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Free and Fair Election Fund v. Missouri Ethics Commission

United States Court of Appeals, Eighth Circuit

September 10, 2018

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.[1]

          Submitted: April 10, 2018

          Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.


         The Missouri Ethics Commission appeals the district court's[2] 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.


         On 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 constitution.

         At 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).

         The 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.

         After 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.

         FFEF 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 ...

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