BOONE COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE, HARDIN COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE, and JESSAMINE COUNTY REPUBLICAN PARTY EXECUTIVE COMMITTEE, Plaintiffs-Appellants, v. H. DAVID WALLACE, LAURA MARIE BENNETT, JESSICA BURKE, RICHARD LARKIN, ADRIAN MENDIONDO, THOMAS O’BRIEN, J. BISSELL ROBERTS, and JOHN STEFFEN, in their official capacities as board members of the Kentucky Registry of Election Finance, Defendants-Appellees.
No. 24-5783
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 18, 2025
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 25a0063p.06
Argued: December 4, 2024
Decided and Filed: March 18, 2025
Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.
COUNSEL
ARGUED: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Covington, Kentucky, for Appellants. Leslie M. Saunders, KENTUCKY REGISTRY OF
MOORE, J., delivered the opinion of the court in which GILMAN, J., concurred. GRIFFIN, J. (pp. 32–40), delivered a separate dissenting opinion.
OPINION
KAREN NELSON MOORE, Circuit Judge. Three Kentucky Republican Party county executive committees (“the executive committees”) challenge the Kentucky Registry of Election Finance’s (“the Registry”) requirement that they register as a political issues committee to expend funds in support of a state constitutional amendment that was on the November 2024 general-election ballot. The district court denied the executive committees’ application for a preliminary injunction. Because we initially construed the Registry’s requirement as a ban on the executive committees’ speech, we granted an injunction pending appeal of the preliminary-injunction denial. Upon further briefing and oral argument, we now conclude that the Registry has imposed only a disclosure requirement on the executive committees, which is sufficiently tailored to the Registry’s interests in providing the public with timely and accurate information about ballot-issue campaigns. We accordingly AFFIRM the district court’s denial of the motion for a preliminary injunction.
I. BACKGROUND
A. Statutory and Regulatory Framework
This case concerns the constitutionality of a part of Kentucky’s campaign-finance regime and the Registry’s interpretation and enforcement thereof. Accordingly, some background is in order. The Registry is a state agency charged with regulating campaign-finance disclosures and investigating and civilly prosecuting campaign-finance violations.
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,
One type of committee is a “[p]olitical 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).”
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.
Executive committees generally report on a schedule that is not tethered to the election cycle. 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.
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). (Page ID #4). In official filings with the Registry, HCRP and JCRP state their purpose as “support[ing] or oppos[ing] KY candidates.” JCRP, Registry, https://perma.cc/EU2T-PD9U; HCRP, Registry, https://perma.cc/FBG7-VXS2. BCRP states that its purpose is to be a “Political Party.” BCRP, Registry, https://perma.cc/7SLX-8H7X.
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
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 exchange), filed a verified complaint
C. Procedural Background
Simultaneous with the filing of their verified complaint in the district court, the executive committees moved for a temporary restaining 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 them from making expenditures in favor of a constitutional amendment. Id. 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. Boone County Republican Party Exec. Comm. v. Wallace, Civ. A. No. 3:24-49 (GVT), 2024 WL 3912946, at *3–7 (E.D. Ky. Aug. 22, 2024). The district court reasoned that requiring the executive
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, with the support of the Kentucky Attorney General as amicus, then sought an injunction pending appeal pursuant to
Since the injunction pending appeal was granted, the election has passed, and Amendment 2 has failed. See Official 2024 General Election Results, Ky. State Bd. of Elections, https://perma.cc/QX77-ZF3D. The executive committees acknowledged at oral argument that, in the leadup to the election, they expended funds in favor of the constitutional amendments in reliance on this court’s injunction pending appeal. Oral Arg. Hr’g at 30:42–31:10.2 The preliminary-injunction appeal is now before us.3
II. STANDARD OF REVIEW
To prevail on a preliminary injunction, the moving party must show that (1) it has a strong likelihood of succeeding on the merits; (2) it is likely to suffer irreparable harm without an injunction; (3) the balance of equities favors an injunction; and (4) the public interest favors an injunction. Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021). We review the district court’s determination of the likelihood of success on the merits of the First Amendment claim de novo. Id. But we review the district court’s assessment of the other three factors as well as its ultimate determination under the abuse-of-discretion standard. Id. In First Amendment cases, the outcome generally turns on whether the moving party has shown a likelihood of success on the merits of their First Amendment claim because the remaining “issues of the public interest and harm to the respective parties largely depend on the constitutionality of the [state action].” Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012) (quoting Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007) (alteration in original)).
III. JURISDICTION
Before we reach the merits of the First Amendment claim, we must consider whether the moving party has demonstrated a likelihood of success of establishing this court’s jurisdiction. Hargett, 2 F.4th at 554. If the moving party cannot demonstrate a likelihood of jurisdiction, the preliminary-injunction motion must be denied. Id. Here, the Registry raises two jurisdictional challenges: standing and ripeness.
A. Standing
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 v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). An injury-in-fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 560 (citation omitted). An allegation of future injury might 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.” Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)).
We assess whether a plaintiff has Article III standing at the outset of the litigation. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000); Kentucky v. Yellen, 54 F.4th 325, 336 (6th Cir. 2022) (“Whether a party has standing to redress an injury is measured as of the time the injury is first asserted.”). At this stage, the executive committees can establish the requisite injury to bring a preenforcement challenge by demonstrating a likelihood that, at the time the complaint was filed, (1) they intended to engage in expression protected by the Free Speech and Association Clauses; (2) their expression was arguably proscribed by the challenged statutes, regulations, opinions, and actions of the Registry; and (3) they faced a credible threat of enforcement for exercising their constitutional rights. See Driehaus, 573 U.S. at 159.
The executive committees have sufficiently demonstrated that they intended to engage in protected speech. Specifically, in their verified complaint, the executive committees declared that they intended to, and took 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). Further supporting their initial stated intentions, counsel for the executive committees admitted at oral argument that the executive committees in fact expended funds and distributed communications in favor of Amendment 2 in advance of the election, after this court issued an injunction pending appeal. Oral Arg. Hr’g at 30:42–31:10
The executive committees have also demonstrated that their speech is arguably proscribed by the challenged statutes, regulations, opinions, and the actions of the Registry. Speech is arguably proscribed
Although the question is closer, at least one of the executive committees showed that its speech was chilled by a credible threat of enforcement at the outset of the litigation. 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 was chilled because, “fearing enforcement action,” it alleged that it would not expend funds in favor of the amendment “without injunctive relief.” R. 1 (Ver. Compl. ¶ 36) (Page ID #10).4 That JCRP ultimately engaged in the protected speech after we issued an injunction pending appeal does not undermine the conclusion that, at the time the lawsuit was filed, JCRP’s speech was chilled by the possibility of enforcement.
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 a 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, 995 F.3d 540, 550 (6th Cir. 2021).
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, 995 F.3d at 550 (quoting McKay v. Federspiel, 823 F.3d 862, 869 (6th Cir. 2016)). And here, the
which the executive committees claimed was likely.
The Registry takes issue with the second factor: whether defendants have issued a warning letter. See D. 28 (Defs.-Appellees’ PI Br. at 19–23). The Registry argues that the advisory opinion is not a warning letter for two reasons. First, the Registry contends that the advisory opinion was not the official opinion of the agency, because it was issued only by the general counsel and not by the Board pursuant to a formal enforcement proceeding. Id. at 19–20. The opinion is not a threat of enforcement, the Registry contends, but at most a defense to enforcement. Id. at 20. Second, the Registry argues that the advisory opinion is not even applicable as a defense to enforcement because HCRP and JCRP omitted material facts about the nature of their intended activity when they made the request for an advisory opinion. Id. at 20–21. Specifically, when requesting the advisory opinion, the executive committees did not disclose that they intended to produce and circulate materials advocating for both candidates and issues, or materials advising voters about straight-ticket voting. Id. at 21.
This argument elevates form over substance. As noted earlier, the advisory opinion addresses the central issue of whether the executive committees may spend money supporting or opposing a ballot issue without forming a political issues committee. Although the Registry seeks to disclaim the aptness of that opinion to the facts at hand, its statements in the leadup to and during this litigation suggest that the opinion remains on point. When counsel for the executive committees sought clarity on the application of this opinion to joint expenditures, counsel for the Registry doubled down, saying that such expenditures would be “dancing . . . close to a violation of the law.” R. 1-4 (Exhibit to Ver. Compl. at 1) (Page ID #24). In the hearing on the preliminary injunction before the district court, counsel for the Registry further explained that the executive committees were not allowed to produce and distribute communications advocating for both candidates and issues without registering as a political issues committee and making joint expenditures. R. 25 (PI Hr’g Tr. at 15–17) (Page ID #247–49). And in
The continued insistence on the illegality of the executive committees’ activity supports the credible threat of enforcement when viewed in tandem with the system of enforcement. Here, the general counsel for the agency has announced that it views the executive committees’ conduct as illegal, inviting politically motivated members of the public to file complaints and seek enforcement against them. Viewing the factors holistically, we conclude that the lack of a specific warning letter does not wash away the credible threat of enforcement here. Accordingly, the executive committees are likely to demonstrate standing to raise their First Amendment claim.
B. Ripeness
The Registry next contends that the dispute here is not yet ripe for review. Historically, ripeness has had constitutional and prudential components. The doctrine of constitutional ripeness, like standing, derives from the Article III requirement that federal courts review only actual cases or controversies. Miller v. City of Wickliffe, 852 F.3d 497, 506 (6th Cir. 2017). “The doctrine dictates that courts should decide only existing, substantial controversies, not hypothetical questions or possibilities.” City Commc’ns, Inc. v. City of Detroit, 888 F.2d 1081, 1089 (6th Cir. 1989). “[W]hen a case is anchored in future events that may not occur as anticipated, or at all,” the case is not ripe for review. Id.
In preenforcement First Amendment challenges, constitutional ripeness and constitutional standing coincide. Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016). “Whether the plaintiffs have standing and whether their claims are ripe come to the same question: Have they established a credible threat of enforcement?” Id.; see Driehaus, 573 U.S. at 157 n.5 (recognizing that standing and ripeness “boil[ed] down to the same question” in a constitutional preenforcement challenge). To the extent that the Registry challenges constitutional ripeness, we must reject the argument, for the executive committees have demonstrated a credible threat of enforcement.
The prudential-ripeness doctrine, by contrast, tests the hardship to the parties if judicial relief is withheld and the fitness of the issues for judicial review. Carman v. Yellen, 112 F.4th 386, 401 (6th Cir. 2024). The Supreme Court has called the doctrine “into question in recent years,” id. at 400, in recognition of the doctrine’s tension with the “principle that a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging,” Driehaus, 573 U.S. at 167 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S 118, 126 (2014)). Despite this uncertainty, we have “continued applying the doctrine[,] particularly when important future intervening events, such as impending regulatory action, will clarify the dispute or obviate the need for weighing in on contingencies.” Carman, 112 F.4th at 400.
The Registry argues that the challenge here is not ripe because the Registry’s Board has not reached a final decision about the legality of the executive committees’ joint ballot- and candidate-related communications. D. 28 (Defs.-Appellees’ PI Br. at 27–28). We do not think that the failure to issue a final interpretive decision renders the challenge prudentially unripe.
The Registry relies principally on a Second Circuit case applying the prudential-ripeness doctrine to a statutory and constitutional challenge to an advisory opinion issued by the Federal Election Commission. U.S. Def. Comm. v. Fed. Election Comm’n, 861 F.2d 765, 772 (2d Cir. 1988). In concluding that the challenge was not ripe, the Second Circuit reasoned that the advisory opinion was not final because the Commission could change its position in enforcement proceedings, that judicial review was available once a final decision was rendered, and that the Commission was presently engaged in rulemaking that “could alter the very regulations applied in [the advisory] opinion.” Id. at 771–72. Even setting aside our reservations about the continued application of the prudential-standing doctrine, U.S. Defense Committee is distinguishable. In that case, the Commission issued three different advisory opinions and was presently engaged in a rulemaking that was likely to affect the outcome of plaintiffs’ case. See id. at 767–70, 772. Amid such uncertainty, we are not surprised that the Second Circuit deemed the issues not yet fit for judicial resolution.6 Here, however, the Registry’s restrictions on the executive committees are likely ripe for review.
IV. LIKELIHOOD OF SUCCESS ON THE MERITS
Having dispatched with these jurisdictional challenges, we proceed to the likelihood of success on the merits of the First Amendment challenge. We conclude that the executive committees are not likely to prevail on their constitutional claim because, at this stage in the litigation, the executive committees have not demonstrated that the Registry banned their speech. Rather, it appears to us that the Registry has imposed a disclosure requirement that satisfies exacting scrutiny.
A. Rights of Executive Committees
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, 558 U.S. 310, 339 (2010); Citizens Against Rent Control/Coalition for Fair Hous. v. City of Berkeley, 454 U.S. 290, 298 (1981). The right to express opinions on such issues inheres in individuals, as well as in corporations and other associations, including political parties and committees formed to speak on a ballot issue. Citizens United, 558 U.S. at 342, 346–47; Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 604, 615–16 (1996) (plurality opinion); Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222 (1989); Citizens Against Rent Control, 454 U.S. at 299.
The Registry argues that no speaker’s First Amendment rights are burdened here because the “executive committee” is just a “reporting unit” of the political party, not the political party itself. See D. 28 (Defs.-Appellees’ PI Br. at 32–34). The Registry notes that the term “executive committee” is defined in Kentucky’s campaign-finance statute alongside seven other types of committees, including political issues committees, which are characterized by the identity of their members and the extent to which each can accept contributions and expend funds related to issues or candidates.
We decline to adopt such a narrow view of the executive committees’ rights. The executive committees are at least associations of individuals, who solicit and pool contributions from the public and expend those funds in service of their shared views. This type of association is unquestionably “entitle[d] to First Amendment protection.” Fed. Election Comm’n v. Nat’l Conservative Pol. Action Comm., 470 U.S. 480, 494 (1985) (recognizing that political action committees have expressive rights); see Catholic Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 430 n.27 (5th Cir. 2014) (“[T]he Supreme Court has regularly reminded the lower courts that organizations such as political committees and corporations have First Amendment rights to engage in political speech.”).
In any event, we think the Registry has overstated the distinction between the executive committees and the parties. As an initial matter, the Registry previously characterized county party executive committees as acting “as the functional units of the Republican party at the county level.” D. 17 (Defs.-Appellees’ Resp. to Mot. for Inj. Pending Appeal at 4); accord R. 14 (Defs.’ Mem. of L. in Supp. of Resp. to Pls.’ Mot. for Prelim. Inj. at 3) (Page ID #124). And the executive committees have assured us this is so: at oral argument, counsel for the executive committees contended that the county party executive committee and the county political party are actually “coextensive.” Oral Arg. Hr’g at 10:20; see id. at 10:30 (“[A]s a practical matter, [the executive committee] is the Boone County affiliate of the Republican Party”). Counsel asserted that all money raised by the county parties is reported under the umbrella of the executive committees, and all disclosure reports are similarly made by the executive committees, for activities including fundraisers, dinners, and candidate outreach. Id. at 10:01–32.
This view draws support from the regulation on which the Registry elsewhere relies. That regulation describes an executive committee as “an organizational unit or affiliate recognized within the document governing a political party,” whose tasks include “the day-to day operation of a political party.”
Although the Registry may view executive committees primarily as reporting units, it appears to us, based on the limited record before us, that they are more fairly construed as the governing bodies of the county republican parties. And prohibiting the governing body of a political party from raising and expending money concerning a state constitutional amendment is tantamount to prohibiting the party from doing the same. Eu, 489 U.S. at 222–23 (recognizing that law restricting speech of governing bodies of political party restricted the speech of the political party). “The independent expression of a political party’s views is ‘core’ First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees.” Colo. Republican Fed. Campaign Comm., 518 U.S. at 616.
B. Speech Restriction vs. Disclosure Regime
We next turn to whether the limitations set out here by the Registry burden speech protected by the First Amendment. The central question, on which our views have evolved since we issued the injunction pending appeal in this case, is whether the requirement that an executive committee register as a political issues committee to expend funds supporting or opposing a constitutional amendment is a ban on the executive committee’s speech or a campaign finance disclosure requirement.7 How we resolve this question determines the level of scrutiny that applies.
The key distinction between a ban on speech and a disclosure requirement is that, whereas “disclosure requirements may burden the ability to speak, [] they impose no ceiling on campaign-related activities and do not prevent anyone from speaking.” Citizens United, 558 U.S. at 366 (citations omitted). “To determine whether a rule is a disclosure requirement, or something more, we look to see the effect of the provision. Disclosure and disclaimer rules require the provision of information, and only incidentally prevent speech when the speaker is unwilling to provide the additional required information.” Catholic Leadership Coal. of Tex., 764 F.3d at 426; see also Pursuing Am.’s Greatness v. Fed. Election Comm’n, 831 F.3d 500, 507 (D.C. Cir. 2016) (disclosure rules “require the speaker to provide more information to the audience than he otherwise would”). “By contrast, provisions that put a ceiling on speech even if a party is willing to provide all of the information that the government requests constitutes something more than a simple disclosure requirement.” Catholic Leadership Coal. of Tex., 764 F.3d at 426–27.
Upon further reflection, briefing, and oral argument in this case, we are now persuaded that requiring the executive
Consider what is required here. When an executive committee collects more than $1,000 to support or oppose a ballot initiative, it must register as a political issues committee for that election, notify the public of what it plans to support or oppose, and indicate whether it plans to raise more than $5,000.
Courts uniformly recognize that provisions requiring entities to register a political committee, maintain an organizational structure for the committee, employ a treasurer, keep detailed records, and file reports listing contributors and expenditures fall within the ambit of disclosure requirements. See Buckley v. Valeo, 424 U.S. 1, 62–64 (1976) (characterizing a federal statute that imposed reporting obligations on political committees, defined as groups of
persons receiving contributions and making expenditures over $1,000 each year, as “disclosure requirements [that] impose no ceiling on campaign-related activities”); Nat’l Org. of Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011); Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 137 (2d Cir. 2014); The Real Truth About Abortion, Inc. v. Fed. Election Comm’n, 681 F.3d 544, 548–49 (4th Cir. 2012); Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 480 (7th Cir. 2012); Missourians for Fiscal Accountability v. Klahr, 892 F.3d 944, 949–50 (8th Cir. 2018); Human Life of Wash. v. Brumsickle, 624 F.3d 990, 997, 1002–06 (9th Cir. 2010); Coal. for Secular Gov’t v. Williams, 815 F.3d 1267, 1270, 1275 (10th Cir. 2016); Worley v. Fla. Sec’y of State, 717 F.3d 1238, 1244 (11th Cir. 2013); SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 696–97 (D.C. Cir. 2010). That makes sense: registration and organizational requirements facilitate the recordkeeping needed to ensure that disclosure of information is timely and accurate.
First, Citizens United concerned a prohibition on corporate expenditures for political speech. Citizens United, 558 U.S. at 321. In Citizens United, corporations were prohibited from spending profits earned through their ordinary business to participate in elections. The law directly foreclosed them from spending their own money to advocate for or against their preferred candidates. See id.;
are not prohibited from contributing to a political issues committee funds that they collected for the purpose of supporting or opposing the issue. The Registry has repeatedly stated that the executive committee could transfer funds collected in support of the proposed state constitutional amendment to the account of a political issues committee registered to support that amendment. R. 25 (PI Hr’g Tr. at 7) (Page ID #239); D. 28 (Def.-Appellees’ PI Br. at 43) (“[N]othing keeps the committees from transferring funds they improperly collected for spending on Amendment 2 to a [political issues committee].”). What the Registry has prohibited is the expenditure of funds “raise[d] for party nominees to support a constitutional amendment.” R. 1-3 (Exhibit to Ver. Compl. at 23) (Page ID #23) (emphasis added). Nothing in the
Second, the corporate PACs at issue in Citizens United were distinct entities from the corporation and were “limited to donations from stockholders and employees of the corporation.” Citizens United, 558 U.S. at 321; see also The Real Truth About Abortion, Inc., 681 F.3d at 549 (distinguishing these PACs because they “were subject to several limitations on allowable contributions”). Here, the Kentucky statute does not require the establishment of any similarly distinct entity. When the executive committee wants to raise and spend money in support of a political issue, it can simply register as a political issues committee. The political issues committee can share the same name and membership composition as the executive committee. According to the Registry, the political issues committee could be called the “Hardin County Republicans” or “Hardin County Republicans Support Amendment 2.” See R. 25 (PI Hr’g Tr. at 39) (Page ID #271). The committees could have “overlap[ping] officers” and “overlapping membership.” Id. at 40 (Page ID #272). Unlike the political action committees in Citizens United, the executive committee and the political issues committee
Third, the requirements of forming a political issues committee are less onerous as applied to the executive committees, as compared to the requirements in Citizens United. Whereas in Citizens United, 558 U.S. at 338–39, the corporations lacked the organizational structure and mechanics to engage in campaign disclosure, see McConnell v. Fed. Election Comm’n, 530 U.S. 93, 330–32 (2003) (Kennedy, J., concurring in part and dissenting in part), the executive committees here are already set up in the same form as the political issues committee and can hardly complain of a lack of expertise in this realm.
The dissenting opinion position reads Citizens United too broadly. It understands Citizens United to rest on the formal distinction between the corporation and the PAC through which it could ostensibly speak. Dissenting Op. at 36. That cannot be right. If it were, then every law requiring registration as a political committee would be unconstitutional, because the committee will always be a formally separate entity from the group, organization, or individual that formed it. We do not believe that the Supreme Court sub silentio declared unconstitutional all political-committee registration regimes, the predominant form of campaign-finance disclosure on the state and federal levels. See Buckley v. Valeo, 424 U.S. at 62–68 (upholding PAC requirements); cf. McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 194 (2014) (plurality opinion) (reviewing limits on contribution to political committees). The dissenting opinion offers no limiting principle that would avoid this absurd result. In distinguishing Citizens United, we do not suggest that the speech of political organizations has any less value than the speech of corporations or other natural persons, as the dissent misleadingly suggests. Dissenting Op. at 36. For the reasons explained above, the relationship between corporations and the PACs at issue in Citizens United is meaningfully different from the relationship between the executive committees and the political issues committees here. The dissenting opinion’s failure to acknowledge any of these differences shows how reductive its position is. The dissenting opinion relies only on the formal differences between a political issues committee and the executive committee that forms it. Citizens United rested less on the formal differences between a corporation and a PAC, and more on the actual, tangible differences between those organizations. Our prior opinion on the injunction pending appeal failed to appreciate fully those distinctions.
The determination whether a state is requiring disclosure or banning speech turns on the “effect of the provision.” Catholic Leadership Coal. of Tex., 764 F.3d at 426. “It is not the designation as a [political committee] but rather the obligations that attend [political committee] designation that matter for purposes of First Amendment review.” Nat’l Org. for Marriage, 649 F.3d at 56. The effect of the Registry’s regulation here is to “require the provision of information”; speech is only “incidentally prevent[ed]” insofar as the executive committees are unwilling to comply with the political issues committee requirements. See Catholic Leadership Coal. of Tex., 764 F.3d at 426. The dissenting opinion misconstrues the record by suggesting that the Registry threatened enforcement if the executive committees issued a flyer jointly advocating for its
Decisions from our sibling circuits strongly support this position. These courts have unanimously held that requiring a group of individuals or a preexisting organization to register as a political committee, with its attendant organizational and reporting requirements, does not ban the speech of the preexisting group or organization, but simply imposes a requirement to disclose. See, e.g., Worley, 717 F.3d at 1243–45 (group of individuals); The Real Truth About Abortion, 681 F.3d at 548–49 (nonprofit corporation); Vt. Right to Life Comm., 758 F.3d at 137 (nonprofit corporation and political committee); Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 871 n.5 (8th Cir. 2012) (en banc) (corporations). Citizens United does not hold otherwise. See Worley, 717 F.3d at 1243–44; The Real Truth About Abortion, 681 F.3d at 549; see also Nat’l Org. for Marriage, 649 F.3d at 55; Stop This Insanity Inc. Employee Leadership Fund v. Fed. Election Comm’n, 761 F.3d 10, 13–14 (D.C. Cir. 2014). The dissenting opinion offers no serious reason to distinguish these cases. It argues that they “analyze entirely different state campaign-finance regulatory schemes.” Dissenting Op. at 37. But that is not why we cite them here. These cases addressed, as we have, the extent to which Citizens United limits a state’s ability to require individuals, associations, and entities to register as political committees before engaging in political fundraising and speech. These courts rejected the expansive reading that the dissenting opinion urges.
The executive committees seek to distinguish the authority from our sibling circuits on the basis that those cases did not involve—“as this case does—a restriction on the content of speech by a committee already registered, and that already reports contributors and expenditures, with the state.” D. 29 (Pls.-Appellants’ PI Reply at 20) (contending that this case “challenges the ability of the state to prohibit the content of political speech by already registered committees”). This argument proves too much. It suggests that any committee, once registered, must be allowed to expend funds on any candidate or issue; that if a committee registers to support candidate Jane Doe, then it must also be able to spend money on Issue 2. This position would call into question not only Kentucky’s entire taxonomy of committees,
The executive committees, the dissenting opinion, and the Commonwealth of Kentucky as amicus, also suggest that the present case is sui generis because it involves political parties. They contend that political parties must be able to expend funds in support of ballot initiatives because ballot initiatives are interrelated with support for party candidates, and that
The executive committees finally argue that Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986), supports their position. In that case, the Court analyzed a federal law requiring corporations to establish a “political committee” before making independent expenditures on behalf of candidates. Mass. Citizens for Life, 479 U.S. at 253. A majority of the Court concluded that heightened regulatory requirements associated with establishing a more formalized organization burdened the non-profit organization’s First Amendment activities. Id. at 254–56 (plurality opinion), 265–66 (O’Connor, J., concurring).10 Massachusetts Citizens for Life is distinguishable from the Kentucky Registry case, however. First, as in Citizens United, the alternative route of forming a political committee in Massachusetts Citizens for Life was seriously limiting compared with the option here. The political committee form in Massachusetts Citizens for Life was restricted to soliciting contributions from members, which “vastly reduce[d] the source of funding for organizations with few or no formal members.” Id. at 255. No such restrictions on the solicitation of funds by a political issues committee apply here; indeed, political issues committees may solicit unlimited funds, including from corporate donors, unlike executive committees that cannot take corporate contributions or contributions greater than $5,000.
form, to adopt specific accounting procedures, [and] to file periodic detailed reports.” Mass. Citizens for Life, 479 U.S. at 255. Third, that case concerned an apparently arbitrary distinction between incorporated versus unincorporated entities. Id. at 252–53. The executive committees here are being treated no differently from any other group of “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).”
In reaching these conclusions, we emphasize what this case does not involve. The Registry has not limited speech beyond the executive committees’ “willing[ness] to register, report information, keep necessary records, and take organizational steps.” Missourians for Fiscal Accountability, 892 F.3d at 950. The Registry has not imposed, for example, waiting periods on groups seeking to speak in an election. Compare id. (rule requiring committee to be formed at least 30 days before an election); Catholic Leadership Coal. of Tex., 764 F.3d at 427 (rule prohibiting committee from expending funds until 60 days after registration). Nor has the Registry limited what a committee may say as part of its message. Compare Pursuing Am.’s Greatness, 831 F.3d at 508 (rule prohibiting unauthorized political committee from using candidate’s name in the title of its webpages). Finally, the Registry has not imposed registration requirements that are so onerous as applied to the plaintiffs that they might be characterized as a ban on speech. Compare Minn. Citizens Concerned for Life, Inc., 692 F.3d at 875 (rule requiring ongoing reporting after a group made a $100 aggregate expenditure).
Nor does this case involve content- and speaker-based discrimination. The executive committees and the dissenting opinion also argue that strict scrutiny applies because the Registry’s position that an executive committee may expend funds on candidates, but not on ballot questions, is a content- and speaker-based restriction on speech. D. 26 (Pls.-Appellants’ PI Br. at 19–25). The executive committees contend that the restriction is content based because their speech is banned based on the “topic discussed or idea or message expressed.” Id. at 20. Specifically, the Registry has taken the position that an executive committee may print flyers encouraging citizens to vote for a candidate because they support Amendment 2, but cannot print flyers directly endorsing Amendment 2. Id. at 21–22. The executive committees and the dissenting opinion then contend that the restriction is speaker based because executive committees of political parties are prohibited from making expenditures in favor of a constitutional amendment, but an individual or a political issues committee is not. Id. at 23. Neither of these challenges gets off the ground because, as we have explained, the Registry has not banned the executive committees’ speech once they register as political issues committees.
Ultimately, the position that the executive committees and dissenting opinion ask us to adopt has no meaningful stopping point short of concluding that all committee-based disclosure schemes violate the
C. Application of Exacting Scrutiny to the Disclosure Regime
Because we have concluded that the Registry imposes a disclosure requirement, we apply exacting scrutiny rather than strict scrutiny. Buckley v. Valeo, 424 U.S. at 64. Exacting scrutiny 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. Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2385 (2021); see also Citizens United, 558 U.S. at 366. “While exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest.” Bonta, 141 S. Ct. at 2383. “We . . . require a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.” Id. at 2384 (quoting McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 218 (2014) (plurality opinion)).
The Registry contends that its disclosure requirement is justified by a sufficiently important interest in transparency and ensuring that the public is informed about who is supporting and opposing ballot initiatives, so that they can “make informed election choices.” See D. 28 (Defs.-Appellees’ Br. at 39–41, 44). The executive committees do not contest that this is a sufficiently important interest to justify a disclosure requirement. Nor could they: beginning in Buckley v. Valeo, the Supreme Court recognized that disclosure vindicates an interest in providing the electorate with information about who supports a candidate for office and how they spend money; this permits voters better to evaluate the candidate and the interests they might support. Buckley v. Valeo, 424 U.S. at 66–67; see also Citizens United, 558 U.S. at 367. Similar considerations apply forcefully in the context of ballot initiatives.
In direct democracy, voters are “responsible for taking positions on some of the day’s most contentious and technical issues” amid an onslaught of communications from individuals and interest groups seeking to influence their decisions. Human Life, 624 F.3d at 1006. “[A]verage citizens are subjected to advertising blitzes of distortion and half-truths and are left to figure out for themselves which interest groups pose the greatest threats to their self-interest.” Id. (quoting David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money 18 (2000)). In these high-stakes contests, just as in candidate elections, voters have an unmistakable interest in knowing who is backing the messages coming their way. Id.
Disclosure laws bear a substantial relation to the public’s informational interest in a ballot-initiative campaign. Ctr. for Indiv. Freedom, 697 F.3d at 480. Because ballot committees frequently carry misleading names, disclosure laws are critical in exposing who is spending money to support or oppose an initiative. Id. at 480–81; see Citizens Against Rent Control, 454 U.S. at 298 (noting that, in ballot-measure campaigns, “when individuals or corporations speak through committees, they often adopt seductive names that tend to conceal the true identity of the source”). Identifying the interest groups backing a particular issue offers a powerful cue about who stands to win or lose as
The Supreme Court has indicated its approval of state disclosure laws relating to ballot initiatives, even if it has not passed on them directly. When striking down limitations on contributions and expenditures for ballot initiative campaigns, the Court has pointed to disclosure laws to achieve the ends of “mak[ing] known the identity of supporters and opponents of ballot measures.” Citizens Against Rent Control, 454 U.S. at 298–99 (concluding that the city’s interest in limiting contributions was “insubstantial” because voters could obtain the identities of supporters through disclosure lists published before an election); see First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 792 n.32 (1978) (suggesting that disclosure requirements remedy concerns about excessive corporate spending in referenda elections). And when the Court held unconstitutional a Colorado law requiring disclosure of the names of paid petition circulators, it took comfort in the remaining disclosure requirements identifying who had contributed funds to the campaign. Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 203 (1999). “[D]isclosure is a less restrictive alternative to more comprehensive regulations of speech.” Citizens United, 558 U.S. at 369.
The values of disclosure are not costless, however, principally because disclosure requirements can burden associational rights. “[P]ublic disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute.” Buckley v. Valeo, 424 U.S. at 68. And there is a risk that “disclosure of [a committee’s] contributors’ names ‘will subject them to threats, harassment, or reprisals from either Government officials or private parties.’” Citizens United, 558 U.S. at 367 (citation omitted).
The executive committees do not claim that disclosing contributions or expenditures will in any way discourage people from donating or subject their donors to any harassment. Indeed, their proposed alternative is a requirement that the executive committee “report more frequently.” D. 26 (Pls.-Appellants’ Br. at 41). Instead, they claim that “a complete prohibition on spending in favor of constitutional amendments” is not narrowly tailored to the Registry’s interests in maintaining an informed citizenry. Id. Yet, as we have explained, the registration requirements do not operate as a ban on the executive committees’ speech.
Some courts have also held that a committee-disclosure regime is unconstitutionally burdensome when applied to individuals or small organizations, for whom the registration and reporting requirements are sufficiently burdensome to discourage the group from engaging in political speech. See Coal. for Secular Gov’t, 815 F.3d at 1278 (“[A]ny reporting burdens must be measured against the government’s interest in that disclosure.”); see also Minn. Citizens Concerned for Life, Inc., 692 F.3d at 873, 876–77. The registration and reporting scheme here is not so onerous as applied to the executive committees as to give us pause. Although the executive committees characterize the various reporting requirements associated with political issues committee registration as burdensome, see D. 26 (Pls.-Appellants’ Br. at 31–35), they have made no showing that any one of these requirements would be burdensome enough to deter their political
V. PRELIMINARY INJUNCTION FACTORS
Having concluded that the executive committees are not likely to succeed on the merits of their
Even apart from the merits, we doubt that the executive committees continue to meet the “indispensable” requirement of irreparable harm now that the November 2024 election has passed. Fischer v. Thomas, 78 F.4th 864, 868 (6th Cir. 2023) (citation omitted). We considered a similar situation in Fischer, which concerned a
Here, the executive committees have expressed a general intention to “continue to make expenditures in future election cycles on issues and issues-related campaigns, including on constitutional amendments, tax proposals, and the like, anytime such issues have an intersection with the Republican Party’s platform.” R. 1 (Compl. ¶ 37) (Page ID #10). But they have not identified any pending election or ballot question on which they seek to advocate while the litigation is ongoing in the district court. Accordingly, we are doubtful that the executive committees can demonstrate the requisite likelihood of irreparable harm in any event.
For the foregoing reasons, we AFFIRM the district court’s denial of the motion for a preliminary injunction and VACATE the injunction pending appeal.
Boone Cnty. Republican Party v. Wallace
DISSENT
GRIFFIN, Circuit Judge, dissenting.
Contrary to the
I.
As explained in our prior opinion, upon the request of two plaintiffs here, the Kentucky Registry of Election Finance issued an “advisory opinion” explaining that political parties’ executive committees (which are responsible for the parties’ day-to-day operations and raising money to promote their nominees) may not spend funds to support or oppose proposed state constitutional amendments. See Boone Cnty., 116 F.4th at 591–92. Do not be fooled by the nomenclature of an “advisory” opinion. The requester of the advisory opinion is expected to follow it, see
To that end, the Registry refused to assure plaintiffs that it would not take enforcement action against them if their executive committees spent funds on this mailer that advocated both for Republican candidates and proposed amendments to Kentucky’s constitution:
II.
A.
With their
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, 558 U.S. 310, 339, 130 S. Ct 876, 175 L.Ed.2d 753 (2010); Citizens Against Rent Control/Coalition for Fair Hous. v. City of Berkeley, 454 U.S. 290, 298, 102 S. Ct. 434, 70 L.Ed.2d 492 (1981). The right to express opinions on such issues is not limited to individuals but inheres also in corporations and other associations. Citizens United, 558 U.S. 342, 346–47, 130 S. Ct. 876 (affordingFirst Amendment protection to corporate expression); Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 222 109 S. Ct. 1013, 103 L.Ed.2d 271 (1989) (same as to political parties); Citizens Against Rent Control, 454 U.S. at 299, 102 S. Ct. 434 (same as to committees formed to speak on a ballot issue). Accordingly, it is likely that the executive committees have a right to express themselves on topics related to the election, including advocacy for or against a constitutional amendment.* * *
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, 130 S. Ct. 876. 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.
Our analysis of this issue was consistent with Citizens United v. Federal Election Commission, wherein the Supreme Court held: “The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” 558 U.S. at 319. Prior to Citizens United, federal law required corporations to form political action committees, or “PACs,” to spend funds on electioneering communications. Id. at 321. But that “amorphous regulat[ion]” banned corporations’ political speech by forcing them to create an entirely new entity to engage in such speech. Id. at 324, 337. As a clear speaker-based restriction on corporate political speech, the Supreme Court declared the obvious: “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.” Id. at 341.
Unfortunately, and contrary to Citizens United, my colleagues have now backtracked, sanctioning the Registry’s trammeling
The Registry has not prohibited the executive committee from stating whether it supports or opposes any constitutional amendment. Cf. [Eu, 489 U.S.] at 224–25 (holding that a law prohibiting a political party from endorsing candidates “burden[ed the party’s] rights to free speech and free association”). And, to the extent it wants to back up that position with funds, the party’s executive committee may register a political issues committee to do so.
This reasoning fundamentally misunderstands the
Moreover, the majority holds that Kentucky can prohibit political organizations from speaking so long as they may form a separate entity to advance their views. That holding too is contrary to Citizens United, which concerned
The majority contends that Citizens United does not control because that case involved speech by a corporation, while this case concerns speech by political organizations, implying that the
The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of information and ideas that the
First Amendment seeks to foster. The Court has thus rejected the argument that the political speech of corporations or other associations should be treated differently under theFirst Amendment simply because such associations are not natural persons.
Id. at 342–43 (internal citations and quotation marks omitted). Indeed, the majority ignores that, “[i]n the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784–85 (1978).
The majority believes that decisions from our sister circuits are on point, while Citizens United is distinguishable. To the detriment of the
To reiterate: “The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether”; “corporations and other associations, like individuals,” are entitled to this
B.
Moreover, let us not lose track of the speech at issue here. The Registry’s advisory opinion precludes political executive committees from spending their funds—and, in turn distributing mailers—in support of proposed constitutional amendments. This prohibition is an unconstitutional content- and speaker-based restriction of political speech.
Start with content based. Content-based restrictions “treat[] speech differently based on the viewpoint or subject matter of the speech, on the words the speech contains, or on the facts it conveys.” Planet Aid v. City of St. Johns, 782 F.3d 318, 326 (6th Cir. 2015) (citation omitted). A law may be content based even if it is viewpoint neutral. Id. The majority misunderstands the effect of Kentucky’s advisory opinion and accompanying campaign-finance regime when it concludes that these rules constitute a disclosure requirement and not a content-based prohibition of speech. Although the restriction is viewpoint neutral—it forbids advocacy both for and against an amendment—
And it is equally clear that the Registry is implementing an unlawful speaker-based
Whether one views the advisory opinion as a content-based restriction, speaker-based restriction, or both, it is subject to strict scrutiny. See Boone Cnty., 116 F.4th at 597. And as we previously held, the regulation here likely fails to survive such scrutiny. See id. at 596–99. The district court therefore should have enjoined the Registry’s enforcement of the advisory opinion against plaintiffs, allowed them to spend funds on the mailers, and relieved them from potential prosecution for violations of Kentucky campaign-finance law.
C.
In his amicus brief for the Commonwealth of Kentucky, Kentucky’s Attorney General opposes, on
The Registry’s argument that local political parties do not typically advocate on political issues ignores reality. “[T]he basic nature of the party system” is that “party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs.” McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 226 (2014) (plurality opinion). From their founding (e.g., the Republican Party’s opposition to slavery) to the present (e.g., the Green Party’s promotion of eco-social issues), political parties advocate and seek to implement a collection of political issues, expressed in their party platform. And as one former Speaker of the United States House of Representatives put it, “all politics is local.” Tip O’Neill, All Politics is Local: And Other Rules of the Game (Adams Media Corp., 1995). Divorcing a local political party from its political issues destroys a fundamental function of a political party.
III.
Because Kentucky has dictated and limited the speakers who may speak on proposed state constitutional amendments, I respectfully dissent. I would reverse the district court’s denial of plaintiffs’ motion for a preliminary injunction.1 After applying
claims. Therefore, I would allow plaintiffs to engage in their constitutionally protected and desired political speech.