By: Connor Skelly
A fight over an electrical transmission line in the Great North Woods has ignited a firestorm around the ability of foreign government owned corporations to spend money on electioneering in the state of Maine, with implications that could stretch all the way back to the Supreme Court’s Citizens United decision.
LD 194 was passed by the Maine Legislature in the wake of Hydro-Quebec, a company that is solely owned by Quebec’s provincial government, spending $10 million dollars on campaigning against a referendum that would have halted the constructed of a 145-mile transmission line that would bring the company’s electricity into Maine. While entities owned by foreign governments are already prohibited by both federal and Maine law from contributing money to candidates, a loophole still exists that allows them to contribute money in Maine’s popular referendums. LD 194 was meant to close this loophole. The bill prohibited companies with 10% or more ownership by foreign governments from contributing money in any Maine election, including referendums.
Advocates of the bill see it as a way to keep Maine’s elections in the hands of Maine’s citizens and as a way to curb the ability of corporations to spend unlimited money on elections in the wake of Citizens United. Ron Fein, Free Speech for the People’s legal director, argues that laws of this nature should be extended to prohibit any corporation with foreign ownership of greater than 5% from contributing money to campaigns and adopted on a nationwide scale. This would prohibit 74% of companies in the S&P 500 from making campaign finance contributions.
Although passed with bipartisan support in Maine’s legislature, LD 194 went on to be vetoed by Governor Janet Mills. In her veto, the governor stressed concerns about restrictions the bill would place on access of information to voters as well as her disagreement with the idea that political speech from entities covered by the bill was inherently negative or somehow amounted to interference in Maine’s elections. She also emphasized the importance of several companies to Maine’s economy that would meet the 10% foreign government ownership threshold. She said that the impact this bill would have on companies that employ thousands of the state’s citizens would be “offensive to the democratic process.” Lastly, the governor believed that bill would not survive a constitutional challenge due to its restrictions on “core political speech” and precedent from the Supreme Court.
The governor references First National Bank of Boston v. Belloti in her veto, which was a 5 to 4 decision in which the Supreme Court held that the First Amendment protected the right of corporations to influence elections. On the other hand, case law exists that upholds federal laws prohibiting foreign nationals from contributing money or otherwise participating in elections. In Bluman v. FEC, the district court held that it is a basic precept of our national political community that foreign individuals do not have a constitutional right to participate in our elections. The Bluman decision was later affirmed by the Supreme Court.
Even though the Maine Legislature does not have the votes to overturn the veto, the battle is far from over. Protect Maine Elections, a ballot question committee, is working to get the measure placed on the ballot in the 2022 election cycle as a citizen’s initiative. The initiative is gaining early support from a range of individuals and entities. The coalition that backed Maine’s 2016 ranked choice voting referendum has thrown its weight behind the initiative. Democratic State Representative Kyle Bailey, who led the charge behind ranked choice voting in Maine, is also leading Protect Maine Elections along with his Republican colleague, State Senator Rick Bennet. John and Mary Palmer, Maine citizens and prominent electoral reform advocates, have donated $25,000 to the cause. The couple also contributed handsomely to the campaign behind ranked choice voting. Jeff Clements, president of American Promise, donated $25,000 to the cause as well. American Promise has the stated goal of advocating for an amendment to the U.S. constitution that would overturn Citizens United. The fight over foreign financing in Maine’s elections will soon begin in earnest these coming months, and it could represent one of the opening salvos in the larger war against corporate spending in our elections.