Free Speech Clause of the First Amendment of the U.S. Constitution. He based his decision on “government speech” doctrine, which negates First Amendment claims when government is the speaker. In this case, the “speech” was the MMA’s election activities through five ballot initiatives from 2002 to 2009. In each case, the MMA helped organize and fund PACs to enact or defeat the referenda, directly involving itself in the various campaigns.
Judge Woodcock emphasized that his ruling was narrow:
The Court’s conclusion that the government speech doctrine applies does not mean that the Plaintiffs have no good claims against MMA, nor does it mean that the Court endorses or does not endorse MMA’s advocacy activities as a matter of policy. The Court holds only that the Free Speech Clause of the First Amendment of the United States Constitution does not reach the conduct the Plaintiffs complain of.
At the same time, he expressed skepticism concerning the propriety of the MMA’s activities apart from the application of government speech doctrine:
As a matter of policy, there is something intuitively odd about the government taxing tax protesters and others to defeat citizen efforts to control taxes. There is also a certain Orwellian aspect to the vision of government-sponsored speech drowning out the voices of ordinary citizens and in so doing assuring the continued sustenance and primacy of government itself. See GEORGE ORWELL, NINETEEN EIGHTY-FOUR (1949).
While the MMA’s Executive Director publicly portrayed Judge Woodcock’s ruling as a triumph for the MMA, it is anything but. When a sitting federal judge cites Orwell while discussing your activities—that is cold comfort indeed.
Although Judge Woodcock ruled on the First Amendment claims, he also invited the plaintiffs to notify him if they thought their First Amendment claims have continued vitality. If the plaintiffs do so, he is prepared to allow further briefing on the First Amendment claims. This extraordinary invitation is doubtless related to the importance of the case, which involves an arm of government directly involving itself in elections.
Finally, Judge Woodcock encouraged the plaintiffs to take their case to the court of public opinion. Rest assured, they will. Over the coming weeks, the people of Maine will be treated to a detailed look into the MMA’s inner workings. The MMA will doubtless not like it but as a public entity it goes with the territory. Sunshine is, after all, the best disinfectant.
* * *
In June 2010, MHPC’s Center for Constitutional Government filed suit on behalf of three individual plaintiffs and Cyr Plantation against the Maine Municipal Association. The complaint alleged violation of the individual plaintiffs’ First Amendment rights by the MMA due to the MMA’s active support of or opposition to five citizens initiatives from 2002-2009.
The individual plaintiffs are all participants in and contributors to the various initiative campaigns, either in support or opposition. They are also property taxpayers and voters.
The initiatives were: (1) the 55% School Funding Initiative (2002-2004), (2) the Palesky tax reduction initiative (2004), (3) TABOR I (2006), (4) TABOR II (2009) and (5) the Auto Excise Tax initiative (2009). In each case, the MMA actively organized and funded the campaigns in support or opposition. The MMA’s total expenditures (monetary and in-kind) from 2002-2009 totaled nearly $2 million dollars.
Current status of the case: the parties are awaiting a ruling by Judge John Woodcock concerning the MMA’s ability to assert ‘government speech’ doctrine against the plaintiffs’ First Amendment claims.
Available for download are the following pdf documents (all with built-in ‘bookmarks’ for easy navigation):
1. The plaintiffs’ Amended Complaint (sets forth the basic facts and the legal claims).
2. The plaintiffs’ ‘Statement of Material Facts’, which sets out in detail their factual claims against the MMA with citations to the record. The plaintiffs’ ‘Additional Statements of Material Fact’ are in response to filings by the MMA.
3. 55% School Funding Initiative – extracts from minutes of the MMA Executive Committee and key documents.
4. Palesky Initiative – extracts from minutes of the MMA Executive Committee and key documents.
5. TABOR I Initiative – extracts from minutes of the MMA Executive Committee and key documents.
6. TABOR II/Excise Tax Initiatives – extracts from minutes of the MMA Executive Committee and key documents.
In addition, here are key documents concerning the MMA’s finances:
1. The MMA’s Audited Financial Statements, 2001-2009 (a detailed look at the MMA’s finances).
2. MMA Health Insurance Trust, 2001-2009 Audited Financial Statements.
3. MMA Property and Casualty Insurance Trust, 2001-2009 Audited Financial Statements.
4. MMA Workers’ Compensation Trust, 2001-2009 Audited Financial Statements.
5. MMA Unemployment Compensation Trust, 2001-2009 Audited Financial Statements.
These latter documents are important because they demonstrate the flow of money from the MMA’s insurance business into the coffers of the MMA. Approximately 80% of the MMA’s 10+ million dollar annual budget comes from ‘administrative fees’ charged to the various insurance trusts.
All the MMA’s income – from whatever source – is tax exempt because the MMA claims a municipal government tax exemption (26 U.S.C. section 115).