The First Circuit Court of Appeals in Boston has found that Maine’s law prohibiting foreign governments — and companies owned in part by foreign governments — from campaigning in state elections is unconstitutional in an apparent blow to the state’s ability to say who can influence its elections and, accordingly, its sovereignty.
This ruling has temporarily halted enforcement of the law as the case is sent back to the lower courts for further consideration.
In addition to barring foreign involvement, the challenged legislation also required the media to do their “due diligence” to determine whether or not the entity behind an advertisement is owned by a foreign government when making decisions about what to air or print.
This circuit court ruling comes more than a year after a federal judge first halted enforcement of the law in early 2024.
After voters overwhelmingly approved the citizens initiative proposing this law at the ballot box in November of 2023, four lawsuits were filed almost immediately in opposition to it.
Among those who filed suit were Central Maine Power (CMP), Versant and NMAX Corporation, the Maine Press Association and the Maine Association of Broadcasters, as well as a group of Maine voters and electors.
Because CMP and Versant are both partially owned by foreign governments, they would be prohibited under this law from spending on elections in Maine despite their inherent ties to the state.
Voters’ approval of this law initially came amongst a broader controversy over the ballot question that would have allowed for the creation of a consumer-owned electric utility called Pine Tree Power that would have bought out both CMP and Versant had its creation been green-lighted.
These four original lawsuits were consolidated into a single case at the parties’ request on January 9, 2024.
United States District Court Judge Nancy Torresen ruled in March of 2024 that the law was temporarily unenforceable due to potential preemption by federal law, as well as with relation to First Amendment concerns.
Although a number of other claims were made by the plaintiffs concerning the law, Torresen said that these two arguments alone were enough to warrant a preliminary injunction temporarily barring the state from enforcing the measure.
The First Circuit’s recent ruling upheld this interpretation, explaining that while the state does have a “compelling interest” to prevent foreign interference, it does not have the authority to prevent the “appearance of” interference.
The circuit court further suggested that the law would likely be found to violate the First Amendment because “U.S. corporations with First Amendment protections will likely choose not to speak at all rather than risk criminal penalties,” particularly due to potential uncertainty regarding how close they may or may not be to the legal threshold for foreign ownership.
The First Circuit’s three-judge panel also found that Maine’s five percent ownership threshold looks like “an end-run around Citizens United, aimed at silencing a large swath of corporations merely because they are corporations.”
Citizens United v. FEC was a 2010 Supreme Court decision in which the Justices decided that placing limitations on “independent political spending” by both individuals and corporations violated the First Amendment, arguing that these expenditures did not present a sufficient enough threat of corruption warrant government intervention.
[RELATED: Federal Judge Halts Enforcement of Ban on Foreign Election Spending in Maine]
Danna Hayes, a spokesperson for the Maine attorney general’s office, has reportedly said that there has been no substantive movement yet on the case since it was brought back to the lower courts.
Rick Bennett, chair of Protect Maine Elections — the committee formed to support the 2023 ballot initiative — has said that the law in question reflects Mainers’ desire to ensure clean elections.
“Mainers spoke with one voice: our elections should belong to us, not to corporations owned or influenced by foreign governments whose interests may not align with our own,” Bennett said in a statement.
“We really wanted to deal with the underlying root problem here of the inability of citizens to control their own elections,” Bennett told Maine Morning Star. “Now with this ruling, it means that foreign-government controlled entities, even with 100 percent foreign government control, can still spend millions of dollars in Maine elections.”
Charles Miller, a senior attorney at the Institute for Free Speech — which filed an amicus brief in support of the plaintiffs — told the outlet immediately after the ruling came down that the circuit court’s decision is indicative that states cannot vaguely restrict free speech in this manner.
“I think that we citizens have to all be on high alert for clever ways that politicians are going to use to try to limit our speech rights, and we have to fight against it, even when the target of those laws at the time are things that we don’t want to hear,” Miller said.
With this temporary injunction now in place, the State of Maine will be blocked from enforcing the law against foreign campaigning while consideration of this case continues.
