Boone Cnty. Republican Party v. H. David Wallace

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0163p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BOONE COUNTY REPUBLICAN PARTY EXECUTIVE

│

COMMITTEE, HARDIN COUNTY REPUBLICAN PARTY

│

EXECUTIVE COMMITTEE, and JESSAMINE COUNTY

│

REPUBLICAN PARTY EXECUTIVE COMMITTEE,

│

Plaintiffs-Appellants, > No. 24-5783

│

│

v. │

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H. DAVID WALLACE, LAURA M. BENNETT, JESSICA │

BURKE, RICHARD CLAYTON LARKIN, ADRIAN M. │

MENDIONDO, THOMAS PATRICK O’BRIEN, III, J. │

BISSELL ROBERTS, and JOHN ROBERT STEFFEN, in their │

official capacities as board members of the Kentucky │

Registry of Election Finance, │

Defendants-Appellees. ┘

On Petition for Rehearing En Banc

United States District Court for the Eastern District of Kentucky at Frankfort.

No. 3:24-cv-00049—Gregory F. Van Tatenhove, District Judge.

Decided and Filed: June 20, 2025

Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Christopher Wiest, Theodore J. Roberts,

CHRIS WIEST, ATTY AT LAW, PLLC, Covington, Kentucky, Thomas B. Bruns, BRUNS

CONNELL VOLLMAR & ARMSTRONG LLC, Cincinnati, Ohio, for Appellants.

ON RESPONSE: Leslie M. Saunders, KENTUCKY REGISTRY OF ELECTION FINANCE,

Frankfort, Kentucky, for Appellees. ON AMICI BRIEFS: Brett R. Nolan, INSTITUTE FOR

FREE SPEECH, Washington, D.C., Josiah Contarino, DHILLON LAW GROUP, INC.,

Alexandria, Virginia, Matthew F. Kuhn, John H. Heyburn, Elizabeth Hedges, OFFICE OF THE

KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amici Curiae.

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 2

The court delivered an ORDER denying the petition for rehearing en banc. MOORE (pp.

3–4), READLER (pp. 5–9), and MURPHY (pp. 10–11), JJ., delivered separate opinions

concurring in the denial of the petition for rehearing en banc. SUTTON, C.J., concurred in the

separate opinion of MURPHY, J. NALBANDIAN, J. (pp. 12–15), delivered a separate opinion

dissenting from the denial of rehearing en banc, in which GRIFFIN and BUSH, JJ., concurred.

_________________

ORDER

_________________

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision. Judge Griffin would grant the petition for the reasons

stated in his dissent to the court’s opinion of March 18, 2025.

The petition was then circulated to the full court. Less than a majority of the judges voted

in favor of rehearing en banc.

Therefore, the petition is denied.

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 3

_________________

CONCURRENCE

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KAREN NELSON MOORE, Circuit Judge, concurring in the denial of rehearing en

banc. “The nature of judicial review constrains us to consider the case that is actually before us.”

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 547 (1991) (Blackmun, J., concurring in

the judgment). In this case, the executive committees of three Kentucky political parties alleged

that they had raised money for the specific purpose of funding campaign literature advocating for

their preferred candidates and for a constitutional amendment on the November 2024 ballot. See

R. 1 (Compl. ¶¶ 16, 20–24) (Page ID #6–7) (noting that each executive committee raised

approximately $10,000 or $20,000 “for the purpose of running Joint Expenditures”). The

Kentucky Registry of Election Finance told the executive committees that they could spend the

money they raised to advocate on ballot issues. See R. 25 (PI Hr’g Tr. at 7) (Page ID #239). The

executive committees just needed to register as a political issues committee and comply with the

corresponding disclosure requirements, like anyone who seeks to support a ballot issue election

in Kentucky. See id.; R. 1-4 (Email Exchange at 3) (Page ID #26). The political issues

committees could share the executive committee’s name and board membership. See R. 25 (PI

Hr’g Tr. at 39–40) (Page ID #271–72). And they could fund flyers advertising issues and

candidates jointly with the executive committee. Id. at 16 (Page ID #248). In short, the

executive committees could do exactly what they wanted to do, as long as they complied with

state registration and disclosure requirements. See Boone Cnty. Republican Party Exec. Comm.

v. Wallace, 132 F.4th 406, 412–13, 424–25 (6th Cir. 2025) (“Boone County”).

The dissent from the denial of en banc rehearing rewrites the factual record. In its telling,

the Registry banned the executive committees from spending their general treasury funds to

support the ballot issue and thereby unconstitutionally banned their speech. Yet, the executive

committees never alleged an intention to spend their general treasury funds on ballot issues. So,

not only did the panel not reach that question, but also the record does not support the view that

the executive committees hold (much less planned to expend) discretionary funds. Indeed, the

very limited evidence in the record suggests that, outside of this election, Kentucky’s executive

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 4

committees usually collect funds for the purpose of supporting candidates, not issues. See R. 1-4

(Email Exchange at 3) (Page ID #26) (noting that the Registry identified “12,000 line items of

expenditures, back to 2022 . . . [and] found only seven that reflect party spending on issues”); see

also Boone County, 132 F.4th at 412 (recognizing that the stated purpose of two of the executive

committees is “support[ing] or oppos[ing] KY candidates” (alteration in original)). The

Constitution does not “require[] the Registry to allow the executive committees to spend money

supporting a proposed state constitutional amendment when that money was collected to support

party nominees.” Id. at 423.

The case was presented in an emergency posture on a limited factual record. Discovery

may elucidate the character of the executive committees, the purpose for which they raise funds,

the relationship between spending on ballot issues and on candidates, and the burdens imposed

by registering a political issues committee. All these considerations could affect the result at

final judgment. For now, “our task here is to decide the case before us.” Chavez-Meza v. United

States, 585 U.S. 109, 120 (2018). The en banc court correctly denies rehearing and allows this

case to proceed in the district court. I concur.

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 5

_________________

CONCURRENCE

_________________

READLER, Circuit Judge, concurring in the denial of rehearing en banc. I agree with

Judge Murphy that the questions presented in this case may warrant our en banc court’s attention

down the road. For today’s purposes, it bears noting that the panel heard this case “in an

emergency posture on a limited factual record.” Moore Concurring Op. at 4. What is more, all

agree that discovery “could affect the result at final judgment.” Id. It follows that the panel’s

opinion has little, if any, binding authority, alleviating the need for en banc review. It remains to

be seen whether future developments will make this case appropriate for the full court’s

consideration.

A. Political party executive committees play a crucial role in Kentucky’s political

system. Executive committees serve as nerve centers for political parties, running the parties’

day to day operations and raising and spending money to promote their candidates. 32 Ky.

Admin. Regs. 1:050 § 1(1). Given the central role executive committees play in electoral

politics, one would likely be surprised to learn that Kentucky law forbids them from speaking on

certain political issues. Yet that appears to be the case. In accordance with an advisory opinion

issued by the Kentucky Registry of Election Finance, the agency charged with enforcing state

campaign finance regulations, the Commonwealth bars an executive committee from spending

money to support or oppose state constitutional amendments or other ballot issues unless the

committee registers and speaks through organizations called political issues committees. Letter

from Leslie M. Saunders, Gen. Couns., Ky. Registry of Election Fin., to Bobbie Coleman and

Kim Garrison, Chairpersons, Hardin Cnty. Republican Party & Jessamine Cnty. Republican

Party at 2–3 (July 8, 2024), https://perma.cc/M328-D4NF. In other words, an executive

committee cannot on its own engage in basic political activity like circulating flyers advocating

for or against ballot issues before the voters.

Kentucky’s approach to political speech raises a series of legal questions. Start with the

understanding that the Commonwealth’s regulators appear to enforce an “outright ban” on

political speech by executive committees, despite their status as political groups. Citizens United

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v. FEC, 558 U.S. 310, 337 (2010). Doing so seems legally dubious, as regulations banning

political speech generally trigger strict scrutiny. Id. at 340 (evaluating the permissibility of a

federal law banning speech by corporations through the lens of strict scrutiny). That explains

why the panel here initially held that the Registry’s advisory opinion failed to pass constitutional

muster. Boone Cnty. Republican Party Exec. Comm. v. Wallace, 116 F.4th 586, 598–99 (6th Cir.

2024), vacated, 132 F.4th 406 (6th Cir. 2025).

True, an executive committee “can still speak” about state constitutional amendments by

forming a political issues committee. Citizens United, 558 U.S. at 337. But a political issues

committee is a “separate association” from an executive committee. Id. Each respective

committee is its own “political entity,” Tr. of Mot. Hr’g, R.25, PageID 239, 270, with its own set

of officers and its own bank account. Boone Cnty. Republican Party Exec. Comm., 132 F.4th at

410–12, 422; see also id. at 432 (Griffin, J., dissenting). And an executive committee, standing

alone, is “absolutely” prohibited from spending its own general funds as an executive committee

on a form of political speech. Austin v. Mich. Chamber of Com., 494 U.S. 652, 681 n.* (1990)

(Scalia, J., dissenting). That the committee may create a “different association of individuals that

can” speak on ballot issues does not “alter the categorical nature of the prohibition” on the

executive committee. McConnell v. FEC, 540 U.S. 93, 330 (2003) (Kennedy, J., concurring in

the judgment in part and dissenting in part) (citation omitted). After all, a political issues

committee’s speech on ballot issues is not speech by an executive committee. Simply put,

speaking through a surrogate is not the same as speaking yourself. Citizens United, 558 U.S. at

337.

With all of this in mind, I am skeptical that the advisory opinion is best understood as

setting forth a disclosure rule. See Boone Cnty. Republican Party Exec. Comm., 132 F.4th at

422. Kentucky law does not require the mere disclosure of information by established entities

(here, executive committees). It instead conditions those entities’ political speech on the

creation, registration, and maintenance of separate and distinct associations (here, political issues

committees). That kind of law does not neatly fit the disclosure mold. See e.g., NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958); Buckley v. Valeo, 424 U.S. 1, 61 (1976)

(per curiam); Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2379 (2021).

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 7

The out of circuit cases invoked by the panel prove the point. Take, for example,

National Organization for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011). The state law at

issue there required select organizations to register as political committees and report specified

information to the government. See, e.g., Me. Stat. tit. 21-A, § 1053 (2012) (repealed 2013). In

holding that this law did not prohibit speech under Citizens United, the First Circuit emphasized

that the law did “not condition political speech on the creation of a separate organization or

fund.” Nat’l Org. for Marriage, 649 F.3d at 56. Yet that is precisely what the Kentucky

advisory opinion achieves. It tells executive committees they can speak about ballot questions

only if they form new associations.

Had I been on the panel here, I would have rejected its unusually functionalist

understanding of Citizens United, as did Judge Griffin. Boone Cnty. Republican Party Exec.

Comm., 132 F.4th at 431 (Griffin, J., dissenting). But whether the panel decision raised an issue

of “exceptional importance” warranting en banc review, Fed. R. App. P. 40(b)(2)(D), was far

from certain, in numerous respects. As a starting point, it is unclear how potent the panel’s

alternative functional test is and whether, in practice, it becomes “a workaround to Citizens

United.” Nalbandian Dissenting Op. at 12. On that note, it may be that campaign finance

regulations requiring one entity to speak through another are consistent with free speech

principles if they are not “burdensome.” Citizens United, 558 U.S. at 337; Murphy Concurring

Op. at 10 (citation omitted). Reading precedent in this way leads us to ask: Is it “burdensome”

for executive committees to form political issues committees and speak about state constitutional

amendments or other ballot issues through them? That would be the case if executive

committees cannot engage in their preferred speech through political issues committees. See

Citizens United, 558 U.S. at 337. Equally so if political issues committees are “expensive to

administer and subject to extensive regulations.” Id.

All of this spotlights the relevant questions the parties should answer as the record

develops in this case. To name a few: Once executive committees form political issues

committees, can they support or oppose political issues with “funds in [their] general coffers,” or

must they instead “start from scratch in raising the funds”? Murphy Concurring Op. at 11. And

can executive committees engage in their preferred speech once they register political issues

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 8

committees? That is, can they circulate flyers supporting both political candidates and political

issues?

Eventually, these many issues may need the attention of our en banc court. That this case

comes to the full court today with an underdeveloped record, however, again deserves

emphasizing. Moore Concurring Op. at 4. At this point, it makes sense to return the case to the

district court for further development. Following discovery, the district court will pass judgment

on the issues just described, followed, I presume, by the panel. And as two members of the panel

have changed their view of the case once already, it very much remains to be seen whether the

regulation at issue, in the end, violates free speech principles, and whether that question will

merit an answer by the full court. Compare Boone Cnty. Republican Party Exec. Comm., 116

F.4th at 598 with Boone Cnty. Republican Party Exec. Comm., 132 F.4th at 442.

B. While not the focus of the litigants here, other potential serious First Amendment

concerns lurk in the background even if we could view Kentucky’s scheme as a mere disclosure

requirement, as did the panel. Boone Cnty. Republican Party Exec. Comm., 132 F.4th at

428. The crux of appellants’ speaker based discrimination claim was on the distinction between

regulating large associations of individuals (like executive committees) while allowing single or

two person entities to go unregulated. See Appellants’ Br. at 23–25. Appellants are correct that

speaker based distinctions can warrant heightened scrutiny. But that axiom is not automatic. See

Schickel v. Dilger, 925 F.3d 858, 876 (6th Cir. 2019). Instead, whether a law that favors “some

speakers over others” demands closer review depends on whether the distinction between

speakers reflects a content preference. Reed v. Town of Gilbert, 576 U.S. 155, 170 (2015)

(citation omitted). It is not obvious to me that Kentucky merely choosing to regulate larger

associations while ignoring more minor players evinces a content preference. After all, focusing

oversight on larger entities seems part and parcel with the content neutral goals of “transparency

and ensuring that the public is informed about who is supporting and opposing ballot initiatives.”

Boone Cnty. Republican Party Exec. Comm., 132 F.4th at 428.

But in the Bluegrass State, more seems to lurk beneath the surface as to who is subject to

its political issues committee regulations. The Commonwealth, it bears noting, is happy to

exempt from its regulations other large associations organized under a single corporate form,

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whether it be churches or media corporations. See Letter from Rosemary F. Center, Gen.

Couns., Ky. Registry of Election Fin., to Stewart E. Conner at 2 (Sept. 29, 2004),

https://perma.cc/QLV9-5LKW; Letter from Emily Dennis, Gen. Couns., Ky. Registry of Election

Fin., to Theresa Camoriano at 2 (Jan. 3, 2011), https://perma.cc/AMU5-XQU7. By all accounts,

in other words, Kentucky law seems premised less on the size of who it is regulating than it is on

the reason a particular entity is organized.

Rationalizing this regulatory scheme in not easy. Why look the other way when the

Louisville Courier Journal publishes an op-ed discussing a proposed constitutional amendment,

but look askance when the Boone County Republican Party wants to disclose its views on the

same topic? The upshot is that party executive committees seem to be disfavored organizations

under Kentucky law. And that disparity brings with it legal ramifications—including under the

exacting scrutiny test the panel applied here, which requires a state disclosure requirement to be

narrowly tailored to the interest it promotes. Ams. for Prosperity Found., 141 S. Ct. at 2385.

When it comes to First Amendment jurisprudence, we are “deeply skeptical” when a state creates

exemptions to its disclosure laws that are “wholly disconnected” from the content-neutral

informational interests supporting the law. Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S.

Ct. 2361, 2377–78 (2018); Citizens United v. Gessler, 773 F.3d 200, 217 (10th Cir. 2014); Ctr.

for Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 289–90 (4th Cir. 2013). That is so

because such exemptions “run the risk that ‘[a] State has left unburdened those speakers whose

messages are in accord with its own views.’” Nat’l Inst. of Fam. & Life Advocs., 138 S. Ct. at

2378 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 580 (2011)). The risks to free speech

are all the more pronounced here when one remembers that the entities being targeted are

political parties, critical voices in our national policy dialogue. See Nat’l Republican Senatorial

Comm. v. FEC, 117 F.4th 389, 444 (6th Cir. 2024) (en banc) (Readler, J., dissenting) (noting

unique role of political parties).

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 10

_________________

CONCURRENCE

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MURPHY, Circuit Judge, concurring in the denial of rehearing en banc. This case may

eventually raise an issue of exceptional importance warranting our full court’s attention. After

all, the First Amendment “has its fullest and most urgent application” for political speech in the

election context—whether that speech promotes candidates or issues on the ballot. Citizens

United v. FEC, 558 U.S. 310, 339 (2010) (citation omitted). And here, the Kentucky Registry of

Election Finance has told the executive committees of county political parties that they may not

spend money promoting or criticizing state constitutional amendments on the ballot unless they

do so through a separate “political issues committee.” See Boone Cnty. Republican Party Exec.

Comm. v. Wallace, 132 F.4th 406, 412–13 (6th Cir. 2025). If this requirement to form a political

issues committee substantially burdens a political party’s ability to endorse both candidates and

issues on the same mailer, the Registry’s actions would raise serious constitutional questions. As

Judge Griffin explained, political parties are at least entitled to the same First Amendment

protections as corporations. See id. at 434 (Griffin, J., dissenting). And the Supreme Court has

held that federal campaign laws violated the First Amendment when those laws required the

corporations to speak only through “burdensome” political action committees. Citizens United,

558 U.S. at 337.

In my view, though, two countervailing considerations cut against en banc review at this

time. For one thing, the executive committees in this case have already obtained the preliminary

relief that they sought: an injunction allowing them to distribute their preferred communications

ahead of the November 2024 election. See Boone Cnty., 132 F.4th at 414. But that election has

come and gone. Although this case may well not be moot, the committees do not identify any

upcoming election in which they would like to engage in similar speech. Cf. Fischer v. Thomas,

78 F.4th 864, 868 (6th Cir. 2023). So it is hard to see any continued need for preliminary relief

while they litigate this case to a final judgment in the district court. See Boone Cnty., 132 F.4th

at 430. And if another election arises during this litigation, the committees can always “renew

their request for preliminary relief then.” Fischer, 78 F.4th at 868.

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For another thing, the record created for this appeal is not ideal—understandably so,

since the appeal arose on an emergency basis. The briefing leaves me uncertain over the actual

burdens imposed on political expression by the requirement that executive committees register a

political issues committee to speak about state constitutional amendments on the ballot. The

panel opinion thought that the Registry’s requirement imposed mere disclosure obligations like

those that other courts have upheld. See Boone Cnty., 132 F.4th at 421–28. But I have a lot of

questions on this front. Consider a typical joint mailer like the one at issue in this case. May an

executive committee use funds in its general coffers to promote a constitutional amendment? Or

must it start from scratch in raising the funds for this speech? And what about joint fundraising

for both candidates and issues? Apart from fundraising, how would the Registry even earmark

how much of the expenses for this mailer must come from the executive committee and how

much must come from the political issues committee? Questions like these may matter in the

end. And if this case reaches us after discovery, the parties will have likely clarified the speech

burdens in practice. That fact could make for a more informed decision on the key issue: Do the

political issues committees in Kentucky resemble the types of political action committees that

Citizens United found overly burdensome? 558 U.S. at 337. Or do they resemble the types of

disclosure regimes that other courts have upheld? Boone Cnty., 132 F.4th at 422 (citing cases).

On this understanding, I concur in the order denying rehearing en banc.

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 12

_________________

DISSENT

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NALBANDIAN, Circuit Judge, dissenting from the denial of rehearing en banc. In

Citizens United v. FEC, the Supreme Court held that the government can’t ban organizations

“from using their general treasury funds” for political speech. 558 U.S. 310, 318–19, 365–66

(2010). But the panel’s opinion in this case permits Kentucky to do just that, greenlighting a

workaround to Citizens United. Under the panel’s approach, a state can ban political parties

from using general funds for political speech so long as the state frames its rules as “disclosure

rules,” not spending rules.

“[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with

substance, not shadows . . . .” Students for Fair Admissions, Inc. v. President & Fellows of

Harvard Coll., 600 U.S. 181, 230 (2023) (alteration in original) (quoting Cummings v. Missouri,

71 U.S. (4 Wall.) 277, 325 (1867)). Because the panel opinion gives other states a potential

roadmap to evade Citizens United, I would’ve granted en banc review.

* * *

Under Kentucky law, political parties generally operate through “executive committees,”

which run the party bank accounts and authorize general spending. But to speak out and spend

money on a proposed state constitutional amendment, a party must create and register a separate

“political issues committee.” See Boone Cnty. Republican Party Exec. Comm. v. Wallace, 132

F.4th 406, 410–12 (6th Cir. 2025) (describing the regulatory regime).

This new, separate committee must have a new, separate bank account that can only

spend new, separate money raised for the purpose of supporting a specific political issue. In

other words, a political party cannot spend money that it’s already raised—its general treasury

funds—on issue advocacy. So when a political party raises funds or receives general donations,

it can spend that money on some political speech (i.e., candidates), but not other political speech

(i.e., ballot initiatives).

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 13

That’s a ban on using resources for a particular form of political speech. Just look at the

Boone County Republican Party. In early 2024, the Party had $50,000 in general funds. Then, a

proposed state constitutional amendment to authorize school choice was added to the 2024

ballot. See App. Dkt. 44, Amicus Br. of Institute for Free Speech 7–8. But the State said that the

Party couldn’t use any of its money to support the school choice amendment, because the money

hadn’t been raised by its (nonexistent) political issues committee for the specific purpose of

supporting the amendment (which hadn’t previously been on the ballot). To support the school

choice initiative, the Party would have to create a new committee, raise new money, ask its

donors to give again, and have the new money earmarked only for the amendment.

Citizens United should have governed here. By putting a political party’s general funds

off limits for core political speech, Kentucky’s regime violates the First Amendment. 558 U.S.

at 318–19, 365–66; see also FEC v. Cruz, 596 U.S. 289, 302–03 (2022) (“[R]estricting the

sources of funds” that an organization can use for political speech “burden[s] core political

speech”). I share the panel dissent’s view that Kentucky is “suppress[ing] pure political speech.”

Boone Cnty., 132 F.4th at 431 (Griffin, J., dissenting).

The panel majority found otherwise. It reasoned that Kentucky’s requirements are more

of a “disclosure regime” than a ban on speech, and thus subject to less demanding scrutiny. Id.

at 421–28 (majority opinion). All a party has to do is set up a separate committee, and then it

can speak (and spend money) on political issues (not candidates). But what about the new

committee’s funding? Well, the majority explained, nothing prevents the party “from

contributing to a political issues committee [the] funds” that the party “collected for the purpose

of supporting or opposing [a political] issue.” Id. at 423.

Therein lies the rub. Only funds collected “for the purpose of supporting or opposing

[an] issue” can be spent on a political issue. The majority doesn’t come out and say it directly,

but other funds—i.e., general funds, preexisting funds, funds not earmarked for any purpose,

funds given to the party to be spent as the party sees fit, most funds—cannot be spent on issue

advocacy.

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 14

To say that such a rule is only about “disclosure” and doesn’t ban speech “ignores

reality.” Id. at 436 (Griffin, J., dissenting). That’s like saying you can only spend on groceries

the portion of your paycheck specifically earmarked for groceries. Since employers don’t

earmark money in your paycheck for groceries, such a rule would effectively ban you from

buying groceries. That’s not really how paychecks work, and I’m skeptical that it’s really how

political donations work, either.

Importantly, I’m also skeptical that such a rule fits with Supreme Court caselaw. Indeed,

if we applied the panel’s decision to the facts of Citizens United itself, perhaps the government

could ban corporations from contributing their general treasury funds to a PAC, so long as the

PAC could raise money from other sources.

Fortunately, the case isn’t over. Preliminary injunctions generally don’t establish law of

the case, and parties may continue on to the merits, further developing the record and litigating to

final judgment. See Hall v. Edgewood Partners Ins. Ctr., 758 F. App’x 392, 397 n.3 (6th Cir.

2018); Wilcox v. United States, 888 F.2d 1111, 1114 (6th Cir. 1989) (per curiam); cf. Lackey v.

Stinnie, 145 S. Ct. 659, 667–68 (2025). Assuming they do so here, I expect the First

Amendment issues to be presented again. We should then “stand ready to ensure” that these

issues are given full review—including, if necessary, by the en banc court. Brown v. Yost, 122

F.4th 597, 603 (6th Cir. 2024) (en banc) (per curiam).

Still, I would’ve taken the case now, rather than wait for the next election or final

judgment. True, the 2024 cycle has passed. But that didn’t stop the panel from deciding the

merits on a preliminary-relief posture. So I doubt that posture should now insulate the panel’s

opinion from further scrutiny. We regularly take preliminary-relief cases en banc. See, e.g.,

Parents Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., 109 F.4th 453, 461 (6th

Cir.), reh’g en banc granted, 120 F.4th 536 (6th Cir. 2024) (mem.); Gun Owners of Am., Inc. v.

Garland, 19 F.4th 890, 898 (6th Cir. 2021) (en banc) (opinion in support of affirmance);

Preterm-Cleveland v. McCloud, 994 F.3d 512, 516 (6th Cir. 2021) (en banc); Connection

Distrib. Co. v. Holder, 557 F.3d 321, 327 (6th Cir. 2009) (en banc). And although an election

isn’t coming up in the next few months, a political party must raise money year round, from the

No. 24-5783 Boone Cnty. Republican Party v. Wallace Page 15

same limited donor pool, whether it’s an election year or not. The parties here should have

clarity on their spending and speech rights.

I respectfully dissent.

ENTERED BY ORDER OF THE COURT

___________________________________

Kelly L. Stephens, Clerk