Missourians for Fiscal Accountability v. Missouri Ethics Commission
ORDER denying 35 Defendant's motion for summary judgment; granting 37 Plaintiff's motion for summary judgment. Signed on 1/5/2017 by District Judge Ortrie D. Smith. (Kitsmiller, Julia)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
MISSOURIANS FOR FISCAL
JAMES KLAHR, in his official capacity
as Executive Director of the Missouri
Case No. 14-4287-CV-ODS
ORDER AND OPINION DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Pending are Defendant Missouri Ethics Commission’s (“Commission”) Motion for
Summary Judgment (Doc. #35) and Plaintiff Missourians for Fiscal Accountability’s
(“MFA”) Motion for Summary Judgment (Doc. #37). For the following reasons, the
Commission’s motion is denied, and MFA’s motion is granted.
MFA is a “political organization” within the meaning of section 527 of the Internal
Revenue Code. MFA was formed on October 22, 2014, with the intent of collecting
contributions and expending money to advocate for Proposition 10, a proposed
amendment to the Missouri Constitution voted upon during the November 4, 2014
general election. MFA endeavored to register as a “campaign committee” as required
by Missouri statute. However, Missouri statutes precluded MFA from collecting or
spending money to support Proposition 10 because MFA did not register as a campaign
committee at least thirty days before the election.
Section 130.011 of the Missouri Revised Statutes defines a “campaign
committee” in terms that include limitations on what a campaign committee is and can
do. In pertinent part, the statute provides:
a committee, other than a candidate committee, which shall be formed by
an individual or group of individuals to receive contributions or make
expenditures and whose sole purpose is to support or oppose the
qualification and passage of one or more particular ballot measures in an
election…shall be formed no later than thirty days prior to the election for
which the committee receives contributions or makes expenditures….
Mo. Rev. Stat. § 130.011(8) (2016). According to MFA, this section creates a blackout
period during which a campaign committee cannot collect or expend funds, and this
blackout period places a ceiling on speech for thirty days even if an organization is
willing to comply with all disclosure requirements. See Doc. #1.
On October 30, 2014, MFA initiated this lawsuit alleging section 130.011(8)
restricted its ability to collect and expend funds to support Proposition 10 violates the
First Amendment, and sought an injunction to protect itself from the adverse effects of
violating section 130.011. Id. On October 31, 2014, MFA filed a motion for temporary
restraining order. Doc. #5. After conducting a telephonic hearing in which both parties
participated, the Court granted MFA’s motion. Doc. #9.
After the election was held, the Court directed the parties to show cause why the
case should not be dismissed for lack of jurisdiction because the dispute may have
been rendered moot by the election’s occurrence. Doc. #11. The Court concluded the
matter was not moot, but the Court sought additional briefing from the parties regarding
whether a final judgment should be entered based upon the rationale expressed in the
temporary restraining order. Doc. #20. On April 27, 2015, the Court dismissed the
matter without prejudice, finding the claims were not ripe for adjudication. Doc. #25.
MFA appealed this Court’s decision to the Court of Appeals for the Eighth Circuit. Doc.
#17. The Eighth Circuit found MFA’s claims were ripe and remanded the case.
Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789 (8th Cir. 2016).
Both parties have filed motions for summary judgment asking the Court to
determine whether section 130.011(8) violates the First Amendment. These motions
are fully briefed and now ripe for consideration.
A moving party is entitled to summary judgment on a claim only if there is a
showing that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Williams v. City of St. Louis, 783 F.2d 114,
115 (8th Cir. 1986). “[W]hile the materiality determination rests on the substantive law,
it is the substantive law’s identification of which facts are critical and which facts are
irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Wierman v.
Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011) (quotation omitted). In applying
this standard, the Court must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all inferences that may be reasonably
drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 588-89 (1986); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984). However, a
party opposing a motion for summary judgment “may not rest upon the mere allegations
or denials of the…pleadings, but…by affidavits or as otherwise provided in [Rule 56],
must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.
The First Amendment protects the right to participate in the political process,
which includes the right to make political donations or spend money to express political
views. See McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1441 (2014).
Speech about ballot initiatives, as is the case here, is “quintessential political speech,
which is at the heart of the protections of the First Amendment.” 281 Care Committee v.
Arneson, 638 F.3d 621, 635 (8th Cir. 2011) (citing Mills v. Alabama, 384 U.S. 214, 218
(1966)). The First Amendment’s protections extend to corporations and associations.
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342-43 (2010) (citations
omitted). When the Government restricts speech, it bears the burden of proving the
constitutionality of the restrictions. McCutcheon, 134 S. Ct. at 1452. “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, 558 U.S. at 340 (quoting Fed. Election Comm’n v. Wis. Right
to Life, Inc., 551 U.S. 449, 464 (2007)).
The Commission concedes Chapter 130 of the Missouri Revised Statutes
“imposes some limits on election-related speech by prohibiting or limiting certain kinds
of expenditures” and “violations” of the chapter’s provisions expressly prohibit, limit, or
compel speech could result in civil or criminal penalties. Doc. #40, at 11-12. The
Commission contends the plain language of section 130.011(8), however, does not
prohibit speech, does not impose penalties, and does not sideline anyone from speech.
Id., at 11-12, 24. Section 130.011(8), according to the Commission is “part of a larger
statutory scheme.” Id., at 21. The Commission places great importance on having a
record of every participating campaign committee so that voters or journalists can
access the name and contact information for the committee’s treasurer and the names
and addresses of donors funding the committee’s advertisements. Id., at 22. Without
the formation deadline, according to the Commission, voters’ access to the information
would be limited or possibly unavailable. Id., at 23-24.
The Commission argues section 130.011(8) “does not prohibit MFA from
accepting contributions or making expenditures in the 30 days before an election.” Doc.
#40, at 25. Rather, the Commission maintains the section incentivizes campaign
committees to form early and in time to provide voters with access to information. Id., at
26. Failing to meet the registration deadline may only result in an administrative fee. Id.
The Commission contends “nothing in the statute prevents the committee from
accepting contributions and making expenditures from the moment it forms.” Id.
Contrary to the Commission’s argument, any person who violates Chapter 130
may be found guilty of a class A misdemeanor. Mo. Rev. Stat. § 130.081.1 (2016). A
class A misdemeanor is punishable by a sentence of imprisonment, not to exceed one
year. Mo. Rev. Stat. § 558.011.1(6) (2016).1 While the Commission is not empowered
to prosecute criminal violations, it has the power to conduct investigations and assess
fines against campaign committees that violate Missouri’s election laws, including
section 130.011. Doc. #40, at 14.2 The Commission accurately represents that some
There is a separate provision pertaining to persons who fail to file any report or
statement required by Chapter 130, which is an infraction. Mo. Rev. Stat. § 130.081.2
If a violation pertaining to the failure to file a report or statement occurs (or any other
violation deemed not a criminal violation), the Commission has the authority to conduct
Chapter 130 violations are spelled out.3 And while section 130.011(8) does not set forth
what constitutes a violation, section 130.081.1 is not limited to any particular provision.
It encompasses all of Chapter 130. Mo. Rev. Stat. § 130.081.1 (2016). And unless the
violation is one related to failing to file a report or statement, a person who violates any
other provision of Chapter 130 may be found guilty of a class A misdemeanor. Id.
Further, MFA may face civil penalties if it violates Chapter 130.
Any person who knowingly accepts or makes a contribution or makes an
expenditure in violation of any provision of this chapter or who knowingly
conceals a contribution or expenditure by filing a false or incomplete report
or by not filing a required report, in addition to or in the alternative to any
other penalty imposed by this chapter, shall be held liable to the state in
civil penalties in an amount equal to any such contribution or expenditure.
Mo. Rev. Stat. § 130.072 (2016). Thus, any expenditure by MFA during the thirty-day
period could result in civil penalties. Id. A penalty need not be criminal to chill speech.
281 Care Committee, 638 F.3d at 630 (citation omitted) (noting non-criminal
consequences can contribute to the “objective reasonableness of alleged chill.”).
Consequently, if a group of individuals decides less than thirty days before an
election to engage in First Amendment activity related to that election, it faces potential
criminal prosecution and/or a civil penalty. Given this, the Court finds section
130.011(8), at best, burdens political speech. To pass constitutional muster, the
Commission must prove the restriction on political speech “furthers a compelling interest
and is narrowly tailored to achieve that interest.” Citizens United, 58 U.S. at 340
(citation omitted). The Commission contends the thirty-day blackout period promotes
the State’s interest in informing voters of the sources of election-related spending. This
interest has been recognized as valid and has most often been posited as justifying
a closed hearing and may seek fees for violations in an amount not greater than $1,000.
Mo. Rev. Stat. § 105.961 (2016). The Commission may also initiate judicial
proceedings. Id., § 105.961.5.
Section 130.023 sets forth different types of criminal violations. Mo. Rev. Stat. §
130.028.3 (2016). It is a violation for a person to fail to provide information related to
printed election materials. Id., § 130.031.11. It is also a violation for a committee to
offer chances to win prizes or money to persons in an effort to encourage persons to
endorse, send or deliver election materials, or contact persons in their homes. Id., §
disclosure requirements. See Citizens United, 558 U.S. at 367. Disclosure
requirements are justified, in part, based upon the Government’s interest in providing
voters with information about sources of election-related spending. McCutcheon, 134
S. Ct. at 1434 (citing Citizens United, 558 U.S. at 367). Disclosure requirements
“burden the ability to speak, but they impose no ceiling on campaign-related activities
and do not prevent anyone from speaking. The Court has subjected these
requirements to exacting scrutiny, which requires a substantial relation between the
disclosure requirement and a sufficiently important governmental interest.” Citizens
United, 558 U.S. at 366-67.
The fact a campaign committee exists does not inform voters as to what issue(s)
in which the committee is interested or what position the committee intends to take on
the issue(s). Significantly, the blackout period forbids communication with the voters.
In fact, a campaign committee could comply with the statute by registering more than
thirty days before the election, and wait until days before the election to begin collecting
and spending money. If that were the case, the voters would have just as little
information about that committee as they would with regard to MFA. The thirty-day
blackout period at issue is not a disclosure requirement. Furthermore, it does not
accomplish its objective as a voter education tool. Thus, it does not meet exacting
The Court would be remiss if it did not also discuss the timeframe in which MFA
sought to speak. As the Supreme Court has noted, “[i]t is well known that the public
begins to concentrate on elections only in the weeks immediately before they are held.
There are short timeframes in which speech can have influence.” Citizens United, 558
U.S. at 334. It is during the weeks immediately prior to the election that “the need or
relevance of speech will often first be apparent.” Id. One’s ability to speak and
persuade voters is “stifled if the speaker must first commence a protracted lawsuit.” Id.
The section’s prohibition of speech during this critical timeframe in the election process
silences speakers and prevents information from reaching voters. The statute is a prior
restraint on the speech of late-forming campaign committees.
If the State wants to educate voters, it can employ more effective means that are
less violative of First Amendment rights – that is, disclosure requirements. Catholic
Leadership Coal. of Tex. v. Reisman, 764 F.3d 409, 428-29 (5th Cir. 2014); see also
Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 298-99 (1981) (“The
public interest allegedly advanced by [a contribution limitation] – identifying the sources
of support for and opposition to ballot measures – is insubstantial because voters may
identify those sources under the provisions [establishing disclosure requirements].”). If
Missouri does not have a disclosure requirement, then enforcing the blackout period
does nothing to inform the voters. If Missouri has a disclosure requirement, then the
blackout period does nothing to further inform the voters.
The Commission places great weight on the Eighth Circuit’s decision in National
Right to Life Political Action Committee v. Connor, 323 F.3d 684 (8th Cir. 2003), to
argue it should be granted summary judgment. In Connor, the Eighth Circuit held the
plaintiffs, a national non-profit organization and its committee, lacked standing to bring
certain claims challenging Missouri statutes precluding an out-of-state committee from
making expenditures for communications in Missouri elections within thirty days prior to
the election, and other claim were not ripe. Id. at 690-95. Within the Court’s discussion
of ripeness, it stated section 130.011(10), a statute pertaining to continuing committees,
“does not, on its face, limit issue or express advocacy within thirty days of an election; it
merely states a registration deadline.” Id. at 693.
The Commission concedes the Eighth Circuit did not decide whether that section
violated the First Amendment. Doc. #40, at 15. Significantly, the Eighth Circuit did not
address the constitutionally of the section, and stated how the Commission would
handle the “fee” for failing to file prior to the thirty day window would have a significant
impact on its constitutional scrutiny of that statute. Id. Accordingly, Connor is not
beneficial to the Court’s analysis as to the constitutionality of section 130.011(8).
For the foregoing reasons, MFA’s motion for summary judgment is granted, and
the Commission’s motion for summary judgment is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: January 5, 2017
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