Schickel et al v. Dilger et al

Filing 122

MEMORANDUM OPINION & ORDER: 1) Defs motion for summary judgment 62 and Plfs motion for summary judgment and injunction 63 with respect to KRS § 121.150(6) be, and are hereby, DENIED as moot; 2) Defs' motion for summary judgment 62 and Plfs motion for summary judgment and injunction 63 with respect to KRS § 121.150(11) and KRS § 121.015(3)(b) be, and are hereby GRANTED in part and DENIED in part, in line with the analysis above; 3) Defs motion fo r summary judgment 62 and Plfs motion for summary judgment and injunction 63 with respect to KRS § 121.150(13) 62 be, and are hereby, DENIED as moot; 4) Defs motion for summary judgment 62 and Plfs motion for summary judgment and injunction 63 with respect to KRS § 121.150(23) 62 be, and are hereby, DENIED as moot; 5) Defs motion for summary judgment 64 with respect to KRS § 6.751(2) be, and is hereby, DENIED; 6) Plfs motion for summary judgment and injunction 65 with respect to KRS § 121.751(2) be, and is hereby, GRANTED; 7) Defs motion for summary judgment 64 with respect to KRS § 6.811(4) be, and is hereby, DENIED; 8)Plfs motion for summary judgment and injunc tion 65 with respect to KRS § 6.811(4) be, and is hereby, GRANTED; 9) Defs motion for summary judgment 64 with respect to KRS § 6.767(1) be, and is hereby, DENIED; 10)Plfs motion for summary judgment and injunction 65 wi th respect to KRS § 6.767(1) be, and is hereby, GRANTED; 11) Defs motion for summary judgment 64 with respect to KRS § 6.811(6) be, and is hereby, DENIED; 12)Plfs motion for summary judgment and injunction 65 with respect to KRS § 6.811(6) be, and is hereby, GRANTED; 13) Defs motion for summary judgment 64 with respect to KRS § 6.767(2) be, and is hereby, GRANTED; 14)Plfs motion for summary judgment and injunction 65 with respect to KRS
67; 6.767(2) be, and is hereby, DENIED; 15) Defs motion for summary judgment 64 with respect to KRS § 6.811(7) be, and is hereby, GRANTED; 16)Plfs motion for summary judgment and injunction 65 with respect to KRS § 6.811(7 ) be, and is hereby, DENIED; 17) Defs motion for summary judgment 64 with respect to KRS § 6.811(5) be, and is hereby, DENIED; 18)Plfs motion for summary judgment and injunction 65 with respect to KRS § 6.811(5) be, and is hereby, GRANTED; and 19)The parties shall confer and draft a permanent injunction that comports with this Opinion and Fed. R. Civ. P. 65, and they shall file the proposed injunction within 20 days of entry of this Order. This shall not constitute a waiver of any partys right to contest or appeal the rulings adverse to them. Signed by Judge William O. Bertelsman on 6/6/2017.(ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON

CIVIL ACTION NO. 2:15-cv-155 (WOB-JGW)

SEN. JOHN SHICKEL, ET AL

VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

CRAIG C. DILGER, ET AL

DEFENDANTS

This is a civil rights action in which Plaintiffs allege that
Kentucky restrictions on campaign finance and lobbyists violate
their First Amendment right to free speech and association, as
well as their Fourteenth Amendment right to Equal Protection.
This matter is before the Court on separate motions for
summary judgment on behalf of Defendant Kentucky Registry of
Election Finance (Doc. 62) and Defendant Kentucky Legislative
Ethics Commission (Doc. 64), and corresponding cross motions for
a

preliminary

injunction,

permanent

injunction,

and

summary

judgment by Plaintiffs (Docs. 63, 65).
Having reviewed this matter, and having previously heard oral
argument from the parties, the Court now issues this Memorandum
Opinion and Order.

1 

Factual and Procedural Background
A.

The Parties
Plaintiff John Schickel (“Schickel”) is the incumbent State

Senator for the 11th Senatorial District in Kentucky. Plaintiff
David

Watson

(“Watson”)

is

a

Libertarian

candidate

who

ran,

unsuccessfully, for the 6th House District in 2016.1 Plaintiff Ken
Moellman (“Moellman”) is a candidate for the office of Pendleton
County Judge/Executive in 2018.
Plaintiffs allege they desire to engage in activities that
are currently prohibited by funding restrictions found in certain
campaign finance statutes, as well as ethics statutes that apply
to legislators, legislative candidates, their spouses, lobbyists,
and the employers of lobbyists. (Doc. 65-1 at 1-3).
Defendants are members of the Kentucky Registry of Election
Finance (“KREF”) and the Kentucky Legislative Ethics Commission
(“KLEC”). Plaintiffs allege that Defendants, who are sued in their
official capacities, are responsible for the enforcement of the
challenged statutes because they can bring civil or administrative
enforcement actions, receive citizen complaints regarding alleged

1 See also Kentucky House of Representatives Elections, 2016,
BALLOTPEDIA
(last
visited
May
31,
2017),
https://ballotpedia.org/Kentucky_House_of_Representatives_elec
tions,_2016.
2 

violations,

and

prosecution.

(Id.).

B.

refer

enforcement

matters

for

criminal

The Statutes
Plaintiffs challenge two categories of statutes: campaign

finance restrictions and lobbying restrictions.
The

campaign

finance

restrictions:

(1)

limit

campaign

contributions from individual donors to $1,000 per election; (2)
limit campaign contributions from state executive committees or
caucus campaign committees to $5,000 per election; (3) limit the
amount a candidate may loan to his own campaign to $10,000 per
election; (4) and prohibit campaign contributions from a permanent
committee which, in the aggregate, exceed 50% of a candidate’s
total contributions, or $10,000, whichever is greater.
On March 27, 2017, new legislation that made substantial
changes to the campaign finance restrictions at issue was signed
into law by the Governor of Kentucky. The revisions to KRS §
121.150, found in 2017 Senate Bill 75, are taken into account in
the Court’s analysis.
The lobbying restrictions, which only Schickel and Watson
challenge: (1) prohibit a legislator or his spouse from accepting
“anything of value” from a legislative agent2 or his employer; (2)

2 “The definition of legislative agent under KRS 6.611(22)(a) . .
. [is] individuals who are engaged for compensation to
participate in lobbying activities on behalf of an organized
association, coalition, or public interest entity formed for
3 

prohibit a member of the General Assembly, a candidate for the
General Assembly, or his campaign committee, from accepting a
campaign contribution from a legislative agent at any time, or
from a lobbyist’s employer during a regular session of the General
Assembly; (3) prohibit lobbyists and their employers from offering
anything of value to legislators, candidates, or their spouse or
child,

or

making

campaign

contributions

to

legislators,

candidates, or campaign committees; and (4) prohibit lobbyists
from soliciting contributions for candidates or legislators.
C.

Procedural History
Plaintiffs filed their complaint on August 24, 2015, alleging

the unconstitutionality of the challenged statutes, seeking either
a temporary restraining order or preliminary injunction to enjoin
enforcement of the statutes. (Doc. 1). Defendants moved to dismiss
for lack of standing. (Doc. 17). This Court denied the motion to
dismiss. (Doc. 25). Defendants now move for summary judgment. (Doc.
62, 64). Plaintiffs also move for summary judgment, in addition to
seeking preliminary and permanent injunctions. (Doc 63, 65).

the purpose of promoting or otherwise influencing legislation,
and the nature and identity of such entity, the subject matter
of bill numbers of the legislation to be lobbied, and the source
of the entity or association's funds and financial resources
must be reported to the commission.” Editor’s Note to KRS §
6.807.
4 

Analysis
A.

Appropriate Levels of Scrutiny
For claims relating to campaign finance restrictions, the

Supreme Court applies strict scrutiny to limitations on candidate
speech (i.e., campaign expenditures), and mid-level scrutiny for
donor speech (i.e., campaign contributions), requiring that the
limit

be

“closely

drawn

to

avoid

unnecessary

abridgement

of

associational freedoms.” McCutcheon v. Fed. Election Comm'n, ___
U.S. ___, 134 S. Ct. 1434, 1437 (2014).
For claims relating to lobbying restrictions, laws which may
curtail the freedom of association are subject to strict scrutiny.
Nat'l Ass'n for Advancement of Colored People v. State of Ala. ex
rel. Patterson, 357 U.S. 449, 461 (1958); Fed. Election Comm'n v.
Nat'l Right to Work Comm., 459 U.S. 197, 206 (1982).
Further, the Sixth Circuit applies strict scrutiny to burdens
on “core political speech,” requiring that a burdensome provision
be narrowly tailored to serve the overriding state interest. Gables
v. Patton, 142 F.3d 940, 945 (6th Cir. 1998).
B.

Campaign Finance Restrictions
1.

$1,000 per donor contribution limit – KRS § 121.150(6)

Previously, KRS § 121.150(6) stated:
No candidate, slate of candidates, campaign committee,
political issues committee, nor anyone acting on their
behalf, shall accept a contribution of more than one
thousand dollars ($1,000) from any person, permanent
committee, or contributing organization in any one (1)
5 

election.
No
person,
permanent
committee,
or
contributing organization shall contribute more than one
thousand dollars ($1,000) to any one (1) candidate,
campaign committee, political issues committee, nor
anyone acting on their behalf, in any one (1) election.
Prior to the revisions enacted by Senate Bill 75, KRS §
121.150(6) prevented a candidate from receiving a contribution
greater than $1,000 from any single person, permanent committee,
or organization within an election cycle.
Plaintiffs

argued

that

the

$1,000

limitation

to

each

candidate per donor placed an undue burden on candidates for office
because the buying power of $1,000 is not the same today as it was
in 1996 when the limit was first introduced. Plaintiffs asserted
that the limit was not closely drawn to avoid abridgment of First
Amendment rights because the amount was so low that it prevented
candidates “from mounting effective campaigns.”
Senate Bill 75 has raised the $1,000 limit to $2,000, and it
requires that the limit be indexed for inflation on a bi-annual
basis. This revision thus directly addresses Plaintiffs’ concern
of the limit’s insufficiency and its potential restraint on speech.
Therefore, the Court will deny as moot all motions for summary
judgment with respect to KRS § 121.150(6).
2.
$5,000 caucus campaign committee contribution limit –
KRS 121.150(11) & 121.015(3)(b)
Currently, KRS § 121.150(11) states:
(a)
thousand

No person shall contribute more than five
dollars ($5,000) to the state executive
6 

committee of a political party in any one (1) year. The
contribution limit in this paragraph shall not apply to
a contribution designated exclusively for a state
executive committee’s building fund account established
under Section 4 of this Act.
(b) No person shall contribute more than five
thousand dollars ($5,000) to a subdivision or affiliate
of a state political party in any one (1) calendar year.
(c) No person shall contribute more than five
thousand dollars ($5,000) to a caucus campaign committee
in any one (1) year.
KRS § 121.150(11) allows individual donors to give up to
$5,000 per year to either a state political party’s executive
committee or a caucus campaign committee.
Plaintiffs assert that this provision constitutes viewpoint
discrimination in violation of the Equal Protection Clause by
allowing

individuals

to

give

larger

contributions

to

the

Republican and Democratic parties, the only political parties in
Kentucky that maintain such committees. Plaintiffs believe this
creates a grave disadvantage for third party candidates such as
Watson. 
The government commits viewpoint discrimination when it gives
preference to certain speakers over others. Citizens United v.
Fed. Election Comm'n, 558 U.S. 310, 312 (2010). Here, KRS §
121.150(11) allows two specific political parties to receive the
highest contributions: executive committees of political parties
and campaign caucus committees. Subsection 121.015(3)(b) defines

7 

“caucus campaign committee” narrowly to include only four specific
groups:
“Caucus campaign committee,” which means members of
one (1) of the following caucus groups who receive
contributions and make expenditures to support or
oppose one (1) or more specific candidates or slates
of candidates for nomination or election, or a
committee:
1. House Democratic caucus campaign committee;
2. House Republican caucus campaign committee;
3. Senate Democratic caucus campaign committee; and
4. Senate Republican caucus campaign committee.
KRS § 121.015(3)(b).
The statute thus does not allow for the same contributions to
other party caucus campaign committees that may be created in the
future.3

A

newly

created

Senate

Libertarian

caucus

campaign

committee, for example, would not be eligible for the $5,000
contribution caps, and instead could only receive up to $2,000
from each donor if it were to qualify as a permanent committee.
See KRS § 121.150(10).
Equal protection challenges to election finance restrictions
under the Fourteenth Amendment must survive “exacting scrutiny.”
Buckley v. Valeo, 424 U.S. 1, 44-45 (1976). “The restriction can
be sustained only if it furthers a vital governmental interest
that is achieved by a means that does not unfairly or unnecessarily

3

KRS § 121.150(11) taken alone on its face is constitutional
because the subsection does not preclude the creation of a minor
party caucus campaign committee.
8 

burden either a minority party's or an individual candidate's
equally

important

political

interest

opportunity.”

Id.

in

the

at

94

continued
(internal

availability

of

quotations

and

citations omitted).
Defendants

argue

that

the

purpose

of

caucus

campaign

committees is to “separate the legislative caucus from control by
a political party’s executive committee.” (Doc. 67-1 at 21). While
this

argument

may

explain

the

purpose

of

caucus

campaign

committees, it does not explain the exclusionary definition found
in subsection (3)(b). The legislature could have defined “caucus
campaign

committees”

in

a

broader

way

that

would

allow

its

application to committees affiliated with political groups other
than the Republicans or Democrats.
Defendants further argue that nothing prevents either of the
major party caucus campaign committees from contributing to minor
party candidates. Though true, it remains that subsection (3)(b)
on its face treats members of major and minor parties differently.
Defendants have not demonstrated that this differential treatment
is supported by a vital government interest.
Therefore, KRS § 121.015(3)(b) is unconstitutional on its
face.4

4 Senate Bill 75 recently increased the limit in KRS § 121.150(11)
from the previous cap of $2,500 to the current limit of $5,000.
The increase in the fundraising limit from $2,500 to $5,000 thus
creates an even larger benefit for the two majority parties.
9 

Therefore,

regarding

KRS

§

121.150(11)

and

KRS

§

121.015(3)(b), the Court will grant in part and deny in part both
Defendants’ and Plaintiffs’ motions for summary judgment in line
with the analysis above.
3.
$10,000 limit on self-funding campaign loans – KRS §
121.150(13)
Previously, KRS § 121.150(13) stated:
No candidates running as a slate for the offices of
Governor and Lieutenant Governor shall make combined
total personal loans to their committee in excess of
fifty thousand dollars ($50,000) in any one (1)
election. No candidate for any other statewide elected
state office shall lend to his committee any amount in
excess of twenty-five thousand dollars ($25,000) in any
one (1) election. In campaigning for all other offices,
no candidate shall lend to his committee more than ten
thousand dollars ($10,000) in any one (1) election.

KRS § 121.150(13) imposed limitations on the amount of money
a candidate could loan their own campaign committee, capped at
various amounts depending on the office. Id. Both parties recognize
that in 2004 the Sixth Circuit found this section of the statute
to be wholly unconstitutional, Anderson v. Spear, 356 F.3d 651,
673 (6th Cir. 2004), although Plaintiffs expressed concern that
Defendant KREF may arbitrarily enforce the statute regardless.
Senate Bill 75 has eliminated KRS § 121.150(13). Therefore,
the Court will deny as moot all motions for summary judgment with
respect to that provision.

10 

4.
$10,000 or 50% limit on permanent/executive/caucus
campaign committee receipts – KRS 121.150(23)
Previously, KRS § 121.150(23)(a)-(c) stated:
(a) A candidate or a slate of candidates for
elective public office shall not accept contributions
from permanent committees which, in the aggregate,
exceed fifty percent (50%) of the total contributions
accepted by the candidate or a slate of candidates in
any one (1) election or ten thousand dollars ($10,000)
in any one (1) election, whichever is the greater amount.
The percentage of the total contributions or dollar
amounts of contributions accepted by a candidate or a
slate of candidates in an election that is accepted from
permanent committees shall be calculated as of the day
of each election. Funds in a candidate's or a slate of
candidates' campaign account which are carried forward
from one (1) election to another shall not be considered
in calculating the acceptable percentage or dollar
amount of contributions which may be accepted from
permanent committees for the election for which the
funds are carried forward. A candidate or a slate of
candidates may, without penalty, contribute funds to his
campaign account not later than sixty (60) days
following the election so as not to exceed the permitted
percentage or dollar amount of contributions which may
be accepted from permanent committees or the candidate
or a slate of candidates may, not later than sixty (60)
days after the end of the election, refund any excess
permanent committee contributions on a pro rata basis to
the permanent committees whose contributions are
accepted after the aggregate limit has been reached.
(b) The provisions of paragraph (a) of this
subsection
regarding
the
receipt
of
aggregate
contributions from permanent committees in any one (1)
election shall also apply separately to the receipt of
aggregate contributions from executive committees of any
county, district, state, or federal political party in
any one (1) election.
(c) The provisions of paragraph (a) of this
subsection
regarding
the
receipt
of
aggregate
contributions from permanent committees in any one (1)
election shall also apply separately to the receipt of
aggregate contributions from caucus campaign committees.
11 

KRS § 121.150(23) prevented candidates from accepting more
than $10,000 or 50% of their aggregate campaign funds (whichever
is greater) from (a) permanent committees (more commonly known as
political action committees or “PACs”), (b) executive committees
(such as the Democratic/Libertarian/Republican Party of Kentucky),
or (c) caucus campaign committees.
This provision thus allowed these partisan committees to
inject a large sum of cash into a candidate’s campaign, but
prevented the groups from contributing a literal majority of the
candidate’s total funds, capping the maximum at half of the
aggregate total of the candidate’s war chests.
Senate Bill 75 has completely eliminated KRS § 121.150(23),
including subsections (a) through (c). Therefore, the Court will
deny as moot all motions for summary judgment with respect to KRS
§ 121.150(23).

C.

Restrictions on Lobbyists
1.
Statutory ban on a legislator’s receipt of “anything of
value” - KRS § 6.751(2) & KRS § 6.811(4)

KRS § 6.751(2) states:
A legislator or his spouse shall not solicit, accept, or
agree to accept anything of value from a legislative
agent or an employer. Violation of this subsection is a
Class B misdemeanor.
KRS § 6.811(4) states:

12 

A legislative agent or employer shall not knowingly
offer, give, or agree to give anything of value to a
legislator, a candidate, or the spouse or child of a
legislator or candidate.

Plaintiffs allege that these provisions, referred to by both
parties as the “gift ban,” are constitutionally infirm in many
respects.
First, Plaintiffs argue a prohibition on the receipt of
“anything of value” by a legislator from a lobbyist or his employer
is

unconstitutionally

vague

and

overbroad,

which

creates

a

chilling effect on the right to lobby. Further, they allege the
ban

violates

the

Fourteenth

Amendment’s

guarantee

of

equal

protection because it (i) treats lobbyists differently and (ii)
creates a content-based restriction by targeting the speaker’s
identity.
KRS § 6.611(2)(a) defines “anything of value” broadly to
include:
1. A pecuniary item, including money, or a bank bill
or note;
2. A promissory note, bill of exchange, order, draft,
warrant, check, or bond given for the payment of
money;
3. A contract, agreement, promise, or other obligation
for an advance, conveyance, forgiveness of
indebtedness, deposit, distribution, loan, payment,
gift, pledge, or transfer of money;
4. A stock, bond, note, or other investment interest
in an entity;
5. A receipt given for the payment of money or other
property;
6. A right in action;

13 

7. A gift, tangible good, chattel, or an interest in a
gift, tangible good, or chattel;
8. A loan or forgiveness of indebtedness;
9. A work of art, antique, or collectible;
10. An automobile or other means of personal
transportation;
11. Real property or an interest in real property,
including title to realty; a fee simple or partial
interest, present or future, contingent or vested,
within realty; a leasehold interest; or other
beneficial interest in realty;
12. A rebate or discount in the price of anything of
value unless the rebate or discount is made in the
ordinary course of business to a member of the public
without regard to that person's status as a
legislator;
13. A promise or offer of employment; or
14. Any other thing of value that is pecuniary or
compensatory in value to a person, or the primary
significance of which is economic gain.

An

additional

“compensation,

subsection
food,

of

this

beverages,

definition

entertainment,

states

that

transportation,

lodging, or other goods” are also prohibited if, and only if, they
are from a lobbyist or a lobbyist’s employer. KRS § 6.611(2)(b)(2).
Violation of KRS § 6.751(2) by either a legislator or legislative
candidate, or his/her spouse, is a Class B criminal misdemeanor.
KRS § 6.611(2)(b)(8) carves out an exception under which an
active

legislator

may

accept

“the

cost

of

attendance

or

participation, and of food and beverages consumed at events” to
which either the entirety of the body of the legislature, a joint
committee task force, or an approved caucus of legislators is
invited.

14 

Simply put, it is a criminal act for a legislator to attend
an event hosted by a company which lobbies the state government,
but it is not a criminal act if the company has extended the
invitation to everyone in the legislature. There is no requirement
for the lobbyist to report which legislators attended the event,
if any, regardless of the cost, location, or purpose of the event.
Qualifying events may be held outside of the state of Kentucky,
and could even include an all-expense paid vacation to a foreign
destination or luxury resort, as long as the invitation is a
blanket one to a qualifying group of legislators.
In 2014, KRS § 6.611 was amended to remove a de minimis
exception on incidental costs incurred by lobbyists when hosting
an individual legislator. That now-defunct exception allowed for
expenditures up to $100 per year for each legislator, and all
expenditures had to be reported by the lobbyist to the Ethics
Commission. Alternatively, the $100 limit could also count towards
non-promotional, non-cash items given to a legislator on behalf of
a lobbyist or his employer.
The crux of Plaintiffs’ challenge to the “gift ban” is whether
the removal of the de minimis exception in 2014 was intended to
combat actual quid pro quo corruption, in a way that does not
impose an unnecessary burden on speech. This issue, as well as the
other constitutional issues raised by Plaintiffs, are examined
below.
15 

a. Vagueness
A statute which proscribes criminal punishment violates the
Fifth Amendment’s guarantee of due process when it is “so vague
that it fails to give ordinary people fair notice of the conduct
it

punishes,

or

so

standardless

that

it

invites

arbitrary

enforcement.” Johnson v. United States, ___ U.S. ___, 135 S. Ct.
2551, 2556 (2015).
An illustration of how arbitrarily this “gift ban” is applied
can be found in the testimony of the Executive Director of the
Ethics

Commission.

In

his

deposition,

the

Executive

Director

admitted that a bottle of water consumed by a legislator during
the course of a meeting at a lobbyist’s office to discuss a pending
bill would be a “possible” thing of value that would violate the
ban, and suggested that the legislator should literally call him
on the telephone to “ask [] if he should accept it under the
circumstance.” (Schaaf Depo., Doc. 47-1 at 49-50). This testimony
alone indicates that the law is unconstitutionally vague because
it does not give a person of ordinary intelligence the ability to
know what conduct is prohibited. Johnson, 135 S. Ct. at 2556.
Plaintiffs argue that, given the elimination of the de minimis
exception, this ban does not pass closely drawn scrutiny, let alone
strict scrutiny, because the ban is not related to the deterrence
of quid pro quo corruption. They point to further testimony from
the Executive Director of the Ethics Commission, who admitted that
16 

the ban was actually enacted due to complaints by some of the
legislators who “were surprised by the fact that their names were
being reported for some event that they didn't think was going to
be reported that they attended or didn't attend in some cases.”
(Schaaf Depo., Doc. 47-1 at 189-191).
In addition to creating an as-applied vagueness problem, this
testimony is a clear admission that the reason for removing the de
minimis exception was not problems with quid pro quo corruption or
its appearance. Moreover, removing the requirement for disclosure
of a lobbyist’s expenditures on individual legislators eliminated
a mechanism of accountability and transparency, simply because the
legislators objected to their names showing up on the reports.
Another

vagueness

problem

arises

with

the

exception

for

events to which the entire legislature is invited. What if an event
hosted by a large company who employs lobbyists is open to the
general public and no specific invitation is required? Is it
necessary that the entire legislature needs to be put on notice if
Senator Schickel wishes to attend the event? What if the Senator
is under the impression that the entire legislature was invited,
but later learns that was not the case? KRS § 6.751(2) is too vague
to answer these questions. It is thus unconstitutional because it
does not provide fair notice of what conduct might violate it,
creating opportunities for arbitrary enforcement of criminal law.

17 

b. Content-Based Restriction on Speech
Plaintiffs also allege that the gift ban amounts to a contentbased speech restriction because it targets the identity of the
giver.
“Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or the
idea or message expressed.” Reed v. Town of Gilbert, Ariz., ___
U.S. ___, 135 S. Ct. 2218, 2227 (2015). A law in which the
restriction is speaker-based does not render it content neutral
because “speech restrictions based on the identity of the speaker
are all too often simply a means to control content.” Reed, 135 S.
Ct. at 2230 (internal quotations and citations omitted).
“Political

speech

must

prevail

against

laws

that

would

suppress it, whether by design or inadvertence. Laws that burden
political speech are subject to strict scrutiny, which requires
the Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest.”
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010).
Here, lobbyists and their employers are the only persons
banned from giving a legislator “anything of value.” The purpose
of a lobbyist is to influence government, which is the very heart
of

politics.

Therefore,

a

speaker-based

ban

which

suppresses

political speech requires the government to show that the ban is

18 

narrowly tailored to achieve the purpose of combatting quid pro
quo corruption. Citizens United, 558 U.S. at 340.
As previously discussed, the statutes allow lobbyists and
their employers to invite all legislators to events, with no
requirement to report which legislators actually end up attending.
This lack of accountability for “group events” does not render a
complete ban on invitations to fewer than all legislators narrowly
tailored to prevent quid pro quo corruption. At any event, large
or small, a lobbyist may still corner a particular legislator in
an effort to broker a quid pro quo deal. Further, the deletion of
the $100 de minimis exception increases this risk because it
eliminated the only reporting mechanism—meaning information about
which legislators attended events hosted by lobbyists and their
employers is no longer public record.
c. Chilling Effect and Overbreadth
Plaintiffs next allege that the gift ban creates a chilling
effect on speech and is overly broad, two issues that go hand in
hand.
The act of lobbying is protected by the First Amendment right
to petition the government. Eaton v. Newport Bd. of Educ., 975
F.2d 292, 297 (6th Cir. 1992). Lobbying is thus protected from
overly broad restrictions that cause a chilling effect on the
protected expression. Broadrick v. Oklahoma, 413 U.S. 601, 630
(1973). The Sixth Circuit has stated:
19 

A law is overbroad under the First Amendment if it
reaches
a
substantial
number
of
impermissible
applications relative to the law’s legitimate sweep. The
overbreadth doctrine exists to prevent the chilling of
future protected expression. Therefore, any law imposing
restrictions so broad that it chills speech outside the
purview of its legitimate regulatory purpose will be
struck down.
Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson
Cty.,

Tennessee,

quotations

and

274

F.3d

citations

377,

387

omitted).

(6th
A

Cir.

law’s

2001)(internal

use

of

criminal

sanctions, as found in KRS § 6.751(2), magnifies the chilling
effect. Connection Distrib. Co. v. Holder, 557 F.3d 321, 345 (6th
Cir. 2009).
As discussed, the scope of the gift ban is so broad that even
a glass of water may be considered a violation. Plaintiffs argue
that if water is an item of value, then so might be the heating of
a building on a cold winter day, or air-conditioned cooling in the
middle of the summer. Not knowing what otherwise mundane amenities
may constitute something of “value” would cause hesitation on the
part of a legislator if invited to a lobbyist’s office to discuss
a matter of importance.
As Plaintiffs point out, lobbyists and their employers are
often major players in whatever industry they participate, and
they serve as “excellent sources of information, and are experts
in certain industries and fields.” (Doc. 65-1 at 4). “Influence
and access, moreover, are not sinister in nature. Some influence,

20 

such as wise counsel from a trusted advisor—even if that advisor
is a lobbyist—can enhance the effectiveness of our representative
government.” Green Party of Connecticut v. Garfield, 616 F.3d 189,
206 (2d Cir. 2010).
If

a

legislator

is

hesitant

to

visit

a

factory

or

manufacturing facility operated by a company that actively lobbies
the legislature for fear that the visit may constitute an economic
benefit, the legislator misses out on the opportunity to learn
more about that particular industry. If even the act of accepting
a glass of water could amount to a criminal violation, a legislator
would reasonably be hesitant to attend a meeting at a lobbyist’s
office to discuss a matter of potential public importance.
Therefore, the gift ban may include innocuous interactions
between legislators and constituents that could cause a chilling
effect on fundamental interactions in the furtherance of the
democratic process.
In addition, the law impedes the legislator’s right, as an
individual, to associate with a member of the public, having a
direct effect on personal relationships that may exist prior to
and outside of the lobbyist’s professional career. As Plaintiffs
note, the ban prohibits a member of the Kentucky legislature from
attending a social event held by his friend if that person happens
to be a lobbyist. This ban extends even to the legislator’s spouse,
and it is written so broadly that it would include private events
21 

hosted by a close friend, such as a family dinner or graduation
party.
Defendants argue that legislators are free to attend such
events within the confines of this ban as long as the legislator
or his/her spouse reimburses the lobbyist for anything of value
obtained. As KRS § 6.611 is currently written, that would include
paying the host for any entertainment, food, or drink consumed by
either the legislator or spouse at the event. This requirement is
clearly

an

overreaching

and

unreasonable

restraint

on

an

individual’s freedom of association with other members of the
public.
The

vagueness

and

overbreadth

of

this

section

may

be

illustrated by the following example: suppose someone is employed
by the Northern Kentucky Chamber of Commerce, and part of his or
her duty is to assist in lobbying. Suppose that person’s father
dies and he or she is paying for a funeral, at the conclusion of
which

refreshments

are

served.

Suppose

further

that

a

state

legislator who is a friend of the lobbyist’s brother attends the
funeral and partakes of the refreshments, but the legislator does
not know that the host is a lobbyist.
Under the language of the statute, would an offense be
committed by the legislator? The statute is vague on this point.
It is also overbroad in that fear of its application would deter
people from engaging in activities which are protected by freedom
22 

of association and the liberty guaranteed by the Constitution of
the United States.
d. Equal Protection
Plaintiffs also allege that the gift ban treats lobbyists
differently from other constituents, and is therefore in violation
of their rights to equal protection.
Even though lobbyists and their employers are not part of a
suspect class, a law that treats them differently from other
citizens is subject to the highest level of scrutiny when it seeks
to suppress their political expression. Austin v. Michigan Chamber
of Commerce, 494 U.S. 652, 666 (1990)(“Because the right to engage
in

political

expression

is

fundamental

to

our

constitutional

system, statutory classifications impinging upon that right must
be

narrowly

tailored

to

serve

a

compelling

governmental

interest.”)(citing Police Department of Chicago v. Mosley, 408
U.S. 92, 101 (1972), overruled on other grounds by Citizens United
v. Fed. Election Comm'n, 558 U.S. 310 (2010)).
As discussed, influencing the government through the act of
lobbying is at the heart of the political process. A law that
specifically restricts what a lobbyist can and cannot do regarding
a legislative member of government is a suppression on their
freedom of association with those individuals. Id.

23 

Therefore, the Court will deny Defendants’ motion for summary
judgment and grant Plaintiff’s motion for summary judgment with
respect to KRS § 6.751(2) and KRS § 6.811(4).
2.
Statutory ban on campaign contributions from lobbyists
at all times – KRS § 6.767(1) & KRS § 6.811(6)
KRS § 6.767(1) states:
A member of the General Assembly, candidate for the
General Assembly, or his or her campaign committee shall
not accept a campaign contribution from a legislative
agent.
Violation
of
this
provision
is
ethical
misconduct.
KRS § 6.811(6) states:
A legislative agent shall not make a campaign
contribution to a legislator, a candidate, or his or her
campaign committee.

KRS § 6.767(1) and KRS § 6.811(6) together thus impose a
complete ban on campaign contributions from lobbyists at all times.
Contributions

to

a

candidate

or

incumbent

legislator’s

campaign are protected by the First Amendment as both a means of
political expression and political association. McCutcheon v. Fed.
Election Comm'n, ___ U.S. ___, 134 S. Ct. 1434, 1448 (2014).
Campaign contributions may only be limited to serve the legitimate
government interest of preventing quid pro quo corruption or its
appearance. Id. at 1450.
Any

such

restrictions

must

be

“closely

drawn

unnecessary abridgment of associational freedoms.”

to

avoid

Buckley v.

Valeo, 424 U.S. 1, 25 (1976). The Sixth Circuit applies strict
24 

scrutiny to burdens on “core political speech,” requiring that a
burdensome provision be narrowly tailored to serve the overriding
state interest. Gables v. Patton, 142 F.3d 940, 945 (6th Cir.
1998). The government has the burden of proving that a restriction
on campaign contributions furthers the objective of preventing
quid pro quo corruption or its appearance. McCutcheon, 134 S. Ct.
at 1452.
Here, Defendants fail to show that a complete ban on campaign
contributions from lobbyists is narrowly tailored to prevent quid
pro quo corruption. Defendants point to North Carolina Right to
Life,

Inc.

v.

contributions

Bartlett
from

as

an

lobbyists

example
that

of

have

restrictions
been

upheld

on
as

constitutional. 168 F.3d 705 (4th Cir. 1999). However, the Fourth
Circuit

found

North

Carolina’s

ban

on

contributions

made

by

lobbyists to be constitutional because it was narrowly tailored to
“last only during the legislative session.” Bartlett, 168 F.3d at
716.
North Carolina's restrictions do nothing more than place
a temporary hold on appellees' ability to contribute
during the General Assembly session, leaving them free
to contribute during the rest of the calendar year and
to engage in political speech for the entire year.
Id. at 715.
Defendants cite to a similar case in which the Supreme Court
of Vermont also found a ban on contributions from lobbyists during
a legislative session to be constitutional because “the limited
25 

prohibition focuses on a narrow period during which legislators
could be, or could appear to be, pressured, coerced, or tempted
into voting on the basis of cash contributions rather than on
consideration of the public weal.” Kimbell v. Hooper, 665 A.2d 44,
51 (Vt. 1995).
Plaintiffs
Connecticut,

and

where

Defendants
the

Second

both

cite

Circuit

to

struck

Green
down

Party
a

ban

of
on

contributions from lobbyists, although Defendants argue that the
Court did so only “because the lobbyists had nothing to do with
the scandal at issue.” (Doc. 70 at 22).
In fact, Garfield echoes the same concerns about complete
bans on contributions that underline Plaintiffs’ claims:
Indeed, a contribution ban cuts off even the symbolic
expression of support evidenced by a small contribution.
Thus, if the state's interests in this case can be
achieved by means of a limit on lobbyist contributions,
rather than a ban, the ban should be struck down for
failing to avoid unnecessary abridgment of associational
freedoms.
Green Party of Connecticut v. Garfield, 616 F.3d 189, 206 (2d Cir.
2010)(internal quotations and citations omitted).
Here, the Kentucky statutes at issue do not permit lobbyists
to make contributions during any time of year. It is clear that
the

statute

could

be

narrowed

to

prohibit

lobbyists

from

contributing only during an active legislative session.
The Court concludes that Kentucky’s complete ban on all
campaign contributions from lobbyists is unconstitutional because
26 

there are less restrictive means available that may achieve the
same goal, such as setting an annual limit or limiting the ban to
the active legislative session. Thus, the statutes are neither
closely drawn nor narrowly tailored to achieve the compelling state
interest of preventing quid pro quo corruption. See Bartlett, 168
F.3d at 715-16; Garfield, 616 F.3d at 206.
As with the previous example regarding the gift ban, this
statute is also overbroad because the candidate might not know
that the contribution comes from a “legislative agent.” The donor
might not even know he or she is considered a “legislative agent”
if they are a clerical employee of an organization such as the
Chamber of Commerce or the Kentucky Bar Association.
Therefore, the Court will deny Defendants’ motion for summary
judgment with respect to KRS § 6.757(1) and KRS § 6.811(6).
3.
Ban on campaign contributions from employers of
lobbyists during an active legislative session – KRS §
6.767(2) & KRS § 6.811(7)
KRS § 6.767(2) states:
A member of the General Assembly, candidate for the
General Assembly, or his or her campaign committee shall
not, during a regular session of the General Assembly,
accept a campaign contribution from an employer of a
legislative agent, or from a permanent committee as
defined in KRS 121.015. This subsection shall not apply
to candidates for the General Assembly in a special
election held during a regular session of the General
Assembly. Violation of this provision is ethical
misconduct.
KRS § 6.811(7) states:

27 

During a regular session of the General Assembly, an
employer of a legislative agent shall not make a campaign
contribution to a legislator, candidate, campaign
committee for a legislator or candidate, or caucus
campaign committee. This subsection shall not apply to
candidates for the General Assembly in a special
election held during a regular session of the General
Assembly.
KRS

6.767(2)

prohibits

legislators

and

candidates

from

accepting campaign contributions from an employer of a lobbyist
during regular sessions of the General Assembly, and KRS 6.811(7)
reciprocally prohibits employers of lobbyists from making campaign
contributions during regular sessions of the General Assembly.
Plaintiffs allege that a complete ban on contributions at any
time is a drastic limitation on First Amendment rights, even during
the General Assembly session, and requires actual evidence of a
recent scandal to demonstrate that a ban is the only possible
method of curtailing corruption. The Sixth Circuit has held that
less

restrictive

bans

are

favorable

to

an

outright

ban

on

contributions because the latter is a drastic restriction and
requires the government to assert something greater than its own
discretion to “demonstrate how its contribution ban furthers a
sufficiently important interest.” Lavin v. Husted, 689 F.3d 543,
547 (6th Cir. 2012).
Here, KRS 6.767(2) and KRS 6.811(7) only impose a ban during
active legislative sessions. This time-specific prohibition is
less restrictive than a complete ban, and is closely drawn to the

28 

goal of deterring corruption or its appearance by preventing money
from exchanging hands between legislators and lobbyists during
legislative sessions when quid pro quo corruption would be a
greater danger. Id.; see also Kimbell, 665 A.2d at 51 (holding a
contribution ban during active legislative sessions constitutional
because it focused on a narrow period of time when legislators
could be, or appear to be, pressured to act).
Therefore,

the

Court

will

grant

Defendants’

motion

for

summary judgment and deny Plaintiffs’ motion for summary judgment
with respect to KRS § 6.767(2) and KRS § 6.811(7).
4.
Prohibition on lobbyists serving as campaign treasurers,
and on soliciting, controlling, or delivering a campaign
contribution. – KRS § 6.811(5)
KRS § 6.811(5) states:
A legislative agent shall not serve as a campaign
treasurer, and shall not directly solicit, control, or
deliver a campaign contribution, for a candidate or
legislator.

Plaintiffs allege that preventing a lobbyist from soliciting
on behalf of a candidate is an unreasonable restriction on speech
that

does

not

serve

the

purpose

of

combatting

quid

pro

quo

corruption, and it is not the least restrictive means to achieve
that goal.
An individual’s ability to solicit contributions, rather than
directly make a contribution, lies close to the core of protected
political speech. Garfield, 616 F.3d at 207–08; see also Fed.
29 

Election Comm'n v. Beaumont, 539 U.S. 146, 163 (2003)(holding a
ban on direct contributions from corporations to be constitutional
because it did not interfere with the corporation’s right to
advocate for candidates through other avenues of solicitation). As
the Second Circuit stated:
Unlike laws limiting contributions, which present
marginal speech restrictions that lie closer to the
edges than to the core of political expression, a limit
on
the
solicitation
of
otherwise
permissible
contributions prohibits exactly the kind of expressive
activity that lies at the First Amendment's core. That
is because the solicitation of contributions involves
speech—to solicit contributions on behalf of a candidate
is to make a statement: “You should support this
candidate, not only at the polls but with a financial
contribution.” Whatever may be said about whether money
is speech, speech is speech, even if it is speech about
money.
Garfield, 616 F.3d at 207–08 (internal quotations and citations
omitted).
Here, KRS § 6.811(5) prohibits a lobbyist from advocating his
or her support for a candidate through solicitation of any kind.
This restriction impedes an individual’s associational freedom by
stifling a lobbyist’s ability to express his or her opinion of a
candidate’s worthiness of support, even to a member of his or her
own family. Garfield, 616 F.3d at 203-04.
Defendants

counter

that

this

solicitation

ban

is

constitutional because other jurisdictions have upheld similar
bans.

However,

Defendants

have

shown

no

evidence

of

recent

corruption in Kentucky that would show that the ban is narrowly
30 

tailored to address an important government interest. Defendants’
reliance on other states’ court findings of constitutionality on
different statutes is thus unavailing.
Therefore, the Court will deny Defendants’ motion for summary
judgment and grant Plaintiff’s motion for summary judgment with
respect to KRS § 6.811(5).
D. Plaintiff Ken Moellman, Jr.’s standing
“To

establish

Article

III

standing,

an

injury

must

be

concrete, particularized, and actual or imminent; fairly traceable
to the challenged action; and redressable by a favorable ruling.”
Russell v. Lundergan-Grimes, 784 F.3d 1037, 1049 (6th Cir. 2015)
(quoting Clapper v. Amnesty Intern. USA, 568 U.S. 398, 133 S.Ct.
1138, 1147 (2013)).
To demonstrate standing, Plaintiffs need only plead that they
reasonably fear actions that might be taken by Defendants that
would cause them an injury in fact. Id. “Where plaintiffs allege
an intention to engage in a course of conduct arguably affected
with a constitutional interest which is clearly proscribed by
statute, courts have found standing to challenge the statute, even
absent a specific threat of enforcement.” United Food & Commercial
Workers Int'l Union, AFL-CIO, CLC v. IBP, Inc., 857 F.2d 422, 428
(8th Cir. 1988).
Moellman alleges his intent to run for County Judge/Executive
of Pendelton County in the 2018 election. Defendants assert that
31 

Moellman lacks standing because he has yet to register to run for
said office. This argument is not well taken. According to the
Kentucky Secretary of State’s website, the earliest filing date
for the seat in question would be November 8, 2017, and therefore
Moellman is unable to officially register until that date.5 Though
it is possible for a potential candidate to file a “Letter of
Intent” with KREF prior to the open ballot registration, it is not
required.6

Therefore,

Moellman’s

expressed

intent

to

run

for

election is sufficient to confer standing.
Therefore, the Court will deny Defendants’ motion for summary
judgment and grant Plaintiffs’ motion for summary judgment with
respect to Ken Moellman Jr.’s standing in the instant case.
Therefore, having heard the parties, and the Court being
sufficiently advised,
IT IS ORDERED that:

5 County Judge/Executive Republican and Democrat Party Candidates
Primary Election, COMMONWEALTH OF KENTUCKY, OFFICE OF THE SECRETARY OF
STATE,
http://apps.sos.ky.gov/CandidateFilingDocuments/CountyJudgeExe
cutive_RepublicanDemocraticPrimary.pdf (last visited May 31,
2017).
6

Guide
to
Campaign
Finance,
KREF,
http://kref.ky.gov/SiteAssets/Pages/OnlineTraining/Candidate%20Guide%20to%20Campaign%20Finance.pdf (last
visited May 31, 2017).
32 

(1)

Defendants’ motion for summary judgment (Doc. 62) and
Plaintiffs’ motion for summary judgment and injunction
(Doc. 63) with respect to KRS § 121.150(6) be, and are
hereby, DENIED as moot;

(2)

Defendants’ motion for summary judgment (Doc. 62) and
Plaintiffs’ motion for summary judgment and injunction
(Doc. 63) with respect to KRS § 121.150(11) and KRS §
121.015(3)(b) be, and are hereby GRANTED in part and
DENIED in part, in line with the analysis above;

(3)

Defendants’ motion for summary judgment (Doc. 62) and
Plaintiffs’ motion for summary judgment and injunction
(Doc. 63) with respect to KRS § 121.150(13) (Doc. 62)
be, and are hereby, DENIED as moot;

(4)

Defendants’ motion for summary judgment (Doc. 62) and
Plaintiffs’ motion for summary judgment and injunction
(Doc. 63) with respect to KRS § 121.150(23) (Doc. 62)
be, and are hereby, DENIED as moot;

(5)

Defendants’ motion for summary judgment (Doc. 64) with
respect to KRS § 6.751(2) be, and is hereby, DENIED;

(6)

Plaintiffs’ motion for summary judgment and injunction
(Doc. 65) with respect to KRS § 121.751(2) be, and is
hereby, GRANTED;

(7)

Defendants’ motion for summary judgment (Doc. 64) with
respect to KRS § 6.811(4) be, and is hereby, DENIED;
33 

(8)

Plaintiffs’ motion for summary judgment and injunction
(Doc. 65) with respect to KRS § 6.811(4) be, and is
hereby, GRANTED;

(9)

Defendants’ motion for summary judgment (Doc. 64) with
respect to KRS § 6.767(1) be, and is hereby, DENIED;

(10) Plaintiffs’ motion for summary judgment and injunction
(Doc. 65) with respect to KRS § 6.767(1) be, and is
hereby, GRANTED;
(11) Defendants’ motion for summary judgment (Doc. 64) with
respect to KRS § 6.811(6) be, and is hereby, DENIED;
(12) Plaintiffs’ motion for summary judgment and injunction
(Doc. 65) with respect to KRS § 6.811(6) be, and is
hereby, GRANTED;
(13) Defendants’ motion for summary judgment (Doc. 64) with
respect to KRS § 6.767(2) be, and is hereby, GRANTED;
(14) Plaintiffs’ motion for summary judgment and injunction
(Doc. 65) with respect to KRS § 6.767(2) be, and is
hereby, DENIED;
(15) Defendants’ motion for summary judgment (Doc. 64) with
respect to KRS § 6.811(7) be, and is hereby, GRANTED;
(16) Plaintiffs’ motion for summary judgment and injunction
(Doc. 65) with respect to KRS § 6.811(7) be, and is
hereby, DENIED;

34 

(17) Defendants’ motion for summary judgment (Doc. 64) with
respect to KRS § 6.811(5) be, and is hereby, DENIED;
(18) Plaintiffs’ motion for summary judgment and injunction
(Doc. 65) with respect to KRS § 6.811(5) be, and is
hereby, GRANTED; and
(19) The

parties

shall

confer

and

draft

a

permanent

injunction that comports with this Opinion and Fed. R.
Civ. P. 65, and they shall file the proposed injunction
within twenty (20) days of entry of this Order. This
shall not constitute a waiver of any party’s right to
contest or appeal the rulings adverse to them.
This 6th day of June, 2017.

35