Three bills before the Maine Legislature, designed to restrict campaign expenditures in Maine referendum elections by companies with minority foreign ownership, would be a disservice to affected businesses and the voters. They would also violate First Amendment free speech principles. Two of the three bills are presented as emergencies, to become effective immediately to affect an upcoming referendum concerning the New England Clean Energy Connect transmission line. The Maine State Chamber of Commerce has supported NECEC for its environmental, economic and renewable-energy benefits.
The chamber opposes legislation prohibiting companies with foreign investment from participating in referendum elections in which their vital interests may be at stake.
It is bad policy to change election rules for the express purpose of affecting a pending referendum. Basic fairness requires that any changes affect only elections on petitions filed after the rules change.
Maine has sought and welcomed substantial foreign investment. One speaker supporting the bills suggested that even a 1 percent foreign stake should be sufficient to disqualify a company, despite 99 percent American ownership, from advocating for itself. Apart from its unfairness, the chamber opposes this insult to our international investors and partners, some of Maine’s largest employers, whose integrity was groundlessly attacked by the bills’ proponents.
This legislation affects businesses of all sizes. Publicly traded companies do not even know the identity of all their beneficial owners, as shares are traded by large mutual funds daily. Conversely, imagine a small company owned by 20 first cousins, most living in northern Maine and some in Quebec. A referendum to change some law and adversely affect that company could not be resisted by the company because of the presence of the Canadian cousins.
This gratuitous hostility toward Canada, of all places, is unimaginable. Money from Texas- and Florida-based fossil fuel interests supporting the referendum is not affected, although Texas and Florida are a lot farther from Maine than Quebec. Banishing Hydro-Quebec while welcoming Texas oil and gas producers, considering the recent Texas energy debacle, is an odd choice.
The biggest issue is what several speakers called a “loophole” in Maine election laws. The First Amendment is no “loophole.” The full constitutional analysis is beyond the scope of an op-ed. The key point is that issue advocacy is the most highly protected form of speech, more than commercial, entertainment or even artistic speech. Companies that are prohibited from donating to candidates, because of the risk of unduly influencing the candidates, are constitutionally free to participate in the marketplace of ideas to inform and try to persuade voters.
Unlike legislators, voters making law directly do not have staff to research issues for them. Supporters of these bills insult the intelligence of Maine people by assuming that anyone with an opinion different from theirs has been misled or manipulated by foreign “dark” money (all of which needs to be reported). On a different day, the same speakers would undoubtedly proclaim correctly that Maine people are not so easily fooled and can be trusted to make these decisions based on all the information available to them.
The Constitution is clear: Any law that even incidentally limits issue advocacy must be narrowly tailored to achieve some other compelling state interest. Where not only the state interest is not compelling, but also where the whole purpose is to restrict issue advocacy, the unconstitutionality of the legislation is indisputable.
The power line through a working forest will bring clean hydropower to the New England energy grid and will displace some fossil fuel profits of the Texas and Florida supporters of these referenda. The chamber does not begrudge those companies the right to advocate for their interests. The chamber supports the right of every company, whatever its ownership, to advocate on issues that affect the company’s well-being because the chamber knows, unlike the sponsors of these bills apparently, that Maine people are not going to be fooled. The very premise of initiated referenda is that the people are fully capable of making law. The First Amendment and the Supreme Court decisions protect issue advocacy to benefit both the advocate and the audience to guarantee Maine people access to all arguments on all sides when they are asked to legislate directly in a referendum.
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