Kentucky AG Defends Campaign-Finance Reform in Sixth Circuit

CINCINNATI (CN) – The constitutionality of several Kentucky campaign finance laws was debated Thursday morning before a Sixth Circuit panel, with the state’s attorney general arguing they are necessary to maintain citizens’ confidence in the government.

Republican State Senator John Schickel, Libertarian candidate David Watson and former Kentucky Libertarian Party chairman Ken Moellman sued the members of the Kentucky Registry of Election Finance, or KREF, and the members of the Kentucky Legislative Ethics Commission, or KLEC, in 2015.

Schickel and the other plaintiffs alleged that numerous restrictions on campaign finance and lobbying were unconstitutional, including contribution limits and a prohibition on gifts to legislators and their spouses.

Kentucky made sweeping changes to its campaign finance laws with the passage of Senate Bill 75 in 2017, which mooted several of the plaintiffs’ claims.

However, U.S. District Judge William Bertelsman sided with the plaintiffs on several issues last year.

The so-called “gift ban,” which prevents legislators and their spouses from receiving “anything of value,” was struck down by Bertelsman, who determined the statute was unconstitutionally vague and overbroad.

Bertelsman cited deposition testimony from the executive director of the KLEC, who 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.”

“This testimony alone,” the judge wrote, “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.”

In the same vein, Judge Bertelsman ruled the state’s total ban on campaign contributions from lobbyists and legislative agents was overly broad, and would have to be more narrowly tailored to survive the strict scrutiny required of such laws.

“This statute,” he wrote, “is also overly broad 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.”

Kentucky Attorney General Andy Beshear argued Thursday on behalf of the KLEC, and told the panel of Sixth Circuit judges that the 2017 changes to campaign finance law were of “critical importance to my commonwealth.”

“A government prone to corruption loses the confidence of the people,” he said.

Beshear criticized the district court for its use of strict scrutiny, and claimed all of the measures were “closely drawn” and satisfy the scrutiny required of campaign finance laws.

The AG said the ban on lobbyist contributions “does not eliminate speech.”

“At most, it channels speech,” he said.

U.S. Circuit Judge Deborah Cook asked about the gift ban and, in particular, the removal of an exception that allowed for incidental expenses when a lobbyist hosted a legislator.

“As you’ve heard . . . the gripe being raised by your brother counsel is, ‘This is ridiculous that we can’t get a cup of coffee.’  So, you’ve read the complaints about that, the loss of the de minimis exception, would you address that?” Judge Cook asked Beshear.

“That is an issue of scope or degree,” Beshear replied, which he said is best left to the Legislature.

The AG also reminded the panel that the statute in question includes 14 subsections and 15 exceptions, and that legislators are provided a $150 per diem by the state to cover incidentals.

“I’d love to be a legislator in Kentucky,” U.S. Circuit Judge Joan Larsen quipped.

Attorney Christopher Wiest argued on behalf of Senator Schickel, who attended the arguments.

Judge Cook asked Wiest about the level of scrutiny applied by the lower court.

The attorney responded that strict scrutiny was properly applied because, according to Wiest, “they’re drawing lines based on who the speaker is.”

Judges Cook and Larsen peppered Wiest with questions about his client’s standing, considering Schickel is a legislator and not a lobbyist.

“Why don’t we let the lobbyists assert the rights of the lobbyists?” Judge Larsen asked.

“There is a dual right to give and receive,” Wiest responded.

“That’s interesting,” Larsen replied skeptically.

Addressing the gift ban, Wiest said his client’s dispute is not related to “bags of cash, lavish trips, [or] lavish meals,” but rather the minute expenses that are now completely outlawed.

The attorney called the statute’s language “classic vagueness” and said, “You can drive a truck through the exceptions [in the bill].”

In his rebuttal, AG Beshear told the panel that the campaign finance revisions are “critical to the operation of our government,” and cited evidence that legislators’ votes have been bought in Kentucky for less than $400.

He asked the panel to overturn the lower court’s decision, and said that a remand is not necessary.

Senior U.S. Circuit Judge Gilbert Merritt rounded out the panel.

No timetable has been set for the court’s decision.

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