Schickel v. Dilger

• Decision Date: 30 May 2019
• Docket Number: Nos. 17-6456/6505,s. 17-6456/6505
• Parties: John SCHICKEL, in his Personal and Official Capacities; David Watson, Plaintiffs-Appellees/Cross-Appellants, Ken Moellman, Jr., Plaintiff-Appellee, v. Craig C. DILGER, in his Official Capacity as Chair and Member, Kentucky Registry of Election Finance ; Rosemary F. Center; Terry Naydan; Reid Haire; Robert D. Mattingley; Chastity Ross; Thomas B. Stephens ; John R. Steffen, Defendants-Appellees, George C. Troutman, in his Official Capacity as Chairman and Member of the Kentucky Legislative Ethics Commission ; Elmer George; Pat Freibert; Tony Goetz; Ken Winters ; Tom Jensen; Sheldon Baugh ; Phil Huddleston; Anthony M. Wilhoit; H. John Schaaf, Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

925 F.3d 858

John SCHICKEL, in his Personal and Official Capacities; David Watson, Plaintiffs-Appellees/Cross-Appellants,

Ken Moellman, Jr., Plaintiff-Appellee,

v.Craig C. DILGER, in his Official Capacity as Chair and Member, Kentucky Registry of Election Finance ; Rosemary F. Center; Terry Naydan; Reid Haire; Robert D. Mattingley; Chastity Ross; Thomas B. Stephens ; John R. Steffen, Defendants-Appellees,George C. Troutman, in his Official Capacity as Chairman and Member of the Kentucky Legislative Ethics Commission ; Elmer George; Pat Freibert; Tony Goetz; Ken Winters ; Tom Jensen; Sheldon Baugh ; Phil Huddleston; Anthony M. Wilhoit; H. John Schaaf, Defendants-Appellants/Cross-Appellees.

Nos. 17-6456/6505

United States Court of Appeals, Sixth Circuit.

Argued: October 18, 2018

Decided and Filed: May 30, 2019

Rehearing En Banc Denied July 11, 2019^*

ARGUED: Andrew G. Beshear, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellants/Cross-Appellees. Christopher D. Wiest, CHRIS WIEST, ATTORNEY AT LAW, LLC, Cincinnati, Ohio, for Appellees/Cross-Appellants. Emily Dennis, KENTUCKY REGISTRY OF ELECTION FINANCE, Frankfort, Kentucky, for Appellees. ON BRIEF: Matt James, La Tasha Buckner, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellants/Cross-Appellees. Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR & ARMSTRONG, LLC, Cincinnati, Ohio, Robert A. Winter, Jr., FORT MITCHELL, KENTUCKY, for Appellees/Cross-Appellants. Emily Dennis, KENTUCKY REGISTRY OF ELECTION FINANCE, Frankfort, Kentucky, for Appellees. Barbara B. Edelman, Haley Trogdlen McCauley, DINSMORE & SHOHL LLP, Lexington, Kentucky, Tara Malloy, CAMPAIGN LEGAL CENTER, Washington, D.C., for Amici Curiae.

Before: MERRITT, COOK, and LARSEN, Circuit Judges.

COOK, Circuit Judge.

One sitting state senator and one prospective candidate for elected office in Kentucky challenged several state campaign finance and ethics laws, claiming violations of their First Amendment rights to free speech and association and Fourteenth Amendment right to equal protection. Kentucky argues that these measures, enacted to prevent corruption and protect its citizens’ trust in their elected officials, comport with the Constitution. The district court, for the most part, disagreed with the Commonwealth. We see it differently.

I. BACKGROUND

John Schickel, the incumbent state senator for the 11th Senatorial District in Kentucky, and David Watson, who unsuccessfully ran for the 6th House District in 2016, brought this suit alleging that several of Kentucky’s campaign finance and ethics statutes violated their rights protected by the First and Fourteenth Amendments. They sued several members of Kentucky’s Registry of Election Finance (KREF) and Legislative Ethics Commission (KLEC), agencies charged with enforcing the campaign finance and ethics laws.

This appeal challenges the now defunct campaign finance provision that restricted the amount a candidate may loan to his campaign. Ky. Rev. Stat. Ann. § 121.150(13). As for the ethics provisions, the legislators challenge seven of them. Of the seven, three groups of two mirroring provisions—one proscribing certain conduct by legislators and the corollary version for lobbyists—impose:

(1) a contribution ban , §§ 6.767(2) and 6.811(6), which prohibits a legislator, candidate for the legislature, or his or her campaign committee from accepting a campaign contribution from a lobbyist, and a lobbyist from making the same;

(2) a regular session contribution ban , §§ 6.767(3) and 6.811(7), which prohibits a legislator, candidate for the legislature, or his or her campaign committee from accepting a campaign contribution from an employer of a lobbyist or a political committee (PAC) during a regular session of the General Assembly, and an employer of a lobbyist from making the same; and

(3) a gift ban , §§ 6.751(2) and 6.811(4), which prohibits a legislator or his spouse from accepting "anything of value" from a lobbyist or his employer, and a lobbyist or employer of a lobbyist from knowingly offering the same to a legislator, candidate, or his family.

The final ethics provision applies only to lobbyists:

(4) a solicitation/treasurer ban , § 6.811(5), which prohibits a lobbyist from (i) serving as a campaign treasurer, and (ii) directly soliciting, controlling, or delivering a campaign contribution to a legislator or candidate.

The district court dismissed the campaign finance claim as moot because a legislative amendment eliminated the provision. As for the ethics provisions, the court found that the laws burdened "core political speech" and curtailed freedom of association, requiring strict scrutiny of every ethics provision except the regular session contribution ban. It ultimately upheld the regular session contribution ban, but found all the other challenged ethics provisions unconstitutional and unenforceable.

Defendants then moved this court for a stay pending appeal, which we granted. The parties cross-appealed.

II. CAMPAIGN FINANCE PROVISION

We begin with the self-funding restriction, repealed in 2017 by the Kentucky legislature, which limited the amount a candidate could personally loan his own campaign. See § 121.150(13) (repealed 2017). Though this court found the provision wholly unconstitutional in Anderson v. Spear , 356 F.3d 651, 673 (6th Cir. 2004), Schickel and Watson nevertheless worry that KREF may yet enforce the statute.

To establish standing under Article III, a plaintiff must show, among other things, an "injury in fact." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In a pre-enforcement challenge, such as here, a plaintiff satisfies the injury-in-fact requirement by alleging "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Susan B. Anthony List v. Driehaus , 573 U.S. 149, 159, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) ). "A threat of future enforcement may be ‘credible’ when the same conduct has drawn enforcement actions or threats of enforcement in the past." Kiser v. Reitz , 765 F.3d 601, 609 (6th Cir. 2014).

Here, the legislators have not shown a credible threat of prosecution. KREF has not enforced this provision since Anderson struck it down. Indeed, "if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances." Women’s Med. Prof’l Corp. v. Voinovich , 130 F.3d 187, 193 (6th Cir. 1997). The legislators cite several alleged enforcements, but all involve other provisions— §§ 121.180 and 121.150(1), (6), (12), and (20) —not this one. Cf. Russell v. Lundergan-Grimes , 784 F.3d 1037, 1049 (6th Cir. 2015) (history of past enforcement against others established injury in fact). Nor have the legislators shown that KREF has any intention to enforce this provision. At its 30(b)(6) deposition, in its motion for summary judgment, and during oral argument before this panel, KREF explicitly disavowed enforcement against the legislators for any violations of this provision. The legislators’ case does not resemble those it cites to support its position.

Thus, because there exists no credible threat of prosecution, the legislators lack standing to challenge this provision. We affirm the district court’s dismissal of the claim on standing grounds.

III. LOBBYING RESTRICTIONS

Before addressing the merits, we consider whether the legislators have standing to assert challenges to the four ethics provisions governing only the conduct of lobbyists. If the legislators cannot establish constitutional standing, "their claims must be dismissed for lack of subject matter jurisdiction." Loren v. Blue Cross & Blue Shield of Mich. , 505 F.3d 598, 607 (6th Cir. 2007). Plaintiffs bear the burden of establishing standing, and they must support each element "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at successive stages of the litigation." Fair Elections Ohio v. Husted , 770 F.3d 456, 459 (6th Cir. 2014) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). The legislators may not rely on mere allegations, but "must set forth by affidavit or other evidence specific facts" to show standing. McKay v. Federspiel , 823 F.3d 862, 867 (6th Cir. 2016) (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ).

"[T]he nature and extent of facts that must be averred ... to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. When he is, "there is ordinarily little question" that the plaintiff has standing. Id. at 561–62, 112 S.Ct. 2130. But when he is not—when his "asserted injury arises from the government’s allegedly unlawful regulation ... of someone else "—we require much more. Id. at 562, 112 S.Ct. 2130. In such circumstances, "causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction." Id. ; ASARCO Inc. v. Kadish , 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (noting that plaintiff’s ability to satisfy the essential elements of standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict"). The burden therefore falls on the plaintiff to present facts showing that the third party’s "choices have been or will be made in such manner as to produce causation and permit redressability of injury." Lujan , 504 U.S. at 562, 112 S.Ct. 2130. This does not preclude a showing of standing, but it ordinarily makes it " ‘substantially more difficult’ to establish." Id. (citation omitted...