Case Information
*1 Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.
_________________
COUNSEL ON MOTION FOR INJUNCTION PENDING APPEAL аnd REPLY: Christopher Wiest, Theodore Roberts, CHRIS WIEST, ATTY AT LAW, PLLC, Covington, Kentucky, Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR & ARMSTRONG, Cincinnati, Ohio, for Appellants. ON RESPONSE: Leslie M. Saunders, KENTUCKY REGISTRY OF ELECTION FIANANCE, Frankfort, Kentucky for Appellees. ON AMICUS BRIEF: Matthew F. Kuhn, John H. Heyburn, Elizabeth Hedges, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amicus Curiae.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Three Kentucky Republican Party county executive committees challenge the Kentucky Registry of Election Finance’s prohibition on expending funds in support of a state constitutional amendment on the November general- election ballot. The district court denied the executive committees’ application for a preliminary injunction. The executive committees seek an injunction pending appeal of the preliminary- injunction decision. Because we conclude that the executive committees are likely to succeed on the merits of their First Amendment claim, we grant the injunction pending appeal and order expedited briefing on the appeal of the denial of the executive committees’ motion for preliminary injunction.
I.
A. Statutory and Regulatory Framework
This case concerns the constitutionality of a part of Kentucky’s campaign-finance regime, and the Kentucky Registry of Election Finance’s (“the Registry”) interpretation and enforcement thereof. Accordingly, some background is in order. The Registry is a state agency charged with regulаting campaign-finance disclosures and investigating and civilly prosecuting campaign- finance violations. Ky. Rev. Stat. § 121.120(1). The Registry may investigate and civilly prosecute state campaign-finance violations “[u]pon the sworn complaint of any person, or on its own initiative.” Id. § 121.140(1). When the Registry has probable cause to believe that state campaign-finance law has been knowingly violated, the Registry shall refer the case to appropriate state or county authorities for criminal prosecution. § 121.140(5). The Registry also has power to issue advisory opinions, upon request of any person, “concerning the аpplication” of state campaign-finance law or regulations to a specific transaction or activity. Id. § 121.135(1). An advisory opinion authorizing the transaction or activity described in the request may be relied upon by the requestor as a defense to any future enforcement. § 121.135(4).
The Registry regulates campaign activities in part through a statutory taxonomy of “committees” subject to different requirements. As a general matter, a committee must register with the Registry, “by filing official notice of intention at the time of organization, giving names, addresses, and positions of the officers of the organization, identifying an official cоntact person of the committee, and designating the candidate or candidates, slate of candidates, or question it is organized to support or oppose on forms prescribed by the registry.” Ky. Rev. Stat. § 121.170(1). Committees must designate a campaign treasurer, who must designate a depository bank to hold contributions, maintain records of contributors and contributions, make or authorize expenditures, and maintain records for six years from the final date of filing. Id. §§ 121.160(1)–(2), 121.170(3). After making an independent expenditure advocating the election or defeat of a candidate or slate of candidates, committees must report within 48 hоurs of the communication being distributed or otherwise publicly disseminated. Id. § 121.120(6)(j).
One type of committee is a “political issues committee,” which is defined as “three (3) or more persons joining together to advocate or oppose a constitutional amendment or public question which appears on the ballot if that committee receives or expends money in excess of one thousand dollars ($1,000).” Ky. Rev. Stat. § 121.015(3)(d). Within five days of meeting the statutory definition of a political issues committee, that committee must submit a form to the Registry indicating whether it intends to raise or spend more than $5,000 in any one election. Id. § 121.180(1)(a)(1). Political issues committees may receive unlimited contributions, including contributions from corporations. Id. § 121.150(18); see id. § 121.150(11). Funds must be expended on the particular issue, such as a constitutional amendment, for which they are raised, and any excess funds following an election must be returned to contributors, escheated to the State Treasury, donated to charity, or spent on future advocacy of the same issue. § 121.180(10)(a), (d). Political issues committees that intend to raise or spend more than $5,000 must report in the run-up to the election—60 days, 30 days, and 15 days before the election day. Id. § 121.180(3)(b). By contrast, political issues committees intending to raise or spend less than $5,000 must report on their receipts and expenditures only after an election ends (within 30 days of the election). § 121.180(4).
The other type of committee relevant here is an “executive committee of a political party.” An executive committee is not defined by statute, but a Kentucky regulation defines it as
an organizational unit or affiliate recognized within the document governing a political party, that raises and spends funds to promote political party nominees, and performs other activities commensurate with the day-to-day operation of a political party, including voter registration drives, assisting candidate fundraising efforts, holding state conventions or local meetings, and nominating candidates for local, state, and federal office.
32 Ky. Admin. Reg. 1:050, § 1(1). Executive committees may not accept corporate contributions or contributions in excess of $5,000 from any one person. Ky. Rev. Stat. § 121.150(11)(a), (18). On an annual or semiannual basis, executive committees must make a full public report of all money received from any source and all expenditures made. § 121.180(2)(a). Such reports must be made on an annual basis for executive committees with less than $10,000 in their campaign account and on a semiannual basis for exеcutive committees with more than $10,000. § 121.180(2)(c).
B. Factual Background
Appellants in this case are three county Republican Party executive committees—the Boone County Republican Party Executive Committee (“BCRP”), the Hardin County Republican Party Executive Committee (“HCRP”), and the Jessamine County Republican Party Executive Committee (“JCRP”) (collectively “the executive committees”). R.1 (Pls.’ Verified Compl. for Decl. & Inj. Relief (“Ver. Compl.”) ¶ 4) (Page ID #4). On or about June 10, 2024, HCRP and JCRP sought an advisory opinion from the Registry as to whether a county party executive committee may make expenditures supporting or opposing a state constitutional amendment on the ballot. R. 14-3 (Exhibits to Defs.’ Mem. of Law in Resp. to Pls.’ Mot. for Prelim. Inj., Permanent Inj., & Mot. for Summ. J.) (Page ID #148–49). In response to their requests, the Registry issued an advisory opinion. R. 1-3 (Exhibit to Ver. Compl.) (Page ID #21–23). In Advisory Opinion 2024-02 the Registry interpreted the regulatory definition of an executive committee, which authorizes such committees to “‘raise[] and spend[] funds to promote political party nominees’” and to “‘perform[] other activities commensurate with the day-to-day operation of a political party’” to foreclose “us[ing] the funds that it raises for party nominees to support a constitutional amendment.” Id. at 2–3 (Page ID #22–23) (quoting 32 Ky. Admin. Reg. 1:050). The Registry opined that “[t]o the extent that members of the executive committee would like to begin raising funds to support or oppose a constitutional amendment, those members interested must form a political issues committee to do so.” Id. at 3 (Page ID #23).
After this advisory opinion issued, HCRP and JCRP retained counsel who, in a series of emails to the Registry, revealed more precisely how they sought to act. R. 1-4 (Exhibit to Ver. Compl.) (Page ID #24–28). The executive committees wished to print and distribute communications that simultaneously (1) advocate for the Republican slate of candidates, (2) advocate in favor of a constitutional amendment; and (3) provide voter education that a “straight ticket vote does not vote the amendment.” Id. at 2 (Page ID #25). The executive committees believed that they would be foreclosed, under the Registry’s opinion, from producing these communications because they included direct advocacy in favor of a constitutional amendment.
In the exchange with the Registry, the parties’ counsel asked the Registry to withdraw its opinion and sought assurances that they would not be subject to enforcement for engaging in such communications. R. 1-4 (Exhibit to Ver. Compl.) (Page ID #24). Counsel for the Registry refused. Id. Lacking those assurances, HCRP and JCRP, along with BCRP (which was not involved in the advisory letter еxchange), filed a verified complaint for declaratory and injunctive relief against members of the Registry and its executive director (“the Registry”). R. 1 (Ver. Compl.) (Page ID #1). In their verified complaint, the executive committees acknowledged that they had “expressly raised funds and solicited donors for donations, for the express purpose of purchasing signs, campaign materials (to include mailers and door-to-door door hangers) that advocate in favor of the Republican party candidates and nominees (both local and national), as well as the School Choice Amendment.” ¶ 16 (Page ID #6). The School Choiсe Amendment, known as Amendment 2, is a Kentucky proposed state constitutional amendment, which would authorize the state legislature to “provide financial support for the education of students outside the system of common schools.” ¶ 2 (Page ID #3); see 2024 Ky. Acts 32 (H.B. 2). According to appellants, Amendment 2 is a “central issue for voters, particularly voters aligned with [the parties’] values.” Id. ¶ 17 (Page ID #6). Thus, having “determined” that advocacy in favor of the amendment is likely to drive turnout in favor of Republican candidates, the executive committees have designed mailers and door-to-door campaign printings that simultaneously advocate thе Republican slate of candidates and the constitutional amendment. Id. ¶ 31 (Page ID #9) . [1] As of the filing of the complaint, none of the executive committees had yet begun printing or distributing the communications, although the HCRP and BCRP intended to do so regardless of judicial intervention. ¶ 36 (Page ID #10). C. Procedural Background
Simultaneous with the filing of their verified complaint in the district court, the executive committees moved for a temporary restraining order, a preliminary injunction, a permanent injunction, and summary judgment. R. 6 (Pls.’ Mot. for TRO, Prelim Inj., Permanent Inj., and Summ. J. (“PI Mot.”)) (Page ID #65–84). The executive committees contend that the Registry violates their First Amendment rights by prohibiting executive committees from making expеnditures in favor of a constitutional amendment. at 16 (Page ID #80). The district court denied the TRO on the grounds that the executive committees were unlikely to face enforcement action within the duration of any TRO, but set an expedited briefing schedule on the other motions. R. 9 (TRO Mem. Op. & Order at 4) (Page ID #114); R. 13 (Scheduling Order) (Page ID #121). The Registry opposed the executive committees’ motions, arguing that they lacked standing to bring a preenforcement challenge and that the Registry did not limit the executive committees’ expenditures, but rather sought only to enforce valid disclosure requirements on independent expenditures by requiring the executive committees to form political issues committees in support of the amendment. R. 14 (Defs.’ Mem. of Law in Supp. of Resp. to PI Mot. at 10–11) (Page ID #131–32).
The district court denied the motion for a preliminary injunction after a hearing. Although the district court found that the executive committees had standing to bring their preenforcement challenge, the court concluded that they were unlikely to succeed on the merits of their First Amendment claim. R. 22 (PI Op. & Order at 6–13) (Page ID #213–20). The district court reasoned that requiring the executive committees to form political issues committees to expend money in favor of the constitutional amendment imposed аt most a “minimal” burden on the executive committees’ First Amendment rights, which was justified by the governmental interest in transparency and disclosure. at 10–13 (Page ID #217–20). Hence, under the standards of strict scrutiny, “exacting” scrutiny, or rational basis review, the Registry met its burden. at 13 (Page ID #220).
The executive committees appealed the denial of the preliminary injunction and moved in the district court for an injunction pending appeal. R. 24 (Emergency Mot. for Inj. Pending Appeal) (Page ID #227–31). The district court denied the motion for an injunction pending appeal. R. 26 (D. Ct. Inj. Pending Appeal Mem. Op. & Order) (Page ID #285–94). The executive committees now seek an injunction pending aрpeal pursuant to Federal Rule of Appellate Procedure 8(a)(2). [2]
II.
We usually consider four factors when deciding whether to grant an injunction pending
appeal: (1) whether the applicants are likely to succeed on the merits of their appeal; (2) whether
the applicants will be irreparably harmed absent the injunction; (3) whether the injunction will
injure other parties; and (4) whether the public interest favors an injunction.
A. Philip Randolph
Inst. v. Husted
,
III.
The party invoking federal jurisdiction bears the burden to establish the elements of
Article III standing.
Lujan v. Defs. of Wildlife
,
To establish Article III standing, a plaintiff must show an injury in fact caused by the
complained of conduct that would be redressable by a favorable decision.
Lujan
, 504 U.S. at
560–61. An injury in fact must be “concrete and particularized” and “actual or imminent, not
conjectural or hypothetical.” at 560 (citation omitted). An allegation of future injury may
suffice when the threatened injury is “certainly impending” or there is a “substantial risk” that
harm will occur.
Clapper v. Amnesty Int’l USA
, 568 U.S. 398, 409, 414 n.5 (2013).
Accordingly, when an arrest, prosecution, or other enforcement action is sufficiently imminent,
the injury-in-fact element is satisfied.
Susan B. Anthony List v. Driehaus
, 573 U.S. 149, 158
(2014). “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to
be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”
(quoting
Steffel v. Thompson,
At this stage, the executive committees can establish the requisite injury to bring a pre-
enforcement challenge by demonstrating a likelihood that (1) they intend to engage in expression
protected by the Free Speech and Association Clauses; (2) their expression is arguably
proscribed by the challenged statutes, regulations, opinions, and actions of the Rеgistry; and
(3) they face a credible threat of enforcement for exercising their constitutional rights.
See
Driehaus
,
The executive committees have sufficiently demonstrated that they intend to engage in protected speech. Specifically, in their verified complaint, the executive committees declare that they intend to, and have taken steps in furtherance of, printing and distributing communications advocating in favor of Amendment 2. R. 1 (Ver. Compl. ¶¶ 15–18, 24–25, 31) (Page ID #5–7, 9).
The executive committees have also demonstrated that their conduct is arguably proscribed by the challenged statutes, regulations, opinions, and the actions of the Rеgistry. Two of the executive committees—HCRP and JCRP—sought an advisory opinion from the Registry as to whether they could expend funds in support of a constitutional amendment. R. 14-3 (Exhibits to Defs.’ Mem. of Law in Resp. to PI Mot.) (Page ID #148–49). The Registry seems to argue that the advisory opinion issued has no bearing here because the exact details of the executive committees’ proposed expenditures were not clearly articulated in their requests. See Defs./Appellees’ Response to Pls./Appellants’ Emergency Mot. for Inj. Pending Appeal (“Opp’n”) at 8. This argument is unavailing because the Registry addressed the central question still at issue—whether аn executive committee may expend funds in support of a constitutional amendment. And the Registry has not disclaimed this position. Accordingly, the executive committees have demonstrated that the conduct they intend to engage in—communications advocating in favor of both Republican candidates and a constitutional amendment—is proscribed by Kentucky law.
Although the question is closer, at least one of the executive committees has shown that its speech is presently chilled by a credible threat of enforcement. To demonstrate a credible threat of enforcement, “the first and most important factor is whether the challenged action chills speech.” Fischer v. Thomas , 52 F.4th 303, 307 (6th Cir. 2022). The speech of the JCRP has been chilled because, “fearing enforcement action,” it will not expend funds in favor of the amendment “without injunctive relief.” R. 1 (Ver. Compl. ¶ 36) (Page ID #10). [3]
When determining whether a petitioner faces a credible threat of enforcement, we have
commonly considered four factors: (1) Have the defendants previously enforced the challenged
provision against the plaintiffs or others? (2) Have the defendants sent warning letters to the
plaintiffs? (3) Do aspects of the regulatory regime make enforcement easier or more likely, such
as provision allowing citizens to file complaints? and (4) Have the defendants refused to disavow
enforcement of the challenged provision against the plaintiffs?
Online Merchants Guild v.
Cameron
,
The first factor weighs against the executive committees. They have not supplied any evidence that the challenged restriction has previously been enforced against the plaintiffs or others. The executive committees’ generalized contention that the Registry “actively enforces” the state’s campaign-finance laws, R. 1 (Ver. Compl. ¶ 7) (Page ID #4), offers little support for the argument that the Registry will enforce here.
We have emphasized, however, that the four factors are “not exhaustive, nor must each
be established” as long as “‘some combination’ of the factors are present.”
Online Merchants
Guild
,
Mindful that the factors should be viewed holistically, and that we consider only a likelihood of success at this stage, we conclude that the appellants have demonstrated a likelihood that they have standing to seek injunctive relief in this case. Accordingly, we proceed to the merits of thе First Amendment challenge.
IV.
In the realm of First Amendment rights, few are more central than the right to express
opinions on electoral questions and the qualifications of political candidates.
See Citizens United
v. Fed. Election Comm’n
,
When analyzing restrictions on expression, we begin by considering whether the
restriction burdens speech protected by the First Amendment. The executive committees’ First
Amendment rights are likely burdened by the Registry’s prohibition on spending in support of a
constitutional amendment. The Registry’s interpretation of the state statutes and regulations
prohibits the executive committees from expending funds on campaign materials that directly
support the passage of Amendment 2. Because campaign expenditures are a form of political
speech, the Registry’s limitation on those expenditures likely burdens the executive committees’
First Amendment rights.
See Fed. Election Comm’n v. Cruz
,
The Registry seeks to minimize this burden by pointing out that the same members of the executive committees could express their views in another way. See Opp’n at 16–17. Namely, they could form—and perhaps have definitionally already formed—a political issues committee, which could raise and expend money in support of the amendment. See id. But the availability of an alternative means for members of the executive committees to speak freely does not mitigate the burden placed on the executive committees. The Court rejected a nearly identical argument in Citizens United . In that case, the Court reviewed the Federal Election Commission’s ban on corporate campaign advocacy in the run-up to an election. 558 U.S. at 337. The Court rejected the argument that a corporation’s ability to form and advocate through a federal political action committee (“PAC”) nonetheless enabled it to speak. Id. Hence, under Citizens United , allowing the members of the executive committees to form political issues committees does “not allow [the executive committees] to speak” but rather restricts their speech on the topic of a state constitutional amendment. Id.
The Registry does not address this holding of
Citizens United
but instead focuses on
distinguishing
Federal Election Commission v. Massachusetts Citizens for Life, Inc.
, 479 U.S.
238 (1986). Opp’n at 16–17. In that case, the Court analyzed a federal law requiring
corporations to establish a “political committee” to make independent expenditures on behalf of
candidates.
Massachusetts Citizens for Life
,
Even assuming that the burdens are relatively less in this case, we cannot find that the executive committees’ ability to form political issues committees negates, or renders “negligible,” Opp’n at 16, the restriction on exeсutive committees’ speech on ballot issues. To begin, the holding of Citizens United , which followed Massachusetts Citizens for Life by more than two decades, did not rest on the degree of burden imposed by forming a PAC but on the distinction between the two entities. The Court considered the burdens only as an alternative basis for concluding that a corporation’s speech was burdened. Citizens United , 558 U.S. at 337–38. Further, based on the limited record before us, it does appear that forming a political issues committee would impose some burdens with respect to the time and expense required to establish a new entity at this juncture.
Because the Registry’s spending restriction burdens the executive committees’ political
speech, it is valid only if “justified by a permissible interest.”
Cruz
, 142 S. Ct. at 1651–52.
Restrictions on campaign speech, including campaign expenditures, are evaluated under strict
scrutiny, and only restrictions narrowly tailored to a compelling state interest are valid.
Citizens
United
, 558 U.S. at 340;
Kruse
, 142 F.3d at 912–13. By contrast, a mandated campaign
disclosure is judged under exacting scrutiny, which requires a substantial relation between the
disclosure requirement and a sufficiently important government interest, and that the disclosure
requirement be narrowly tailored to the interest it promotes.
See Ams. for Prosperity Found. v.
Bonta
,
The Registry contends that we should apply only exacting scrutiny here because the restriсtion is better characterized as a disclosure regulation. Opp’n at 13. The Registry emphasizes the relatively few distinctions between executive committees and political issues committees and the importance of the disclosure regime that applies to the latter but not the former. Both are subject to the general requirements imposed on “committees” under Kentucky law, but as discussed above, a political issues committee intending to raise and spend more than $5,000 must report in the run-up to the election—60 days, 30 days, and 15 days preceding the date of the election. Ky. Rev. Stat. § 121.180(3)(b). By contrast, an executivе committee must report only on an annual or semiannual basis unless they make an independent expenditure expressly advocating the election or defeat of a candidate or slate of candidates. §§ 121.120(6)(j), 121.180(2).
We do not think that a ban on speech subject to the creation of a separate political issues
committee can be fairly described as a disclosure regulation. Disclosure regulations “may
burden the ability to speak,” but “do not prevent anyone from speaking.”
Citizens United
, 558
U.S. at 366 (citation omitted). Here, as discussed, the Registry’s requirements prevent the
executive committees from speaking on thе constitutional amendment. We are not aware of, and
the Registry has not pointed us to, any cases construing any similar restriction as simply a matter
of disclosure. And both
Citizens United
and
Massachusetts Citizens for Life
treat similar
requirements as limitations on speech, not mandated disclosure.
See Citizens United
, 558 U.S. at
337–38;
Massachusetts Citizens for Life
,
Because we view the Registry’s position as a restriction on campaign expenditures, we
apрly strict scrutiny. The Registry asserts that the restriction on the executive committees’
speech about state constitutional amendments, subject to the formation of a political issues
committee, furthers an interest in “disclosure.” Opp’n at 14. When reviewing disclosure
requirements, the Supreme Court has recognized a “sufficiently important” interest in providing
the electorate with information that could enable them to make “informed choices in the political
marketplace.”
Citizens United
,
We need not decide whether the interest in an informed citizenry could justify the restrictions here because the restrictions are not narrowly tailored to the interest asserted. When considering whether a regulation or restriction is narrowly tailored to the interest asserted, we consider the availability of less restrictive alternatives. See Bonta , 141 S. Ct. at 2386. In this case, the Registry could achieve the same ends—obtaining disclosures in the run-up to an election—by imposing a disclosure requirement on executive committees that raise and expend funds in support of an election. Indeed, the Registry already orders executive committees to make disclosures within 48 hours оf an independent expenditure on behalf of a candidate. Ky. Rev. Stat. § 121.120(6)(j). The Registry has provided no explanation why restricting the speech of an executive committee and requiring that it form a separate political issues committee achieves the ends of transparency any more successfully than a standard disclosure requirement. And, further, the Registry has offered no reason why Kentucky could not enact laws or regulations to require appropriate disclosure from executive committees when they speak on political issues.
* * *
Having concluded that the executive committees are likely to succeed on the merits of their First Amendment claim, we need not address the remaining injunction factors. We pause to note that our resolution of the issues at this stage is only preliminary and fuller consideration is warranted as this case proceeds. For now, we grant the motion for an injunction pending appeal.
The Registry is enjoined from taking any action to enforce Advisory Opinion 2024-02, including initiating civil proceedings, against the executive committees (HCRP, JCRP, and BCRP) for raising or expending funds in support of a constitutional amendment on the November 2024 ballot. The Clerk shall set an expedited briefing schedule in the pending aрpeal of the district court’s denial of the executive committees’ motion for a preliminary injunction.
Notes
[1] BCRP also intends to expend funds in support of a separate amendment that would prohibit non-citizens from voting in Kentucky elections. R. 1 (Ver. Compl. ¶ 18) (Page ID #6).
[2] In addition to the parties’ briefs and the record below, we have also considered the amicus brief filed by the Kentucky Attorney General in support of the executive committees.
[3]
The speech of HCRP and BCRP may not have been chilled because they “intend[] to make the
expenditures in question in favor of the constitutional amendments” regardless of judicial relief. R. 1 (Ver. Compl.
¶ 36) (Page ID #10);
see
Pls./Appellants’ Emergency Mot. for Inj. Pending Appeal at 11 (referencing only the chill
to JCRP’s speech). But because “only one plaintiff needs to have standing in order for the suit to move forward,” it
suffices that JCRP’s speech has been chilled.
Parsons v. U.S. Dep’t of Just.
,
[4] Four members of the Court joined in an Opinion that located the constitutional burden in both the heightened organizational requirements, as well as the additional disclosure requirements. See Massachusetts Citizens for Life , 479 U.S. at 254–56 (plurality opinion). Justice O’Connor filed a concurring opinion on the narrower ground that the “significant burden” arose “not from the disclosure requirements that [the organization] must satisfy, but from the additional organizational restraints imposed upon it by the” challenged statute. at 266 (O’Connor, J., concurring).