Accountability v. Klahr, 17-1314

• Decision Date: 12 June 2018
• Docket Number: No. 17-1314,17-1314
• Citation: 892 F.3d 944
• Parties: MISSOURIANS FOR FISCAL ACCOUNTABILITY, Plaintiff-Appellee, v. James KLAHR, in his official capacity as Executive Director of the Missouri Ethics Commission Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

892 F.3d 944

MISSOURIANS FOR FISCAL ACCOUNTABILITY, Plaintiff-Appellee,

v.James KLAHR, in his official capacity as Executive Director of the Missouri Ethics Commission Defendant-Appellant.

No. 17-1314

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2018

Filed: June 12, 2018

Julie Marie Blake, Spec. Asst. Atty. Gen., Jefferson City, MO, argued (Joshua D. (Josh) Hawley, Atty. Gen., D. John Sauer, Charles W. Adamson, Asst. Attys. Gen., on the brief), for appellant.

Stephen M. Hoersting, The Gober Group PLLC, Austin, TX, argued (Chris K. Gober, Troy A. McCurry, The Gober Group, PLLC, Austin, TX, Bryan T. White, White Graham Buckley Carr, Independence, MO, on the brief), for appellee.

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

BENTON, Circuit Judge.

James Klahr, in his official capacity as Executive Director of the Missouri Ethics Commission (MEC), appeals the order of the district court¹ declaring unconstitutional and enjoining enforcement of Missouri's 30-day formation deadline for campaign committees, Missouri law section 130.011(8).² See Missourians for Fiscal Accountability v. Klahr , No. 14-4287-CV-ODS, 2017 WL 58588 (W.D. Mo. Jan. 5, 2017). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Under Missouri campaign finance law, chapter 130, a "committee" is "a person or any combination of persons, who accepts contributions or makes expenditures for the primary or incidental purpose of influencing or attempting to influence the action of voters for or against" candidates or ballot measures. § 130.011(7) . Exempt are those not crossing thresholds, such as: (1) any non-candidate individual "who accepts no contributions and ... deals only with the individual's own funds or property;" and (2) any "person or combination of persons, if neither the aggregate of expenditures made nor the aggregate of contributions received during a calendar year exceeds five hundred dollars and if no single contributor has contributed two hundred fifty dollars of such aggregate contributions." § 130.011(7)(a) .

Chapter 130 distinguishes committees by the political activity they engage in. At issue here are "campaign committees":

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 ..., such committee shall be formed no later than thirty days prior to the election for which the committee receives contributions or makes expenditures, and which shall terminate the later of either thirty days after the general election or upon the satisfaction of all committee debt after the general election ....

§ 130.011(8) .

Committees must have a treasurer, maintain an "official depository account," and keep accurate records. §§ 130.021.1 , 130.021.4(1) , 130.036.1 . Committees "shall file a statement of organization ... within twenty days after the person or organization becomes a committee but no later than the date for filing the first [disclosure] report ...." § 130.021.5 . The statement includes, among other things, the committee's name and address, the kind of committee, and the candidate or ballot measure supported or opposed. Id.

Committees must file "disclosure report[s] of receipts and expenditures." § 130.041.1 . Disclosure reports are due: (1) "Not later than the eighth day before an election for the period closing on the twelfth day before the election if the committee has made any contribution or expenditure either in support or opposition to any candidate or ballot measure;" (2) "Not later than the thirtieth day after an election for a period closing on the twenty-fifth day after the election, if the committee has made any contribution or expenditure either in support of or opposition to any candidate or ballot measure ...;" and (3) "Not later than the fifteenth day following the close of each calendar quarter." § 130.046.1 . The Missouri Ethics Commission (MEC) makes statements of organization and disclosure reports available to the public on its website in accordance with section 130.057.

"Any person who purposely violates the provisions of [chapter 130] is guilty of a class A misdemeanor." § 130.081.1 . However, failure "to file any report or statement ... within the time periods specified in [chapter 130]" is "an infraction." § 130.081.2 . See § 556.021.2 ("An infraction does not constitute a crime ...."). "Any person who knowingly accepts or makes a contribution or makes an expenditure in violation of any provision of this chapter ... shall be held liable to the state in civil penalties in an amount equal to any such contribution or expenditure." § 130.072 .

Individuals may file complaints with the MEC alleging chapter 130 violations. § 105.957.1(3) . "When the commission concludes ... that there are reasonable grounds to believe that a violation of any criminal law has occurred, and if the commission believes that criminal prosecution would be appropriate ... the commission shall refer the report" for criminal prosecution. § 105.961.2 . The MEC may also "initiate formal judicial proceedings seeking to obtain" an order to "[c]ease and desist violation of ... chapter 130" or "[p]ay any civil penalties required by ... chapter 130." § 105.961.5 . Finally, the MEC has, "[t]hrough reconciliation agreements or civil action, the power to seek fees for violations in an amount not greater than one thousand dollars or double the amount involved in the violation." § 105.961.4(6) .

II.

Thirteen days before the November 2014 general election, a group formed Missourians for Fiscal Accountability (MFA) as a campaign committee, wanting to accept contributions and make expenditures in support of Proposition 10. MFA sued to enjoin enforcement of the formation deadline, arguing that it violated the First Amendment. The district court granted MFA a temporary restraining order. MFA then received contributions and made expenditures in the days before the election.

After the election, MFA terminated as a campaign committee. The district court dismissed the suit on ripeness grounds. This court reversed and remanded, finding standing, ripeness, and no mootness. See Missourians for Fiscal Accountability v. Klahr , 830 F.3d 789, 793-97 (8th Cir. 2016).

On remand, the district court granted summary judgment to MFA. According to the court, the formation deadline created a "blackout period" that Missouri could not justify under strict or exacting scrutiny. Missourians for Fiscal Accountability , 2017 WL 58588, at *2-4. The MEC appeals.

"This court reviews de novo the district court's grant of summary judgment." MCC Iowa, LLC v. City of Iowa City , 887 F.3d 370, 372 (8th Cir. 2018). Because MFA seeks declaratory and injunctive relief that would "reach beyond the particular circumstances" here, it brings a facial challenge. See John Doe No. 1 v. Reed , 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). To succeed, MFA must "establish that no set of circumstances exists under which [the formation deadline] would be valid;" "that [the formation deadline] lacks any plainly legitimate sweep;" or that it is "overbroad" because "a substantial number of its applications are unconstitutional, judged in relation to [its] plainly legitimate sweep." Phelps-Roper v. Ricketts , 867 F.3d 883, 891-92 (8th Cir. 2017) (last alteration in original), citing United States v. Stevens , 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

III.

"Independent expenditures are indisputably political speech, and any restrictions on those expenditures strike ‘at the core of our electoral process and of the First Amendment freedoms.’ " Minnesota Citizens Concerned for Life v. Swanson , 692 F.3d 864, 870 (8th Cir. 2012) (en banc), quoting Buckley v. Valeo , 424 U.S. 1, 39, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). "Because political [s]peech is an essential mechanism of democracy, the means to hold officials accountable to the people, a precondition of enlightened self-government and a necessary means to protect it, political speech must prevail against laws that would suppress it, whether by design or inadvertence." Id. at 871 (internal quotation marks omitted) (alteration in original), quoting Citizens United v. FEC , 558 U.S. 310, 339-40, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).

The formation deadline makes it unlawful to form a campaign committee within 30 days of the election. See § 130.011(8) (a campaign committee "shall be formed no later than thirty days prior to the election"). An individual or group must form a campaign committee³ to speak in support of or opposition to a particular ballot measure. See §§ 130.011(7) ("a person or combination of persons, who accepts contributions or makes expenditures" to influence the action of voters is a "committee"); 130.011(8) (a "campaign committee" is a "committee" that "shall be formed ... to receive contributions or make expenditures ... to support or oppose ... one or more particular ballot measures"); 130.072 (contributions or expenditures in violation of chapter 130 are subject to civil penalties). Thus, the formation deadline prohibits those who do not form a campaign committee 30 days before the election from speaking.

"When [a state] restricts speech, [it] bears the burden of proving the constitutionality of its actions." McCutcheon v. FEC , ––– U.S. ––––, 134 S.Ct. 1434, 1452, 188 L.Ed.2d 468 (2014) (plurality opinion), quoting United States v. Playboy Entm't Grp., Inc. , 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). "Generally, [l]aws that burden political speech are subject to strict scrutiny ...." Minnesota Citizens Concerned , 692 F.3d at 874 (internal quotation marks omitted) (alteration in original), quoting Citizens United , 558 U.S. at 340, 130 S.Ct. 876.

The MEC argues that strict scrutiny does not apply, because the formation deadline is...