Sixth Circuit Upholds Kentucky Campaign-Finance Limits

CINCINNATI (CN) – Upholding several of Kentucky’s campaign-finance restrictions and ethics laws, the Sixth Circuit overturned a ruling Thursday that found the limits placed an unconstitutional burden on politicians.

Republican State Senator John Schickel and Libertarian candidate David Watson challenged Kentucky’s lobbyist contribution and gift bans in a 2015 federal lawsuit, claiming the prohibitions were unconstitutional.

U.S. District Judge William Bertelsman ruled in 2017 that several of the provisions “burdened ‘core political speech’ and curtailed freedom of association,” but the appeals court panel found otherwise.

The case was argued before the Sixth Circuit last October, with Kentucky Attorney General Andy Beshear, also a current gubernatorial candidate, arguing on behalf of the commonwealth.

Vacating Bertelsman’s decision, the Cincinnati-based appeals court found Schickel and Watson lack standing to bring their claims.

“The legislators offer no affidavit from a lobbyist or his employer regarding these restrictions, and they fail to provide evidence that a specific lobbyist, his employer, or a PAC attempted to help in ways proscribed by the provisions … but was turned away due to the lobbying restrictions,” Senior U.S. Circuit Judge Deborah Cook wrote for the court. “The lack of such evidence dooms their claims.”

Schickel and Watson both argued they have curtailed visits with lobbyists out of fear they might violate the restrictions by accepting a cup of coffee or other triviality that could be considered a gift under the ban, but the panel was not convinced.

Cook, a George W. Bush appointee, cited the 2013 U.S. Supreme Court case Clapper v. Amnesty International and wrote that “the legislators cannot manufacture standing by ‘inflicting harm on themselves based on their fear of hypothetical future harm that is not certainly impending.’”

The panel sided with Kentucky on the constitutionality of the bans, even the removal of a minor – or “de minimis” – exception to the gift ban, and ruled they serve the legitimate government interest of cutting down on corruption.

“The Commonwealth took this action after [the Kentucky Legislative Ethics Commission] recommended it, grounding the recommendation on its research of governmental ethics issues, a task assigned to it by statute,” Cook wrote. “Its research yielded plentiful and detailed newspaper accounts from across the country ‘supporting inferences of impropriety’ arising from gifts of value … including several that discussed how lobbyists and their employers skirted de minimis exceptions with tickets to sporting events, rounds of golf, and cigars.”

Cook’s opinion also pointed out that Senator Schickel was the only member of the Kentucky General Assembly who voted against the removal of the de minimis exception.

“To be sure, [the gift ban] does not forbid any interaction or the utterance of any word between [legislators and lobbyists]. They may associate as often as they wish over a cup of coffee or dinner or baseball game,” the judge wrote. “This law simply requires that, if they do, legislators pay their own way. A fair, reasonable way of preventing quid pro quo corruption and its appearance.”

Schickel and Watson also argued that the bans were unconstitutionally vague, with Schickel claiming he had turned down a tour of a factory “due to a legitimate fear that being lent a hard hat to tour the facility” would violate campaign finance laws.

Judge Cook called the argument “specious,” and reminded Schickel that the statute’s “plain language and the means to resolve questions about its coverage, including advisory opinions, provide fair notice of the conduct it prohibits.”

With its unanimous decision, the panel remanded the case to the district court and vacated an injunction that had stayed enforcement of the statutes.

Senior U.S. Circuit Judge Gilbert Merritt, a Jimmy Carter appointee, and U.S. Circuit Judge Joan Larsen, appointed by President Donald Trump, also sat on the panel.

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