Anderson v. Spear

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 16, 2004
• Docket: 02-5529
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Anderson, et al. v. Spear, et al. No. 02-5529 ELECTRONIC CITATION: 2004 FED App. 0025P (6th Cir.) File Name: 04a0025p.06 OF ELECTION FINANCE, Frankfort, Kentucky, for Appellees. ON BRIEF: Thomas J. Marzen, James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for UNITED STATES COURT OF APPEALS Appellants. D. Brent Irvin, Janet M. Graham, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, FOR THE SIXTH CIRCUIT Rosemary F. Center, Jennifer B. Hans, KENTUCKY _________________ REGISTRY OF ELECTION FINANCE, Frankfort, Kentucky, for Appellees. HOBART WARD ANDERSON, et X al., - _________________ Plaintiffs-Appellants, - OPINION - No. 02-5529 - _________________ v. > , ALICE M. BATCHELDER, Circuit Judge. Appellant - Hobart Ward Anderson (“Anderson” or “Appellant”) appeals LLOYD E. SPEAR, et al., - the decision of the district court granting summary judgment Defendants-Appellees. - to Defendants-Appellees Kentucky Board of Elections, the - Registry of Finance (“Registry”), the Commonwealth N Attorneys as a class, and the Kentucky Attorney General on Appeal from the United States District Court nine separate claims challenging the constitutionality of for the Eastern District of Kentucky at Ashland. various provisions of Kentucky election law. Having No. 99-00189—Joseph M. Hood, District Judge. concluded that the district court erred in its evaluation of the substantial First Amendment interests asserted by Anderson, Argued: September 17, 2003 we reverse the district court except as to two claims–Anderson’s equal protection claim, and his claim that Decided and Filed: January 16, 2004 the “trigger” provision is unconstitutional as applied–and remand for proceedings consistent with this order. Before: SILER, BATCHELDER, and COOK, Circuit Judges. I.

_________________ Hobart Anderson filed to run as a write-in candidate in Kentucky’s 1999 gubernatorial election. Because he and his COUNSEL slated running mate were not eligible to appear on the ballot for the general election, his campaign was not entitled to ARGUED: Thomas J. Marzen, BOPP, COLESON & receive matching funds under Kentucky’s Public Financing BOSTROM, Terre Haute, Indiana, for Appellants. D. Brent Campaign Act. Anderson alleges that the statutes he Irvin, OFFICE OF THE ATTORNEY GENERAL, Frankfort, challenges proscribed several of the campaign activities he Kentucky, Rosemary F. Center, KENTUCKY REGISTRY wanted to conduct, including: distributing within 500 feet of

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polling places literature instructing voters on how to cast a program in the most recent budget, which states in relevant write-in ballot; soliciting and accepting contributions after the part: date of the general election; accepting cash contributions by selling items at fundraisers; lending over $50,000 of his own Notwithstanding KRS 118.255(3), 121.150, funds to his campaign; and soliciting and accepting 121A.015(5), 121A.020, 121A.030, 121A.040, contributions within twenty-eight days of the election. Mr. 121A.060, and 121A.080, no funds shall be appropriated Anderson therefore filed this suit in October 1999 seeking to or received into the election campaign fund declaratory and injunctive relief pursuant to 42 U.S.C. established by KRS 121A.020, and the Registry of § 1983. The suit challenges nine separate Kentucky statutes Election Finance shall make no transfer of funds to any regulating the conduct of elections and campaign finance: slate of candidates from the election campaign fund for (1) KRS § 117.235(3), which prohibits “electioneering” any election. Notwithstanding KRS 121.150(24) and within 500 feet of polling places; (2) § 121A.080(6), a “turn- 121A.030(5), slates of candidates may accept over” provision requiring campaigns to turn over unexpended contributions within the last 28 days immediately funds to the State; (3) § 121.150(16), prohibiting post-election preceding a primary or general election, and in addition solicitation of contributions; (4) § 121A.050(2), prohibiting to the provisions of KRS 121A.020(5), all contributions cash contributions; (5) § 121.150(13) & (21), providing that to slates of candidates made within the last 28 days a candidate may not loan more than $50,000 of his personal immediately preceding a primary or general election funds to his campaign; (6) §§ 121.150(24) & 121A.030(5), shall be reported to the Registry of Election Finance prohibiting solicitation and acceptance of contributions within within 24 hours of receipt. All other statutes contained twenty-eight days before an election; (7) § 121A in general, in KRS Chapter 121A shall remain in effect for all slates regulating the public financing of elections; of candidates, except that KRS 121A.080(6) shall not (8) § 121A.080(4)-(5), which allows candidates receiving apply, and slated candidates shall be governed instead by public financing to exceed the contributions limit when other KRS 121.180(10), and KRS 121A.030(4) shall not apply, candidates do so; and (9) § 121A.010(11), which defines and all slated candidates may receive contributions from “contribution” as including a candidate’s personal funds. The permanent committees which, in the aggregate, shall not district court granted summary judgment for the Defendants exceed 25 percent of the contributions received by the on all counts. Anderson timely appealed to this court. The slate in any one election up to a maximum of $300,000 parties do not dispute any facts, and all of the issues presented in any one election. in the lawsuit are questions of law. Act of March 23, 2003, ch. 156, 2003 Ky. Laws H.B. 269. II. Accordingly, Appellant will not be subjected to the operation of the public finance system, the 28-day prohibition on This court reviews the grant of a motion for summary contributions prior to elections, or the trigger provision for the judgment de novo. Faughender v. City of North Olmsted, 927 duration of Kentucky’s current budget cycle. The question F.2d 909, 911 (6th Cir. 1991). As an initial matter, we must then is whether Anderson’s claims related to those features of consider whether certain claims in the case are moot. Counsel the public financing system continue to raise issues at oral arguments asked us to take judicial notice of the fact “affect[ing] the rights of the litigants” in this case. North that the Kentucky legislature has defunded the public finance Carolina v. Rice, 404 U.S. 244, 246 (1971). No. 02-5529 Anderson, et al. v. Spear, et al. 5 6 Anderson, et al. v. Spear, et al. No. 02-5529

This court has previously found that Congress may, through candidacy in 1999, and challenges the apportionment of appropriations acts,“suspend, amend, or repeal a statute, so public benefits accomplished by the public funding scheme long as it does so clearly.” Mullis v. United States, 230 F.3d on its face. As is readily apparent, the action of the 215, 217 (6th Cir. 2000). In Mullis, the plaintiff filed a legislature suspending the operation of certain provisions of petition asking the court pursuant to 18 U.S.C. § 925(c) to the campaign law does not eliminate the case or controversy remove his firearm disability. Section 925(c) permits a which existed by the operation of those laws in 1999. district court to review a decision by the Secretary of Furthermore, because these laws are still on Kentucky’s Treasury to deny an application for relief of firearms books, the legislature may choose at any time to allocate disability. However, Congress had passed eight consecutive funds to the public finance program. Indeed, unlike Mullis, appropriations bills prohibiting the Secretary of Treasury in which the legislature evidenced its intent to cease the from expending any funds to review these applications. Id. at operation of the law without regard to budgetary 217. The court found that Congress clearly intended to considerations, here there is nothing to suggest that the suspend all relief that was otherwise statutorily authorized by Kentucky legislature will not choose to refund the campaign defunding such relief. Id. at 218. In Mullis, the issue before scheme at the first fiscally feasible moment. The legislature’s us was whether the court’s jurisdiction under § 925(c) suspension of the operation of extant laws is not sufficient to extended only to reviewing the discretion of the Secretary, or deprive this court of jurisdiction, for is well-settled that whether the federal court had a basis for independent judicial “‘voluntary cessation of allegedly illegal conduct does not review of Mullis’s application for removal of disability. Id. at deprive the tribunal of power to hear and determine the case, 219. The case did not involve a facial challenge, but only i.e., does not make the case moot.’” DeFunis v. Odegaard, addressed Mr. Mullis’s particular petition. Because the 416 U.S. 312, 318 (1974) (quoting United States v. W. T. Secretary had not rendered a decision to review, this court Grant Co., 345 U.S. 629, 632 (1953)). Accordingly, because found that the federal courts lacked jurisdiction. Mr. Anderson’s claims involve a live case or controversy, Kentucky’s recent budgetary legislation does not deprive this Applying to state lawmakers Mullis’s premise that the court of jurisdiction. legislature may “suspend, amend or repeal” a statute by clear operation of appropriation acts, the question arises whether III. the acts of the Kentucky legislature in defunding the various parts of this campaign funding scheme renders Mr. WHETHER KENTUCKY'S RESTRICTION ON ELECTIONEERING Anderson’s claims moot.1 Importantly, Mr. Anderson’s WITHIN 500 FEET OF POLLING PLACES (KRS § 117.235) IS claims are not limited to this budget cycle. Appellant UNCONSTITUTIONALLY OVERBROAD challenges the application of the 28-day prohibition on contributions and the trigger provision as applied to his The Kentucky legislature prohibits campaign activities near polling places on the date of an election: “No person shall, on the day of any election . . . do any electioneering at the polling place or within a distance of five hundred (500) feet 1 of a county clerk’s office or any entrance to a building in There is no claim that the operation of the appropriations act amended or repealed the relevant campaign funding statutes, only that the which a voting machine is located . . . .” KRS § 117.235(3). operative provisions were suspended by the appropriations act. Similarly, Anderson brings a two-pronged challenge to the statute, there is no claim that this court would not have an independent basis for alleging first that the 500-foot buffer zone is generally judicial review so long as there is a valid case o r controversy. No. 02-5529 Anderson, et al. v. Spear, et al. 7 8 Anderson, et al. v. Spear, et al. No. 02-5529

overbroad in violation of the First Amendment, and second Applying this standard, the Burson Court recognized two that the definition of electioneering is unconstitutionally compelling interests for buffer zones around polling places: overbroad because it includes political speech that does not 1) the state’s duty to protect “the right to vote freely for the expressly advocate the election or defeat of candidates for candidate of one’s choice,” id. at 199 (quoting Reynolds v. public office. We examine these arguments in turn. Sims, 377 U.S. 533, 555 (1964)); and 2) the state’s interest in preserving “the integrity and reliability of the electoral Our inquiry is guided by the Supreme Court’s decision in process itself,” id. (quoting Anderson v. Celebrezze, 460 U.S. Burson v. Freeman, 504 U.S. 191 (1992), in which the Court 780, 788 n.9 (1983)). Put more succinctly, the Court examined the constitutionality of a 100-foot “campaign-free recognized the states’ interest in preventing voter intimidation zone” surrounding polling places. First, Burson requires the and election fraud. Burson, 504 U.S. at 206. application of exacting scrutiny to restrictions on political speech around polling places. Burson, 504 U.S. at 198 Having found a compelling interest, the Court then went (noting that to survive review, a statute must be necessary to through the history of measures enacted in the states and in serve a compelling state interest and narrowly drawn to other countries to address voter intimidation and election achieve that end). While exacting scrutiny does apply, the fraud. It concluded that “widespread and time-tested Supreme Court adopted a modified “burden of proof” in cases consensus demonstrates that some restricted zone is necessary in which exercise of a First Amendment right threatens to in order to serve the States’ compelling interests in preventing interfere with the act of voting itself. Id. at 209 n.11. Under voter intimidation and election fraud.” Id. at 206. The Court this modified burden, the state must demonstrate that its therefore upheld a 100-foot buffer zone surrounding a polling response is “reasonable and does not significantly impinge on place. However, of particular relevance to the instant inquiry, constitutionally protected rights.” Id. at 209 (emphasis in the Burson Court refused to provide a bright-line rule as to original) (citation omitted). how far the State could regulate speech around a poll. Id. at 210-11 (“[T]his Court has not employed any ‘litmus-paper The modified burden of proof is an important component test’ that will separate valid from invalid restrictions.”) of the Burson analysis, for it stands as the Supreme Court’s (internal citations omitted). Instead, it offered two indications recognition of the deference due to the states in our federal of how to determine “how far is too far”–that is, when a system of government. The states’ ability to conduct buffer zone is large enough to significantly impinge on elections–particularly for state officers–should not be usurped protected First Amendment rights. First, the Court noted that or interfered with by the federal courts absent a clear violation the difference between the 100-foot boundary upheld and the of the United States Constitution. By modifying the burden, 25-foot boundary recommended by those challenging the law the Burson Court recognized that states are uniquely equipped was “a difference only in degree, not a less restrictive to manage their own elections, which “vary from year to year, alternative in kind.” Id. at 210. Second, the Court clarified and place to place,” making it “difficult to make specific that “[a]t some measurable distance from the polls . . . findings about the effects of a voting regulation.” Id. This governmental regulation of vote solicitation could effectively modified burden therefore assures that the state’s interest in become an impermissible burden akin to the statute struck conducting elections is respected, while assuring that the First down in Mills v. Alabama, 384 U.S. 214 (1966) [(striking Amendment rights are not significantly burdened by down a prohibition on editorials endorsing candidates run on overbroad regulations. election day)].” Id. at 210. Thus, at some undetermined distance, the Burson Court acknowledged, a regulation could No. 02-5529 Anderson, et al. v. Spear, et al. 9 10 Anderson, et al. v. Spear, et al. No. 02-5529

be different in kind insofar as it impermissibly burdens First After finding the existing 50-foot buffer zone inadequate to Amendment speech. address the potential for election fraud and “unnecessary” electioneering, a subsequent Special Commission on Election Appellant asserts that under the Burson standard, the 500- Reform recommended that the buffer zone be increased to foot buffer zone fails because it is not narrowly tailored. 500 feet. The Commission and the Task Force subsequently Appellant’s use of “narrowly tailored” to describe the test is agreed on suggesting 1000 feet. The buffer zone was reduced not precisely correct, and fails to grant the State the deference in the Kentucky House to 500 feet, which is the distance required. While Burson does refer to narrow tailoring, it later ultimately codified in KRS § 117.235. applies the loosened requirement which gives deference to a state regulation so long as it is reasonable and does not While the State does provide ample evidence of Kentucky’s “significantly impinge on constitutionally protected rights.” history of election fraud and corrupt elections practices, Burson, 504 U.S. 209 (emphasis omitted) (citation omitted). glaringly thin is its evidence as to why the legislature, the Applying the Burson “significant impingement” test, we Task Force, or the Commission ultimately arrived at a conclude that the 500-foot buffer zone is facially overbroad. distance of 500 feet. Even Hiram Ely III, Director of the Kentucky Task Force on Election Fraud, cannot recall how The most recent Kentucky Elections Laws had their genesis his Task Force arrived at its proposed recommendation of in 1987, when the Acting Kentucky Attorney General 1,000 feet. Indeed, when pressed in his deposition, Mr. Ely appointed a Task Force to investigate election fraud. The could not even say whether the Task Force would have found Report of the Attorney General’s Task Force on Election 2,000 feet unreasonable: Fraud begins its statement concerning the problem of electioneering near polling places with the justification of Q: [A]ccording to your Task Force report, you preventing corruption: recommended that 1,000-foot be where the line be drawn. I would infer from that that 2,000 feet would Presently, the law allows “electioneering” to occur probably be unreasonable? outside a 50 foot radius from the voting machine. This makes it fairly easy for persons interested in subverting A: I don’t know. We just came up – we came up with the election process to accost voters going to and from that number through the process I described. We thought the polls and harass or intimidate them within close it was reasonable for the reasons I have stated. And proximity of the voting booth itself. that’s all, really, I can say about it. But the Task Force does not stop there, and suggests that the What little discussion is in the record, however, suggests that State’s rationale also may include suppression of protected the State sought through the 500 foot barrier to prohibit all speech: electioneering speech on election day. For example, the minutes of Second Meeting of the Special Commission on Further, many people find even legitimate Election offers the following default rationale for adopting the “electioneering” such as handing out brochures to be 500 foot barrier: offensive when conducted near the polling place, especially when the resulting effect is to be required to A thorough discussion ensued relative to instituting a “run a gauntlet” in order to enter the polling place. statewide ban of electioneering on election day. The No. 02-5529 Anderson, et al. v. Spear, et al. 11 12 Anderson, et al. v. Spear, et al. No. 02-5529

Commission voted by 11 yes and 4 abstentions that there government’s interest is better served through stricter should be a statewide prohibition of electioneering on an penalties than through broad bans on protected speech. election day if such a ban can be established constitutionally. If this is not possible, the Commission Kentucky next claims that the 500-foot barrier puts the vote proposes to recommend prohibiting electioneering as buyer far enough away that he cannot discern signals defined in KRS 117.235 within a 500 foot radius of the commonly used between vote buyers and corrupt poll entrance to the polling place which is generally used by workers/insiders to determine whether the voter has cast his the voters. vote according to the wish of the would-be vote buyer. Referring to a series of photographs taken at polling places It thus appears that Kentucky, to the extent possible, sought depicting a subject signaling by taking off his hat, Appellees to eliminate all electioneering on election day. This Burson assert that "[a]t 100 feet, one can easily see a visual signal simply does not permit. See Burson, 504 U.S. at 210 (“At such as taking off a hat. At 500 feet, it is virtually impossible some measurable distance from the polls, of course, to ascertain whether a signal is being given." This evidence, governmental regulation of vote solicitation could effectively however, appears to be contradicted by the testimony of Mr. become an impermissible burden . . . .”) Ely, who stated during deposition that the problem of signaling was essentially solved by making the buffer zone While unable to provide much in the way of an ex apply to the building, rather than to the polling booth itself: ante justification for the specific distance, Kentucky nonetheless proffers numerous after-the-fact testimonials to Q: During the – during the decision regarding the 1,000- support the decision to expand the buffer zone to 500 feet. foot number, do you recall whether–what were you First, Kentucky cites the affidavit of Darrell Fugate, an talking about a minute ago–the visual signaling–whether admitted vote buyer, for the proposition that he bought votes that was a factor in your-all’s consideration? from distances beyond 100 feet of the polling places. Mr. Fugate's testimony is interesting, but not for the reason cited A: I think it was. And I think that was more related to by the State. Rather, he confirms that the regulation has had moving it outside the building as opposed to away from a detrimental effect on constitutionally protected speech. the polling place. We used the building as the solution. ("[T]he area surrounding the polling places is no longer crowded with people electioneering and attempting to hand This testimony suggests that the major issue in eliminating out cards.") Furthermore, Mr. Fugate confirmed that he signaling was making sure that the building was free of stopped buying votes not because of the 500-foot speech ban, electioneers and vote buyers, rather than placing greater but rather because of the increase in the criminal penalty for geographic distance between the building and the buying votes. Mr. Fugate admits that "[a]fter the legislature electioneers. Indeed, having solved the problem by fixing the changed the statute to make vote selling and vote buying a distance to the building rather than the voting booths, Mr. felony instead of a misdemeanor, I no longer bought votes." Ely’s next statement suggests that something very different By contrast, he speculates that the 500-foot barrier would from preventing voter intimidation and voter fraud motivated have only "hindered" his ability to buy votes. Accordingly, the State to expand the distance outside the building: Mr. Fugate’s testimony undermines the State’s position by demonstrating first, that the 500-foot restriction substantially I think the–and again, I don’t remember how we settled impinges on protected speech, and second, that the on the number. One of the concerns about it, once you No. 02-5529 Anderson, et al. v. Spear, et al. 13 14 Anderson, et al. v. Spear, et al. No. 02-5529

got outside the building, was you didn’t want people to restraining protected speech, which voters disfavored for have to work their way to the building from the parking reasons of mere convenience. Given these statements, it lot. You wanted to be able to have somebody park their should not be surprising that Kentucky closes its argument in car and go vote. If they–if they–there would be plenty of this section by relying on the "right of every person ‘to be left electioneers outside 1,000 feet. If they wanted to see [sic] alone' . . . ." Ky. AG. Br. at 21 (quoting Rowan v. them, they could go see them. But if they wanted to United States Post Office Dept., 397 U.S. 728 (1970)). Thus, simply get out of their car and go vote without having to the government suggests an interest based upon the fact that deal with that, we felt they should be able to do that. "[m]any voters simply do not want to be approached on their way to the voting booth." Accommodating the desire of voters to completely avoid contact with anyone handing out legitimate electioneering Again, this interest is a far cry from the prevention of communications is a far cry from preventing voter corruption and intimidation–the only justifications the intimidation and voter fraud. This theme of completely Supreme Court recognized in Burson to meet the preventing voter contact with those who have a legitimate requirements of exacting scrutiny. The Supreme Court has electioneering message was repeated by Kentucky in its long recognized that “[m]ere legislative preferences or beliefs reliance on the deposition of James Lewis, who ran for county respecting matters of public convenience may well support clerk in 1985. Mr. Lewis spoke about the number of regulation directed at other personal activities, but be campaign workers, and the crowding around polling places. insufficient to justify such as diminishes the [First He testified that with 82 people on the ballot, there were at Amendment] rights so vital to the maintenance of democratic least 150 poll workers. Again, however, it appears that institutions.” Schneider v. State of New Jersey, Town of Appellees’ interests were often at best aesthetic and at worst Irvington, 308 U.S. 147, 161 (1939). Appellees’ reliance on suppression of constitutionally protected speech: Rowan’s limited right to be left alone does not tip the jurisprudential scales. The Supreme Court generally has You know, it was almost impossible to get in to vote. resisted the invitation to extend to public spaces the limited You had handfuls of cards that people came in, threw right of individuals to be left alone inside their homes, even down in the floor, threw down in the polling booth, when the messages may prove to be offensive to the listener. because they weren't interested in those. And I See generally National Socialist Party of Am. v. Skokie, 432 remember, you know, the first election when we had the U.S. 43 (1977) (granting a stay to an injunction of a Nazi 500 feet ban, I had, you know, comment after comment march scheduled to be conducted in a neighborhood that from people, that this was the way elections should be, included numerous holocaust survivors, who respectively had that, you know, they didn't have to run the gauntlet, they voiced their desire to be left alone); see also Cohen v. didn't have to take all these cards that they didn't want to California, 403 U.S. 15 (1971) (noting that the risk of offense take, because they didn't want to offend people by not was not a basis for restricting the ability of a speaker to wear taking their card. It really has changed the appearance of a jacket adorned with a vulgar message in a courthouse, but the polling places. You don't have the crowds hanging rather that those offended may overt their eyes). The around on election day. Kentucky AG points to an exception to the rule that the right to be left alone applies only in the solitude of one’s home: While Mr. Lewis makes one passing reference to intimidation the Supreme Court’s recent decision in Hill v. Colorado, 530 and vote buying, his testimony is primarily concerned with U.S. 703 (2000), applying the right to be left alone to buffer No. 02-5529 Anderson, et al. v. Spear, et al. 15 16 Anderson, et al. v. Spear, et al. No. 02-5529

zones around abortion clinics. However, this decision subjected to any unwanted campaign speech alone cannot be addressed a narrower regulation (100-foot buffer zone with 8- a sufficient basis to regulate that clearly protected speech. foot floating buffers) in the unique context of abortion. As the dissent in Hill noted, the Court’s First Amendment Thus, notwithstanding the justifications offered, the jurisprudence in the abortion context is different in kind from evidence provided by Kentucky suggests that the buffer zone its First Amendment jurisprudence outside the abortion was intended to cut off all electioneering speech. This is context, resembling an “‘ad hoc nullification machine’ that consistent with the distance of the speech restriction, which, the Court has set in motion to push aside whatever doctrines based on the pictures of the polling places in the record, of constitutional law stand in the way of that highly favored would place many electioneers far beyond the point where practice.” Hill, 530 U.S. at 741 (Scalia, J., dissenting) they could come into contact with voters. We need only (quoting Madsen v. Women's Health Center, Inc., 512 U.S. consider how large Kentucky’s 500-foot barrier is to 753, 785 (1994) (Scalia, J., concurring in judgment in part recognize the degree to which the restriction impinges on free and dissenting in part)). It is therefore dubious at best that speech. At first blush, this buffer zone might appear to be this so-called right to be left alone, which under Rowan has five times as large as the 100-foot buffer zone at issue in peculiar application to the home, should be extended to those Burson–an expansion which alone might generate concern. approaching polls, especially where the Burson Court did not But such a calculation fails to take into account the fact that do so. The Cohen case is instructive regarding the limits of the buffer zone runs in all directions from the building. the right to be left alone found in Rowan: Therefore, the buffer zone, unless it is interrupted by private property, covers an area 25 times larger than the area at issue While this Court has recognized that government may in Burson. The regulation has the potential to silence properly act in many situations to prohibit intrusion into constitutionally protected speech for 18 acres around a voting the privacy of the home of unwelcome views and ideas booth, and guarantees that those wishing to express their which cannot be totally banned from the public dialogue, opinions about the election are prohibited from coming within e.g., Rowan v. United States Post Office Dept., 397 U.S. the length of 1 and 2/3 football fields of the polling place. 728, 90 S. Ct. 1484, 25 L. Ed.2d 736 (1970), we have at The geographic scope of this regulation alone raises the same time consistently stressed that 'we are often constitutional concerns. See NAACP v. Button, 371 U.S. 415, 'captives' outside the sanctuary of the home and subject 438 (1963) (“Broad prophylactic rules in the area of free to objectionable speech.' Id., at 738, 90 S. Ct., at 1491. expression are suspect.”). The ability of government, consonant with the Constitution, to shut off discourse solely to protect others Burson permits states to create buffer zones around polling from hearing it is, in other words, dependent upon a places for two purposes only: the prevention of voter showing that substantial privacy interests are being intimidation and the prevention of corruption. Kentucky’s invaded in an essentially intolerable manner. own witnesses make clear that the extreme geographic distance was not selected for these permissible purposes, but Cohen, 403 U.S. at 21. If the right to be left alone provides was intended to prevent voters from being bothered by an insufficient basis for the states to restrict the display of constitutionally protected speech. This Burson does not profanity in the courtroom or Nazis marching down permit. residential streets occupied by objecting holocaust survivors, then the State’s interest in assuring that voters are not No. 02-5529 Anderson, et al. v. Spear, et al. 17 18 Anderson, et al. v. Spear, et al. No. 02-5529

At least one other court has found that a 500-foot buffer assertion, this wafer-thin exception does not cure the zone fails the standard established in Burson. See Calchera overbroad speech regulation. v. Procarione, 805 F. Supp. 716 (E.D. Wis. 1992). Appellees attempt to distinguish Calchera by noting that Kentucky’s Furthermore, while it is laudable (and requisite) that the statute has an exception for electioneering on private Kentucky statute exempts private property, this carve-out property, while the statute at issue in Calchera did not. does very little for voting places surrounded by public Appellees therefore argue that at voting places surrounded by parking lots and roads. The problem of buffer zones private property, electioneering may occur within 500 feet, surrounding urban voting places was recognized in Louisiana thereby obviating what would otherwise be 750,000 sq. feet v. Schirmer, 646 So.2d 890, 901 (La. 1994), in which the of enforced silence. But the statute’s exception is far court noted that buffer zones raise serious concerns narrower than Appellees would have this court believe. The private property exception reads: in a crowded urban context, where, because of greater population density, polling places tend to be more Nothing contained in this section shall prohibit closely situated. In such circumstances the 600 foot electioneering conducted within a private residence or [buffer zone] radius may often include a large number of establishment other than that in which the polling place surrounding streets, alleyways, and neutral grounds, with is located by persons having an ownership interest in the application of the statute as written stifling political such property. speech in traditional public fora.

KRS § 117.235(3) (emphasis added). This exception is Id. Accordingly, for urban voting places in Kentucky, the substantially narrowed in two ways by its own terms. First, 500-foot barrier does create 750,000 sq. feet of silence, and the word “within” makes the exception virtually non-existent threatens to stifle speech in public fora. The fact that the by prohibiting any political speech outside the interior State recognizes that it may not trample free speech within confines of the actual house or business. Based upon the private property does not relieve it of its obligations under plain language of the statute, an individual who owns a house Burson to avoid significantly impinging on First Amendment within 500 feet of a polling place may not display a political rights on public property. yard sign, or stand on his lawn or near the edge of his property distributing literature, because this speech would not To contrast Calchera, Appellees point this court to be “within” a private residence or establishment. Indeed, the Schirmer v. Edwards, 2 F.3d 117 (5th Cir. 1993), in which the only place that the property owner would be free to speak Fifth Circuit upheld Louisiana’s 600-foot buffer zone around would be physically inside his own home. It strains credulity polling places. But see Louisiana v. Schirmer, 646 So.2d 890 to assert that a statute is narrowly tailored because it exempts (finding that a 600-foot buffer zone applied to all political residential living rooms. Second, the statute only exempts speech was overbroad). The Fifth Circuit found that speakers who have an ownership interest in the property. Louisiana had a compelling interest in keeping poll Therefore, the owner of a home or business could not invite workers–who the State demonstrated were used to intimidate a campaign worker into her home or establishment to speak voters–from impeding the voting process, and suggested that about the election without running afoul of the 500-foot the difference between Louisiana’s previous 300-foot barrier restriction on campaign speech. Contrary to the State’s and the 600-foot barrier is only a difference in degree. Id. at 122. By contrast, the evidence presented by Kentucky’s own No. 02-5529 Anderson, et al. v. Spear, et al. 19 20 Anderson, et al. v. Spear, et al. No. 02-5529

witnesses suggests that the 500-foot barrier is different in treated expenditures that were made by individuals other than kind: it is designed to prevent voters from having contact the candidate or the candidate’s campaign as subject to with any speech whatsoever immediately prior to voting. contribution limitations if the expenditure satisfied the vague This overbroad restriction significantly impinges on protected requirement of being “relative to a clearly identified speech, and fails the test established by Burson. candidate.”2 In interpreting this section, however, the Court was confronted with a substantial statutory vagueness and Overbreadth of “Electioneering” overbreadth issue. See McConnell v. Federal Election Comm’n, No. 02-1674, slip op. at 83 (U.S. Dec. 10, 2003). If Appellant also challenges the 500-foot barrier by claiming the Court did not circumscribe the term “relative to,” the that its restriction on “electioneering” is overbroad, and regulation could apply to broad categories of issue-related captures more constitutionally protected speech than is speech, which may or may not have any relation to the necessary to promote the State’s interest. The 500-foot buffer election or defeat of specific candidates. In order to avoid zone prescribed by Kentucky law applies to electioneering, overbreadth, the Court utilized a bright-line rule, and found which is defined to include “the displaying of signs, the that “relative to” referred only to expenditures using terms of distribution of campaign literature, cards, or handbills, the express advocacy, which it defined as words such as vote for, soliciting of signatures to any petition, or the solicitation of elect, support, cast your ballot for, Smith for Congress, vote votes for or against any candidate or question on the ballot in against, defeat, and reject. Id. at 83-84; see also Buckley, 424 any manner, but shall not include exit polling.” KRS U.S. at 44 & n.52. By offering a narrowing construction, the § 117.235(3). Counsel for the Kentucky State Board of Supreme Court interpreted the statute so as to avoid sweeping Elections informed Mr. Anderson that distributing in more protected speech than is necessary to prevent instructions to voters on how to cast a write-in votes “would corruption. be considered ‘electioneering’ and, therefore would be subject to the restrictions of KRS § 117.235 (e.g., [sic] this practice Anderson asserts that the rationale behind the express would be precluded at the polling place or within five- advocacy distinction applies with equal force in the Burson hundred (500) feet of the voting place, etc.).” context. Kentucky responds by noting that Burson, which was decided after Buckley, did not make any distinction Mr. Anderson challenges the buffer zone as overbroad between issue and express advocacy. But it would be extreme based on the content proscribed by the definition of indeed to infer a rejection of the theory from silence, electioneering. Specifically, Anderson suggests that buffer especially where there is no evidence suggesting that the zones should be applied only to “express advocacy,” and not argument was ever raised before the Burson Court. to “issue advocacy.” To understand the difference between express advocacy and 2 issue advocacy, we must look to the seminal case of Buckley The term “independent expenditure,” which refers to money spent v. Valeo, 424 U.S. 1 (1976). In Buckley, the Supreme Court by an individual to expressly advocate the election o r defeat of a clearly identified candidate, should not be confused with candidate or campaign interpreted a provision of the Federal Election Campaign Act expend itures. Under Buckley, candidate or campaign expenditures may (“FECA”) that capped the amount of independent not be limited, because such limitations would operate as a direct expenditures an individual could make “relative to a clearly limitation on the speech of the cand idate. Independent exp enditures, identified candidate . . . .” Id. at 39. The statute therefore however, are treated like con tributions, and under Buckley may be subjected to limitations. No. 02-5529 Anderson, et al. v. Spear, et al. 21 22 Anderson, et al. v. Spear, et al. No. 02-5529

Kentucky begins its opposition to applying an issue communication” raised “none of the vagueness concerns that advocacy/express advocacy distinction by stating that “[n]o drove our analysis in Buckley,” the Court found that the court has ever applied these concepts to the protection of the express advocacy distinction was not necessary. Id. at 87. In integrity of the polling place.” For this proposition, Kentucky eschewing the express advocacy distinction, the Court also again cites Schirmer v. Edwards, in which the Fifth Circuit relied upon substantial evidence that the line between express upheld a complete ban on politicking within a 600-foot zone and issue advocacy had become “functionally meaningless” of a polling place. Appellees interestingly fail to address the as applied to the Federal Election Campaign Act. Id. at 86. subsequent decision of the Louisiana Supreme Court in that Accordingly, while the McConnell Court disavowed the very case, which did apply something like an issue theory that “the First Amendment erects a rigid barrier advocacy/express advocacy distinction. In Louisiana v. between express advocacy and so-called issue advocacy,” it Schirmer, the court found that a complete ban on all political nonetheless left intact the ability of courts to make speech (that is, both issue advocacy and express advocacy) distinctions between express advocacy and issue advocacy, within 100 feet of a polling place would likely pass muster. where such distinctions are necessary to cure vagueness and However, the court struck down the same provision when it overbreadth in statutes which regulate more speech than that was extended out to 600 feet, because at such a great distance for which the legislature has established a significant it significantly impinged upon First Amendment rights by governmental interest. And McConnell in no way alters the sweeping in adjacent alleys, sidewalks, and other property basic principle that the government may not regulate a traditionally open to political discourse. See 646 So.2d at broader class of speech than is necessary to achieve its 901. significant interest. We must also take note of the Supreme Court’s recent Unlike the statute at issue in McConnell, Kentucky’s statute decision in McConnell v. Federal Election Commission. In is vague, sweeping in, inter alia, “the displaying of signs, the McConnell, the Supreme Court revisited the express distribution of campaign literature, cards, or handbills . . . .” advocacy/issue advocacy line first drawn in Buckley. See KRS 117.235(3). While this language could be interpreted as McConnell, slip op. at 83-86. The McConnell Court stated limited to express advocacy, the Kentucky State Board of that: Elections has chosen a broader–indeed an overbroad– interpretation of the statute in finding that instructions on how a plain reading of Buckley makes clear that the express to cast an absentee ballot constitute electioneering. Also advocacy limitation, in both the expenditure and unlike McConnell, the record here is devoid of evidence that disclosure contexts, was the product of statutory such a broad definition is necessary to achieve the State’s interpretation rather than a constitutional command. In interest in preventing corruption–or, to use narrowly reading the FECA provisions in Buckley to McConnell’s words, that an express advocacy line would be avoid problems of vagueness and overbreadth, we “functionally meaningless” as applied to electioneering nowhere suggested that a statute that was neither vague proximate to voting places. nor overbroad would be required to toe the same express advocacy line. Accordingly, because Kentucky’s statute is vague and because the State has failed to provide any evidentiary Id. at 84-85. Because the Court found that the Bipartisan support for regulating both express and issue advocacy, we Campaign Reform Act’s definition of “electioneering find that this Court should apply a limiting construction. The No. 02-5529 Anderson, et al. v. Spear, et al. 23 24 Anderson, et al. v. Spear, et al. No. 02-5529

reasoning of Buckley, McConnell, Schirmer, and Burson The Kentucky Attorney General objects that a narrowing suggests that a prophylactic restriction which extends to issue construction of the term “electioneering” would have dire advocacy—that is, protected speech which does not directly consequences, and points to Ellis v. Meeks, 957 S.W.2d 213 seek to elect or oppose specific candidates—cannot be (Ky. 1997), for support. In Ellis, a candidate was found to maintained unless the state demonstrates that the limitation have violated KRS 117.235 by, inter alia, bringing chicken to was necessary to prevent intimidation and election fraud. poll workers and making it available to voters at polling Because Kentucky has failed to demonstrate that interest here, places. Appellees suggests that under the Appellant’s theory, we apply a narrowing construction to the term a candidate could engage in “all manner of improper conduct “electioneering,”and find that it may permissibly apply only that may or may not constitute ‘express advocacy’” within to speech which expressly advocates the election or defeat of 500 feet of a polling place. They offer a parade of horribles, a clearly identified candidate or ballot measure. suggesting that such a rule would allow “a candidate [to] stand within 500 feet of the polls and hand out $100 bills or The question of whether Kentucky may regulate issue half pints of whiskey to the voters as they enter the polling advocacy proximate to the polls raises an issue of broad place.” As the Appellant rightly responds, such actions constitutional import. While Mr. Anderson’s particular would be conduct–not issue advocacy–and therefore would be speech–i.e., providing instructions on how to vote for write-in regulable whether or not they occurred within 500 feet of a candidates–at first glance looks like a relatively narrow class polling place. Indeed, many such actions would be covered of speech, his legal challenge to a definition of electioneering by Kentucky’s vote-buying statute. See KRS § 119.205 which includes issue advocacy raises constitutional concerns (“Any person who makes or offers to make an expenditure to about a broad class of speech. The Kentucky State Board of any person, either to vote or withhold his vote, or to vote for Elections fails to explain why providing instructions on how or against any candidate or public question at an election shall to cast a write-in vote would constitute “electioneering” for be guilty of a Class D felony.”) the purposes of the statute. Thus, as best we can tell, the Kentucky law as interpreted by the Board of Elections would Accordingly, because the statute is overbroad in that it forbid an individual to remind voters to fill in the ovals prohibits speech over too much geography, and because, completely on optical scan ballots. Given the Board’s absent a narrowing construction it prohibits more speech than decision, it would also appear that individuals would be is necessary to meet the State’s protected interest, the decision prohibited from displaying signs or distributing leaflets which of the district court must be reversed. fall into core issue advocacy: that is, promoting issues rather than specific candidates. If “electioneering” includes Mr. IV. Anderson’s instructing voters on how to cast a write-in vote, does it also include, for example, parents urging voters to WHETHER KENTUCKY’S DEFINITION OF “CONTRIBUTION” “support our schools”? All issue-related speech is chilled by (KRS § 121A.010(11)) IS UNCONSTITUTIONAL ON ITS FACE the Board’s interpretation of “electioneering.” However, the State has failed to provide evidence to support a finding either In addressing Appellant’s numerous challenges to that a regulation so broad is necessary to prevent corruption Kentucky’s campaign finance statutes, we begin with a and voter intimidation, or that the regulation does not challenge to one of the fundamental terms in Kentucky’s significantly impinge on the rights protected by the First regulatory scheme: “contribution.” Amendment. No. 02-5529 Anderson, et al. v. Spear, et al. 25 26 Anderson, et al. v. Spear, et al. No. 02-5529

Kentucky’s campaign finance statute defines “contribution” is referred to as a trigger provision, which states that if a non- to include any “[p]ayment, distribution, loan, deposit, or gift participating candidate receives more than $1.8 million in of money or other thing of value . . . .” KRS § 121A.010(11). contributions–where contribution includes disbursements by This definition is broad, and on its face includes the candidate to his own campaign–then the participating disbursements by candidates to their own campaigns. Indeed, candidate is released from the expenditure ceiling, and may other segments of Kentucky’s statutory scheme rely upon this again receive 2-for-1 matching dollars. broad definition of contribution to indirectly regulate these internal disbursements. In Gable v. Patton, 142 F.3d 940 (6th Appellant challenges the definition of “contribution” here, Cir. 1998), this court addressed a challenge to KRS arguing that the trigger deterred him from making § 121A.030(5), which, with limited exceptions, prohibits a expenditures. While the challenge is focused on how the term candidate from receiving a contribution within 28 days of an “contribution” is used in the context of the trigger, the broad election. Because “contribution” included disbursements definition is not found in the section of the code related to the made by the candidate to his own campaign, the 28-day ban trigger, but rather is given at KRS § 121A.010(11)(a) and restricted the ability of a candidate to spend any money not applied throughout the regulatory scheme. Accordingly, for already in the campaign coffers during the final 28 days. this court to apply a facial challenge to the term Gable, 142 F.3d at 944. In reviewing the statute, this court “contribution” only within the context of the trigger would looked to Buckley, and noted that the Supreme Court require us to ignore the very structure of the statute. “explicitly rejected a lower court’s attempt to characterize Therefore, we must examine whether the term “contribution,” ‘the personal funds expended by the candidate on his own defined to include candidates’ disbursements to their own behalf as a contribution rather than an expenditure.’” Id. at campaigns, is facially constitutional. We conclude that it is 952 (citing Buckley, 424 U.S. at 52-53 n.58). This court not. therefore struck down the 28-day prohibition as applied to “internal” contributions, because the regulation, while using As this court noted in Gable, Buckley drew a line in the the term contribution, operated as an impermissible limitation sand, and prohibited the government from restricting a on candidate expenditures. This distinction is of particular candidate’s ability to make expenditures on his own behalf. import because of the dichotomy Buckley recognized between By defining contribution to include contributions by the contributions and expenditures. Candidate expenditures may candidate to his own committee, the statute runs the risk of not ordinarily be capped (except as a condition of limiting expenditures. While Kentucky avoids the brunt of participation in public funding program), because such this problem by exempting candidate contributions to their ceilings “impose[ ] a substantial restraint on the ability of own campaigns from otherwise applicable contribution limits, persons to engage in protected First Amendment expression.” the problem still exists in those sections of the code where Buckley, 424 U.S. at 52. candidate contributions to their own campaigns are not exempted from regulation. Thus, by failing to exempt This, however, is not the only place in which the regulatory candidate contributions to their own campaigns from the scheme relies upon a definition of “contribution” to include trigger provision, Kentucky applies an indirect regulation on candidate contributions. Kentucky offers 2-for-1 matching expenditures. funds for those who participate in their public funding program. Participating candidates must agree to limit their As tempting as it might be to offer a narrowing construction expenditures to $1.8 million. The statute also contains what here, the language of the statute does not permit it. Unlike the No. 02-5529 Anderson, et al. v. Spear, et al. 27 28 Anderson, et al. v. Spear, et al. No. 02-5529

definition of electioneering communication, which could be program. Rather, Appellant argues that the statute (both plausibly and facially read to apply only to express advocacy, facially and as applied) violates the First Amendment and the the definition of contribution is not susceptible of a limited Takings Clause of the Fifth Amendment by implicating those reading, and to save it would require this court to take out its campaign slates that do not participate in the public finance blue pencil to add an exception—for candidates’ contributions system. to their own campaign accounts—to the definition. This kind of modification is reserved for the legislature. It is for this In the trial court, Kentucky conceded that “if read as court to decide whether the definition of contribution, written applicable to both participating and non-participating as it is, meets the requirements of the Constitution. Because candidates, KRS § 121A.080(6) ‘would create a host of Kentucky’s definition of contribution includes what are constitutional problems.’” In order to avoid these problems, candidate expenditures, and because this definition is relied Kentucky urged the trial court to apply a form of the Canon upon by other segments of the regulatory scheme to indirectly of Constitutional Avoidance, which states that if there are two limit candidate expenditures, the statute infringes upon permissible statutory interpretations, a court should choose constitutionally protected speech. Accordingly, the district the interpretation that will save the statute. See, e.g., Rust v. court erred, and the definition of contribution in KRS Sullivan, 500 U.S. 173, 190-91 (1991). The district court, § 121A.010 must be struck down. relying on Kentucky’s alternative reading, upheld the statute.

V. Appellees’ alternative reading relies on the fact that the statute requires disgorgement of “[t]he unexpended balance WHETHER KENTUCKY’S REQUIREMENT THAT CAMPAIGNS of contributions and fund transfers in a candidate campaign “TURN OVER ” UNEXPENDED CONTRIBUTIONS AND FUND account of a slate of candidates.” Registry Br. at 10 (quoting TRANSFERS TO THE COMMONWEALTH (KRS § 121A.080(6)) KRS § 121A.080(6) (emphasis added)). Emphasizing the IS CONSTITU TIONAL O N ITS FACE AND AS APPLIED TO A phrase “and fund transfers,” Appellees assert that “[b]y its WRITE -IN SLATE OF CANDIDATES plain meaning, the statute contemplates an account with commingled funds, which include publicly financed, Kentucky law requires disgorgement of campaign funds matching dollars.” Id. at 10-11. remaining in a campaign account after an election. Specifically, the relevant statute provides that: In order to succeed on the Constitutional Avoidance theory, the reading proffered must be permissible–that is, it cannot be [t]he unexpended balance of contributions and fund contrary to the plain language of the statute. We think it is a transfers in a candidate campaign account of a slate of strained reading indeed to find that the statute applies only to candidates which remains after all financial obligations those candidate slates that have both unexpended of the particular election for which the account is contributions AND fund transfers. Rather, the natural and established have been satisfied shall be forwarded to the grammatical reading of the sentence is that BOTH types of registry for deposit in the fund when the account is funds are subject to disgorgement–whether the candidate has closed. one or both types of funds in his account. KRS § 121A.080(6). Appellant does not dispute that the In addition to the natural and grammatical reading of the statute may be applied to participants in the public financing language, it is useful to look at the statute as a whole. No. 02-5529 Anderson, et al. v. Spear, et al. 29 30 Anderson, et al. v. Spear, et al. No. 02-5529

Kentucky demonstrated that when it wished to specify Chevron U.S.A., Inc. v. Natural Resources Defense Council, participating or non-participating slates of candidates, it was Inc., 467 U.S. 837, 844 (1984). In order to demonstrate that capable of doing so with clarity. Indeed, just a few short lines such deference is due to the Kentucky Registry of Election above this subsection, the statute ably names both Finance, the agency must, at the very least, establish under participating and non-participating slates with reasonable Kentucky law that the legislature intends ambiguities or gaps clarity: to be treated as delegations to administrative agencies. The agency makes no attempt to do so, and accordingly any claim If the registry makes a finding of fact, after a public to Chevron deference must fail. hearing of which all slates of candidates for Governor and Lieutenant Governor shall be notified, that in the The Appellees then argue that the claim is not ripe, because course of a primary election, runoff primary election, or the Registry has never sought to enforce the provision against regular election campaign a slate of candidates for Mr. Anderson or any non-participating slate of candidates. Governor and Lieutenant Governor that has not accepted Appellees further assert that they would be precluded from the provisions of this chapter has received contributions enforcing the provision based upon their previous litigation or made expenditures in excess of the expenditure limit posture, in which they argued that the provision does not as provided in KRS 121A.030(1), the registry shall apply to non-participating slates. Kentucky would appear to certify that those slates of candidates that have elected to be correct insofar as Anderson brings the challenge as become eligible for fund transfers or may in the future applied. However, Anderson also brings a facial challenge to elect to become eligible for fund transfers shall be the overbreadth of the act. Anderson rightly notes that facial released from expenditure limitations . . . . challenges have been permitted even where the agency interpreted a provision in such a way as to preclude KRS § 121A.080(4)(a) (emphasis added). Thus, if the enforcement. Thus, in Virginia Soc’y for Human Life, Inc. v. legislature intended the disgorgement provision to apply only FEC, 263 F.3d 379, 388-90 (4th Cir. 2001) (“VSHL”), in a to participating slates of candidates, reasonable rules of case involving a facially applicable regulation which had not construction force us to presume that it would have specified been applied to its challengers, the Fourth Circuit found the “participating” slates as it did just a few sentences earlier. case ripe because the agency had not promulgated a rule Because Kentucky’s suggested reading of the statute does not exempting the parties from the regulation. Id. Similarly, here comport with the plain language of the statute, the narrow but there is no evidence that the Registry has issued such a implausible reading proffered by the State cannot be relied regulation, and, notwithstanding its harkening to previous upon under the Canon of Constitutional Avoidance. litigation posture, there is nothing to prevent Appellee from promulgating a policy tomorrow applying the statute to non- Appellees alternatively assert that their interpretation of the participating slates in future elections. Therefore, because a statute is entitled to Chevron deference. Appellees, however, party may challenge a statute based upon the “assumption that cite no case for the proposition that Chevron deference the statute's very existence may cause others not before the applies to state agency determinations. Chevron deference is court to refrain from constitutionally protected speech or predicated on the idea that legislative gaps serve as expression[,]” the facial challenge is ripe for adjudication. delegations from Congress to administrative agencies, whose Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). determinations are given controlling weight unless they are “arbitrary, capricious, or manifestly contrary to the statute.” No. 02-5529 Anderson, et al. v. Spear, et al. 31 32 Anderson, et al. v. Spear, et al. No. 02-5529

Having disposed of Appellees’ alternative arguments, we Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), for are left with a statute that Appellees concede suffers from a the proposition that: host of constitutional problems. It is clear that the disgorgement constitutes a per se taking for public use. [p]ost-election time limits . . . far more clearly address See Brown v. Legal Foundation of Washington, 123 S. Ct. corruption and its appearance because the election has 1406, 1418-1419 (2003) (finding that a state’s act of taking resolved the critical contingency of which candidate will funds out of an IOLTA account would constitute a per se, hold office. We think this latter impact on associational rather than a regulatory taking). The Fifth Amendment to the rights is narrowly tailored to further compelling state United States Constitution therefore requires just interests. compensation, which the State does not provide to those who do not participate in the public funding program. Therefore, Id. at 630. The reasoning of the court and of Appellees who the district court erred in finding the disgorgement provision rely on this argument appears to be that knowledge of the facially constitutional. identity of the successful candidate creates a unique risk of corruption after an election–a unique risk that makes an VI. absolute ban on post-election contributions narrowly tailored to prevent that appearance of corruption. Of course, this WHETHER KENTUCKY’S BAN ON ALL POST -ELECTION unique risk is a double-edged sword. While it may be that CONTRIBUTIONS (KRS § 121.150(16)) IS CONSTITUTIONAL post-election contributions are more susceptible to the ON ITS FACE impression or appearance of corruption when those contributions are made to the winning candidate, the KRS § 121.150(16) prohibits a candidate or his agents from appearance of corruption all but disappears when that same soliciting or accepting contributions after the date of the contribution is made to a losing candidate. general election. Relying in large part upon Buckley, the McConnell Court recently restated that contribution limits Furthermore, the unique risk approach appears to be an must be “closely drawn to match a sufficiently important attempt to apply the state interest analysis twice, and to skip [governmental] interest.” McConnell, slip op. at 25-26 over the closely drawn (or tailored) component of the Buckley (internal quotations and citations omitted). analysis. Thus, to accept Appellees’ argument is to find that the State has a sufficient state interest in preventing Kentucky asserts that the statute advances its interest in corruption, and the State’s actions are narrowly tailored avoiding the appearance of quid pro quo corruption. Because because ex post election contributions are especially Buckley recognized that avoiding corruption and the corrupting. But it is not the ban on making contributions after appearance of corruption is sufficient to justify limitations on the election that effectively prevents this appearance of contributions, there is little doubt that Kentucky has met its corruptions; it is Kentucky’s $1,000 contribution limit. While burden of demonstrating a sufficiently important interest. See a contribution to a winning candidate may be considered a Buckley, 424 U.S. at 26-27. “sure bet” after the election, the contribution cap prevents the late-comers from being perceived as obtaining or from The question then is whether the regulation is closely actually obtaining any more influence than that which a pre- drawn to avoid an unnecessary abridgment of associational election contributor could muster from a maximum freedoms. On this point, the district court relied on Alaska v. contribution. No. 02-5529 Anderson, et al. v. Spear, et al. 33 34 Anderson, et al. v. Spear, et al. No. 02-5529

In further support of the unique problem of post-election that the restriction applied to candidates who do not corruption theory, both the district court and Appellees cite to participate in the public funding scheme, and that campaign Ferre v. Florida ex rel Reno, 478 So.2d 1077 (Fla. Dist. Ct. paraphernalia purchased from the campaign constitutes a App. 1985), in which that court warned that: contribution for purposes of the act. Accordingly, candidates in Kentucky are prohibited from selling a campaign button or if post-election contributions were allowed, a candidate a bumper sticker for one dollar–or less–without receiving the could make large expenditures, secure in the knowledge purchase/contribution price for the item in the form of an that immediately after the election members of some negotiable instrument which identifies both the donor and currently unpopular group whose support for the recipient. candidate had not theretofore been disclosed would send in contributions to pay off the deficit. The result, of The district court recognized, and the Registry concedes, course, would be that voters may have been deceived into that this cash prohibition is essentially a disclosure voting for a candidate with allegiances, or at least requirement. Relying on Buckley’s determination that the bedfellows, with which they violently disagree. disclosure requirements of the federal act were constitutional, the district court upheld Kentucky’s provision. 478 So.2d at 1080 n.10. While disclosure does have a signaling effect, see Buckley, 424 U.S. at 67 (noting that Buckley requires that disclosure requirements be subjected “[t]he sources of a candidate’s financial support also alert the to “exacting scrutiny” because of the “significant voter to the interests to which a candidate is most likely to be encroachment on First Amendment rights . . . that compelled responsive”), Ferre overstates the concern, at least as it might disclosure imposes . . . .” See Buckley, 424 U.S. at 64. apply here. Because Kentucky has a statute capping the Placing significant weight on a recent decision of this court amount that any contributor may give to a candidate, concerns which held that a provision of Akron’s prohibition of cash about a donor “purchasing” undue influence are substantially contributions in excess of $25 did not impose an undue mitigated. burden on the right of association, see Frank v. City of Akron, 290 F.3d 813 (6th Cir. 2002), Appellees argue that Accordingly, because the post-election restriction is not Kentucky’s disclosure requirement in the form of a closely drawn, but rather impinges on associational rights prohibition on all cash contributions survives this exacting even where there is little risk of corruption following an scrutiny. The Frank Court found that the Act’s requirement election, the decision of the district court is reversed on this that modes of payment identify the contributor did not burden question. the right to associate, and further declared that “[t]he provision serves the significant governmental interest of VII. accountability by forcing contributions to be traceable.” Id. at 819. WHETHER KENTUCKY’S BAN ON CASH CONTRIBUTIONS (KRS § 121A.050(2)) IS CONSTITUTIONAL AS APPLIED While Appellees suggest that Frank disposes of this question, such a finding would ignore the difference between Pursuant to KRS § 121A.050(2), Kentucky prohibits any the $25 dollar limitation at issue there, and the first penny cash contributions to gubernatorial candidates. In an requirement at issue here. While this may at first glance Advisory Opinion issued to Anderson, the Registry clarified appear to be a difference in degree and not in kind, it is clear No. 02-5529 Anderson, et al. v. Spear, et al. 35 36 Anderson, et al. v. Spear, et al. No. 02-5529

that Kentucky’s regulation cannot survive exacting scrutiny small amounts, rather than a ban on the use of cash, the because it is not “closely drawn” to avoid unnecessary federal statute provided for disclosure without placing undue abridgment of associational freedoms. Buckley, 424 U.S. at burdens on those who wish to associate. 25. The State’s ban on all cash contributions effectively forecloses speech by a large body of individuals who will be Because the Kentucky statute is not closely drawn to avoid chilled from making a de minimis contribution. While the unnecessary abridgment of associational freedoms, we must parties do not flesh this argument out, we think that as a reverse the district court’s judgment finding the prohibition matter of common sense, a contributor will be substantially on cash contributions constitutional. less willing–or able–to use a negotiable instrument to make a purchase or contribution of, say, $5 or less than to use such VIII. a financial instrument to make a purchase of $25 or more. See, e.g., Fior D'Italia, Inc. v. United States, 242 F.3d 844, WHETHER KENTUCKY’S PROHIBITION ON A CANDIDATE ’S 846 (9th Cir. 2001), rev'd on other grounds, Fior D'Italia, LOANING HIS CAMPAIGN MORE THAN $50,000 (KRS Inc. v. United States, 536 U.S. 238 (2002) (noting that § 121.150(13) & (21)) IS CONSTITUTIONAL ON ITS FACE AND experience demonstrates that consumer spending habits differ AS APPLIED based on whether the transaction is conducted in credit or cash). Thus, to the extent that Kentucky’s interest in Kentucky prohibits candidates from loaning their respective preventing corruption descends to the smallest contributions, campaigns more than $50,000 in a given election. KRS the State could have easily promoted disclosure by requiring § 121.150(13). Anderson challenged this provision as being the campaigns to take the name of the person making the akin to an unconstitutional restriction on candidate contribution.3 expenditures.

The Buckley decision itself is instructive of how a statute We conclude that loans are candidate expenditures, unless may be more closely tailored to the end of providing and until they are repaid. Kentucky law defines the term disclosure. The federal statute at issue in Buckley established “contribution” to include any loan given to a committee. a two-tier disclosure system, in which campaigns were KRS § 121A.010(11)(a)1. Under Buckley, a contribution required to record the names and addresses of those who made by the candidate on his own behalf is an expenditure. contributed more than $10, and were required to report to the See, e.g., Gable, 142 F.3d at 951 (treating the limitation on FEC contributions exceeding $100 in a calendar year. internal contributions during the 28-day window as a Buckley, 424 U.S. at 82.4 By relying on reporting for even limitation on candidate expenditures). As a matter of campaign finance law, therefore, limitations on candidate loans are limitations on campaign expenditures, and 3 limitations on campaign expenditures are prohibited by W hile a reporting re quirement would also chill association, a requirement that the contributor provide only a name or address would Buckley. presumptively be less chilling as applied to associational freedo ms.

4 In upholding the disclosure requirements, the Buckley Court relied upon the fact that there was not public disclosure of contributions between $10 and $10 0 to avoid reaching the q uestion of whether mandatory p ublic disclosure of so small an am ount would "trespass[ ] impermissibly on First Amendment rights." Id. at 84. No. 02-5529 Anderson, et al. v. Spear, et al. 37 38 Anderson, et al. v. Spear, et al. No. 02-5529

The district court rejected the view that loans to campaigns Wilkinson’s second compelling interest–removing the should be treated as expenditures. First, the district court appearance that heavily indebted candidates are easy cited to the concern that repayment after the election creates bedfellows for quid pro quo corruption–is once again unique risks of quid pro quo corruption. As we have already addressed by the contribution limits. If a $1000 contribution found, however, the risk of quid pro quo is substantially has been found by the Kentucky legislature to be sufficiently mitigated by individual contribution limits. See low to avoid the appearance or fact of corruption, then a supra, section VI. Furthermore, the risk of quid pro quo is $1000 contribution to a campaign that is indebted to the virtually non-existent where the contribution is made to a candidate should also be found to be non-corrupting. While losing candidate who seeks to recoup some of his debt. the candidate may have a greater vested interest in assuring Finally, if the risks of after-election repayment are substantial that an unsecured loan from his personal coffers gets repaid, enough to justify regulation, the court must determine the application of Kentucky’s contribution limits means that whether these particular regulations, that is, the loan no individual donor can give enough to be considered limitation and the flat prohibition on post-election corrupting or “apparently” corrupting. contributions combined, are closely drawn to address the risk of corruption. Finally, restrictions on loans are particularly onerous because they limit when a party can speak (or how much he The district court then adopted the reasoning of Wilkinson can say at a given time). The exigencies of a campaign may v. Jones, 876 F. Supp. 916 (W.D. Ky. 1995), which require that a candidate spend more early to raise name previously upheld the $50,000 loan ban. The Wilkinson Court recognition, or to address an issue of public concern prior to found two distinct compelling interests: combating the contributions arriving. Indeed, a candidate may need to speak appearance that a “contributor is lining the candidate’s early in order to establish her position and garner pockets” by contributing after the election, and removing “the contributions. The $50,000 ceiling on loans, while not appearance that heavily indebted candidates are easy insubstantial, does significantly impinge upon a candidate’s bedfellows for quid pro quo contributors.” Wilkinson, 876 F. ability to deliver and to time his or her message. We must Supp. at 930-31. therefore reverse the district court’s judgment concerning the constitutionality of campaign loan limits. Wilkinson’s first compelling interest–combating the appearance of a contributor’s lining a candidate’s pocket–is IX. simply a variation on the post-election contribution issue raised above. We note that while a state does have the ability WHETHER KENTUCKY’S PROHIBITION OF CONTRIBUTIONS to regulate in order to combat the appearance of corruption, DURING THE FINAL 28 DAYS BEFORE THE REGULAR that appearance must be reasonable. To hold otherwise would ELECTIO N (KRS § § 121.150(24) & 121A.030(5)) IS be to give unreasonable perceptions of corruption the CONSTITUTIONAL AS APPLIED equivalent of a heckler’s veto. The perception that contributions to campaigns, which in turn repay loans to Pursuant to KRS §§ 121.150(24) & 121A.030(5), a candidates, in some way “line the pockets” of candidates is candidate is prohibited from receiving contributions in the simply not reasonable, and should not be used as a basis for final 28 days preceding an election, whether the candidate is regulation. participating in the public finance scheme or not. Mr. No. 02-5529 Anderson, et al. v. Spear, et al. 39 40 Anderson, et al. v. Spear, et al. No. 02-5529

Anderson challenges the applicability of this provision to cannot advance the State’s purpose in inducing participation write-in candidates. in the public funding program. The district court found this attempt to distinguish the holding in Gable to be a The district court and Appellees assert that this issue is “distinction without a difference.” But the district court controlled by Gable v. Patton, 142 F.3d 940 (6th Cir. 1998). paints with too broad a brush. The Gable court found that the In Gable, this court examined whether non-participating 28-day window was permissible as applied to non- candidates could be subjected to the 28-day restriction. While participating candidates because it advanced Kentucky’s the Gable court struck down the restrictions on internal interest in combating corruption. Gable, 142 F.3d at 951. contributions (self-financing) during this time period, the The Gable court did not specifically address those candidates court nonetheless upheld the restriction on external who are non-participating because they are ineligible for contributions during the final 28 days, even as applied to funding under the act–that is, write-in candidates. While the candidates who do not participate in the public finance opinion itself may appear at first blush to be broad enough to scheme. Id. at 951. First, the court recognized that the 28- encompass both voluntary and involuntary non-participants, day requirement is an important part of Kentucky’s campaign Gable’s reasoning supports the application of the 28-day finance scheme. Id. at 950. The court relied upon window only to voluntary non-participants. Kentucky’s statements that the 28-day restriction is necessary in order to ensure that all contributions are made before the Under the ratio decidendi of Gable, the 28-day window final pre-election reporting date, so that “if a non-participating contributes to Kentucky’s scheme to combat corruption, but slate has exceeded the $1.8 million threshold, the Registry only insofar as it supports the trigger, which in turn channels can detect it in time to activate the Trigger.” Id. at 949-50. individuals into the corruption-reducing public finance Under the Kentucky campaign finance law, contributions to scheme. Under KRS § 121A, however, write-in candidates a participating candidate's campaign are capped at $600,000 are not eligible to participate in that scheme, and therefore (which, with matching public funds equals $1.8 million). The cannot be channeled into the public finance system. lifting of this contribution cap is "triggered" by a Therefore applying the 28-day window to write-in candidates non-participating candidate's receiving an excess of $1.8 simply cannot be intended to combat corruption by million in contributions. Id. at 947. Kentucky argued in channeling write-in candidates into the public finance Gable that the 28-day window is necessary for the effective scheme. operation of the trigger; the trigger provision is an incentive for candidates to participate in the public financing scheme; The only remaining question then is whether exempting and the purpose of the public financing scheme is to prevent write-in candidates from the 28-day requirement would actual and apparent corruption. Therefore, the State impair the incentives for other candidates to participate in the contended application of the 28-day window to public finance scheme, and thereby undermine the Kentucky non-participating candidates is justified by Kentucky's interest statutory framework designed to combat corruption. The in preventing corruption. This court agreed. Id. at 951. public finance program caps contributions to a candidate's campaign at $600,000, and provides matching funds for those Here, Anderson challenges the application of the 28-day dollars on a two-for-one basis. The contribution cap will be window to write-in candidates. He attempts to distinguish lifted at any time (until the final report date which is 28 days Gable because write-in candidates are ineligible to participate before the election) that the non-participating candidate in the funding scheme, and therefore the 28-day window collects more than $1.8 million. If the 28-day window were No. 02-5529 Anderson, et al. v. Spear, et al. 41 42 Anderson, et al. v. Spear, et al. No. 02-5529

not applicable to write-in candidates, a candidate eligible for X. public funding would have an incentive not to participate in the public finance program only if she had reason to believe WHETHER KENTUCKY’S PUBLIC FINANCE OPTION (KRS that a write-in candidate would fail to collect more than $1.8 121A) DOES NOT PROVIDE BENEFITS ON A DISCRIMINATORY million before the 28-day window closed, but would BASIS IN VIOLATION OF THE CONSTITUTION substantially outstrip her in contributions in the final 28 days. This is a highly unlikely scenario at best. To the extent that Under the provisions of KRS 121A, a write-in candidate is a write-in candidate could raise such last-minute money, those not entitled to matching funds. Anderson challenges this funds would most likely be internal contributions—that is, provision as a violation of the Equal Protection Clause. As contributions made by the candidate himself—and this court's the district court noted below, Equal Protection challenges to decision in Gable clarified that internal contributions are not public funding schemes are not unique, as demonstrated by subject to the 28-day window. Accordingly, we see no the fact that the Buckley Court entertained an Equal Protection reasonable likelihood that exempting write-in candidates challenge to access to the federal public finance system. would have a negative impact on candidate participation in the program. The 28-day window, as applied to write-in The language in Buckley concerning the inability of a minor candidates, therefore does not serve the government’s candidate to succeed in challenging a public funding scheme purported purpose in combating corruption. on Equal Protection grounds is sweeping, and suggests a low probability of success for such a claim. For example, the But the 28-day window does unnecessarily abridge Buckley Court found that “Congress’ interest in not funding associational freedom. As the Supreme Court has noted in hopeless candidacies with large sums of public money . . . McIntyre v. Ohio Election Com’n, the fact that speech occurs necessarily justifies the withholding of public assistance from during the heat of an election “only strengthens the protection candidates without significant public support.” Buckley, 424 afforded” under the First Amendment. McIntyre v. Ohio U.S. at 96. The Court then found that eligibility requirements Election Comm’n, 514 U.S. 334, 347 (1995). Because write- also served the public interest “against providing artificial in candidates are less likely to have substantial name incentives to ‘splintered parties and unrestrained recognition or large bases of support, restricting their ability factionalism.’” Id. (citation omitted). to receive contributions during the vital 28 days preceding an election constitutes a substantial burden on the associational The Buckley Court concluded that Equal Protection claims rights of both the candidate and her would-be supporters. The seeking access to public financing are at base claims of the district court therefore erred in holding that the application of “denial of the enhancement of opportunity to communicate the 28-day window to write-in candidates is constitutional. with the electorate that the formulae afford eligible candidates.” Id. at 95. However, because the Court found that ineligible candidates are not subject to expenditure limitations applied to those in the public finance system, the Court found that those denied access were not “unfairly or unnecessarily burdened.” Id. at 95-96. In applying Buckley to Kentucky’s categorical exclusion of write-in candidates from public-funding eligibility, the district No. 02-5529 Anderson, et al. v. Spear, et al. 43 44 Anderson, et al. v. Spear, et al. No. 02-5529

court was “not unmindful that the instant action presents a XI. significant twist on the Buckley equal protection analysis, a distinction that may, indeed, be said to inch the WHETHER KENTUCKY’S TRIGGER PROVISIONS ARE Commonwealth’s scheme in the direction of invidious CONSTITUTIONAL AS APPLIED discrimination.” Specifically, because of the operation of the “trigger” (which releases participants from spending caps As previously described, Kentucky’s trigger provision lifts once non-participating candidates have raised $1.8 million), the contribution cap for candidates participating in the public participants in the public financing scheme are not necessarily finance system, and eliminates the 28-day window restricting burdened by an expenditure cap any more than are those contributions for all candidates. KRS § 121A.030(5)(a). candidates who are ineligible to participate in the program. Accordingly, Buckley’s rationale that ineligible candidates are Anderson challenges the trigger as excessively coercive. not unfairly burdened because they are not subject to the The Gable Court found that the trigger is not excessively additional expenditure restrictions concomitant with the coercive, and this panel is bound by that decision. See Gable, public finance program is inapplicable. The district court 142 F.3d at 949. Anderson also challenges the trigger as nonetheless and without discussion found that the difference applied, suggesting that it is particularly onerous to write-in was not significant enough to require a different result from candidates who are not permitted to participate in the public that which occurred in Buckley, and therefore upheld the finance system. Because this argument is essentially a program. recasting of the Equal Protection claim made in question X, it must fail for the same reason. We therefore affirm the While this is a close question given that under Kentucky’s judgment of the district court upholding the constitutionality scheme, write-in candidates are given all the burdens and of the trigger provision as applied. participating candidates all the benefits, we conclude that the district court did not err in finding that the program can XII. survive on Equal Protection grounds post-Buckley. Specifically, Kentucky’s interest in maintaining and For the foregoing reasons, the decision of the district court managing scarce resources and, as Buckley put it, in “not is REVERSED as to those claims addressed by this court in funding hopeless candidacies with . . . public money,” is a sections III-IX, and AFFIRMED as to those claims addressed significant government interest that justifies access in sections X-XI. The case is remanded for further requirements for the fund. See Buckley, 424 U.S. at 96. proceedings consistent with this order. Accordingly, while Buckley is certainly distinguishable insofar as the program here does not balance the burdens among participants and non-participants, the government interest in maintaining scarce resources allows it to treat differently situated candidates differently without running afoul of the Fourteenth Amendment’s Equal Protection clause. We therefore affirm the decision of the district court on this question.