Michigan Advisory Opinions September 28, 1988: AGO 6541 (September 28, 1988)

AGO 6541.

You have requested my opinion on a question which may be restated as follows:

Whether the filing and reporting requirements of the campaign financing and practices act apply to churches and church organizations which permit proponents or opponents of a ballot question to gather petition signatures or solicit contributions in support of or in opposition to a ballot question from persons attending church services or at scheduled meetings of church members.

You advise that the petitions are circulated by members of a ballot question committee at church religious services or at scheduled meetings of church members, and the solicitation by the members of the ballot committee of contributions for support of or in opposition to the ballot proposal committee are solicited and received at church religious services or at scheduled meetings of church members.

The campaign financing and practices act, 1976 PA 388, MCL 169.201 et seq; MSA 4.1703(1) et seq, in part, regulates ballot question committees.

Act 388, Sec. 34, in pertinent part, provides:

"(1) A ballot question committee shall file a campaign statement as required by this act according to the following schedule:

(a) A preelection campaign statement, of which the closing date shall be the sixteenth day before the election, shall not be filed later than the eleventh day before the election.

(b) A postelection campaign statement, the closing date of which shall be the twentieth day following the election shall not be filed later than the thirtieth day following an election. If all liabilities of the committee are paid before the closing date and additional contributions are not expected, the campaign statement may be filed at any time after the election, but not later than the thirtieth day following the election.

"(2) A ballot question committee supporting or opposing a statewide ballot question shall file a campaign statement, of which the closing date shall be the twenty-eighth day following the qualification of the measure, not later than 35 days after the ballot question is qualified for the ballot. If the ballot question fails to qualify for the ballot, the ballot question committee shall file the campaign statement within 35 days after the final deadline for qualifying, the closing date of which shall be the twenty-eighth day following the deadline."

This section provides for certain late filing fees and imposes criminal penalties for violating its provisions.

The term "ballot question committee" is defined in Act 388, Sec. 2(2), as follows:

" 'Ballot question committee' means a committee acting in support of, or in opposition to, the qualification, passage, or defeat of a ballot question but which does not receive contributions or make expenditures or contributions for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate."

In Act 388, Sec. 3(4), the Legislature has defined the term "committee" to mean

"a person who receives contributions or makes expenditures for the purpose of influencing or attempting to influence the action of the voters for or against ... the qualification, passage, or defeat of a ballot question, if contributions received total $200.00 or more in a calendar year or expenditures made total $200.00 or more in a calendar year. An individual, other than a candidate, shall not constitute a committee."

The Legislature has defined the term "contribution" in Act 388, Sec. 4(1) to mean

"a payment, gift, subscription, assessment, expenditure, contract, payment for services, dues, advance, forbearance, loan, donation, pledge or promise of money or anything of ascertainable monetary value, whether or not conditional or legally enforceable, or a transfer of anything of ascertainable monetary value to a person, made for the purpose of influencing the nomination or election of a candidate, or for the qualification, passage, or defeat of a ballot question. An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned."

"Expenditure" is defined in Act 388, Sec. 6, as follows:

"(1) 'Expenditure' means a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, ... the qualification, passage, or defeat of a ballot question. An offer or tender of an expenditure is not an expenditure if expressly and unconditionally rejected or returned.

"(2) Expenditure includes a contribution or a transfer of anything of ascertainable monetary value for purposes of influencing ... the qualification, passage, or defeat of a ballot question.

"(3) Expenditure does not include:

"....

"(b) An expenditure for communication by a person strictly with the person's paid members or shareholders.

"...."

The Secretary of State, pursuant to Act 388, Sec. 15(e), has promulgated 1982 AACS, R 169.34, to define the value of "in-kind contributions" as "the amount which could usually be received in the open market for goods and services."

Michigan's appellate courts have not had occasion to rule on the application of the Act's reporting requirements to religious groups. However, in 1983 the Michigan Court of Appeals did consider the constitutionality of applying 1975 PA 227; MCL 4.411 et seq; MSA 4.1704(1) et seq, the lobby law, to religious groups in Pletz v Secretary of State, 125 Mich App 335; 336 NW2d 789, lv den 417 Mich 1100.20 (1983). The court considered a claim by "church groups ... that the act violates the First Amendment's freedom of religion clause. Specifically, ... that if church institutions were required to comply with the act, it would constitute an infringement upon the exercise of religious freedom and privacy, both as to religious institutions and their members." Pletz, 125 Mich App at 373. The court held:

"In our view, continuing observation and review of religious organizations' documents and records would be necessary for the government to review for evidence of possible lobbying activities. Additionally, determination of which records are for lobbying and which are for religious purposes would be a continuing difficult chore.

"... The Michigan Constitution recognizes that religious groups traditionally have been granted special status. We conclude that, insofar as applied to churches and religious institutions, the act violates the First Amendment by creating excessive and enduring entanglements between state government and religious institutions. Consequently, in order to preserve the constitutionality of the act, we interpret it to except churches and religious institutions from its coverage and application." Pletz, 125 Mich App at 373-374.

The court in Pletz was, of course, simply applying one part of the three-part test set forth in Lemon v Kurtzman, 403 US 602; 91 S Ct 2105; 29 L Ed 2d 745 (1971), namely that state action that creates an excessive entanglement of government and religious is prohibited by the First Amendment. As the United States Supreme Court said in Aguilar v Felton, 473 US 402, 413; 105 S Ct 3232; 87 L Ed 2d 290 (1975), quoting Lemon, 403 US at 614:

"We have long recognized that underlying the Establishment Clause is 'the objective ... to prevent, as far as possible, the intrusion of either [church or state] into the precincts of the other.' "

While no Michigan appellate court has addressed the application of Michigan's campaign financing and practices act to churches and religious institutions, the Tennessee court did so in Bemis Pentecostal Church v State, 731 SW2d 897 (Tenn 1987), app dis ____ US ____; 108 S Ct 1102; 99 L Ed 2d 264 (1988), where TCA, Sec. 2-10-101 et seq, a campaign financial disclosure statute comparable to the Michigan campaign financing and practices act, was challenged as unconstitutional by a group of churches.

In Bemis the Tennessee Supreme Court first concluded that Tennessee's reporting act did apply to "any group that wishes to participate in the process through the financing of election outcome specific advocacy...." 731 SW2d at 904. The court went on to hold, however, that Tennessee's campaign reporting act did not apply to the "financing of generalized discussion of public issues...." 731 SW2d at 905. Specifically, the Tennessee Supreme Court said:

"Plaintiffs' regular and continuing programs of broadcasting their religious services on radio or television or of publishing and distributing church newsletters are not and cannot be considered campaign contributions or expenditures, regardless of whether they advocate a particular election result or not in the course of such activities, as these activities are protected by the First Amendment and are expressly excluded from the operation of the Act under T.C.A. Sec. 2-10-102(3)(B). Only the financing of their direct participation in the campaign, through activities in which Plaintiffs would not otherwise have engaged but for an impending election, trigger the Act.... [However,] the predominantly religious activities of Plaintiffs are not within the scope of the Act and would not result in Plaintiffs being considered political campaign committees for any purpose under the Act...." 731 SW2d at 905.

It is my opinion, therefore, that the filing and reporting requirements of the campaign financing and practices act, 1976 PA 388, do not apply to churches and church organizations which permit proponents of a ballot question to gather petition signatures or proponents or opponents of a ballot question to solicit and receive contributions from persons attending church services or at scheduled meetings of church members.

Frank J. Kelley

Attorney General