Free and Fair Election Fund; Missourians for Worker Freedom; American Democracy Alliance; Herzog Services, Inc.; Farmers State Bank; Missouri Electric Cooperatives, doing business as Association of Missouri Electric Cooperatives; Association of Missouri Electric Cooperatives, PAC; David Klindt; Legends Bank; John Elliott, Plaintiffs - Appellees,
Missouri Ethics Commission; Don Summers, in his official capacity; Kimberly Benjamin, in her official capacity; George Ratermann, in his official capacity; Wayne Henke, in his official capacity; Liz Ziegler, in her official capacity, Defendants - Appellants.
Submitted: April 10, 2018
from United States District Court for the Western District of
Missouri - Jefferson City
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Missouri Ethics Commission appeals the district
court's order permanently enjoining enforcement of
a recently enacted provision of the Missouri Constitution.
The provision, found in Mo. Const. art. VIII, §
23.3(12), prohibits a political action committee from
receiving contributions from other political action
committees. The district court concluded that the prohibition
unconstitutionally infringed on a political action
committee's First Amendment rights to freedom of speech
and association. We agree and therefore affirm.
November 8, 2016, Missouri voters approved an amendment to
the Missouri Constitution that added several provisions
pertaining to campaign finance. The amendment took effect on
December 8, 2016, see Mo. Const. art. XII, §
2(b), and was enacted as § 23 to Article VIII of the
issue in this appeal is § 23.3(12), which provides in
pertinent part: "Political action committees . . . shall
be prohibited from receiving contributions from other
political action committees . . . ." The amendment
defines "political action committee" as
a committee of continuing existence which is not formed,
controlled or directed by a candidate, and is a committee
other than a candidate committee, political party committee,
campaign committee, exploratory committee, or debt service
committee, whose primary or incidental purpose is to receive
contributions or make expenditures to influence or attempt to
influence the action of voters whether or not a particular
candidate or candidates or a particular ballot measure or
measures to be supported or opposed has been determined at
the time the committee is required to file any statement or
report pursuant to the provisions of this chapter.
Mo. Const. art. VIII, § 23.7(20). A
"contribution" includes, among other things, a
payment made "for the purpose of supporting or opposing
the nomination or election of any candidate for public office
or the qualification, passage or defeat of any ballot
measure." Mo. Const. art. VIII, § 23.7(7).
Missouri Ethics Commission investigates alleged violations of
laws pertaining to campaign finance and enforces those laws.
Among other things, the Commission is authorized to receive
complaints that allege violations of campaign finance
disclosure requirements, violations of the provisions of the
Missouri constitution that relate to the official conduct of
state officials, and violations of § 23.3 by a candidate
for elective office. See Mo. Rev. Stat. §
105.957; Mo. Const. art. VIII, § 23.4(1). If the
Commission has reasonable grounds to believe that a complaint
shows a violation of criminal law, the Commission may refer
the complaint for prosecution. See Mo. Rev. Stat.
§ 105.961.2; Mo. Const. art. VIII, § 23.4(4). The
Commission has asserted that it "intend[s] to enforce
Article VIII, Section 23 as required by law." R. Doc.
27, at 4-5.
the amendment was approved, two Missouri political action
committees (PACs)-Free and Fair Election Fund (FFEF) and the
Association of Missouri Electric Cooperatives Political
Action Committee (AMEC-PAC)-sued the Commission and its
members to enjoin enforcement of § 23.3(12)'s ban on
PAC-to-PAC transfers. FFEF receives contributions and makes
independent expenditures to influence voters. FFEF alleged
that it desired to accept contributions from other PACs and
to contribute to those PACs that make only independent
expenditures. AMEC-PAC is a committee formed and maintained
by AMEC, an association of nonprofit, member-owned rural
electric cooperative membership corporations. AMEC-PAC
alleged that it wished to accept contributions from and
contribute to other PACs.
and AMEC-PAC sought declaratory and injunctive relief,
alleging that the ban on PAC-to-PAC transfers was
unconstitutional on its face under the First and Fourteenth
Amendments, and unconstitutional as applied to each of them.
After a hearing, the district court concluded that the
transfer ban was unconstitutional on its face under the First
Amendment and unconstitutional as applied to FFEF. It
therefore permanently enjoined the Commission from enforcing
that provision. The Commission appeals. Because the grant of
injunctive relief turns on purely legal ...