Petition for Writ of Certiorari — Gable v. Patton

fs

98 897 Nov 251998

ee OFFICE OF THE CLERK

-

Fir eR

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

ROBERT E. GABLE, - - - - - Petitioner

versus

PAUL E. PATTON; A.B. CHANDLER, ITI;

KENTUCKY REGISTRY OF ELECTION FINANCE;

DONALD L. COX; MORRIS E. BURTON;

JAMES E. BOYD; and JOHN Y. BROWN, III,

- - - Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT ABELL KATHLEEN M. SULLIVAN

ACLU Cooperating Attorney 559 Nathan Abbot Way

P.O. Box 983 Stanford, California 94305-8610

Lexington, Kentucky 40588-0983 (650) 725-9875

(606) 254-7076 Counsel cf Record

DAVID A. FRIEDMAN

General! Counsel

American Civil Liberties Union

of Kentucky

425 W. Muhammad Ali Blvd.

Louisville, Kentucky 40202

(502) 581-1181 Counsel for Petitioner

November 25, 1998

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.©. BOX 3251, LOUISVILLE, KY.

er

i TE Se CT ee sci a NIMH GH Ruse teenie

i

QUESTIONS PRESENTED

1. Does a public campaign funding scheme uncon-

stitutionally penalize a nonparticipating candidate's rights

of free speech and association if, upon that candidate’s

collection or expenditure of a specified amount of private

campaign funds, the State releases participating candidates

from otherwise applicable contribution and expenditure lim-

its and matches their further fundraising efforts two-to-

one with public funds ?

2. Does a total ban on outside contributions to an

unsubsidized candidate’s campaign during the twenty-eight

days preceding an election violate that candidate’s rights

of free speech and association?

ii

PARTIES

The petitioner in this Court is Robert E. Gable, who

was the plaintiff-appellant/cross-appellee below. The re-

spondents in this Court, who were the defendants-appellees/

cross-appellants below, are Paul E. Patton, in his official

capacity as Governor of the Commonwealth of Kentucky;

A. B. Chandler, III, in his official capacity as Attorney

General of the Commonwealth of Kentucky; the Kentucky

Registry of Election Finance; Donald L. Cox, in his official

capacity as Chair of the Kentucky Registry of Election Fi-

nance; Morris E. Burton, in his official capacity as Franklin

County Commonwealth Attorney; James E. Boyd, in his

official capacity as Franklin County Attorney; and John Y.

Brown, III, in his official capacity as Secretary of State for

the Commonwealth of Kentucky.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED .....................:cccesceeeees

ETI sth cccediadgitisinainsastsincbnenmehivendudinenensinds

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED ...............ssscccssccsseeeees

REASONS FOR GRANTING THE WRIT ..........

a caehalcoipesen

l. Whether the “trigger” provision un-

constitutionally penalizes a nonpar-

ticipating candidate’s exercise of

the right to raise and spend political

funds is a question of serious na-

tional importance warranting this

RESET Se

2. Whether a ban on outside contribu-

tions during the final four weeks of

a political campaign conflicts with

Buckley is an important question

warranting this Court’s review. ........

Se IEEE ictiissdprctieibvardatekenahinnttenttieaieerbioste

iia linhics ilihiitat atlas inci hcnciniianicadipaicdcanisinainionuecs

B. Memorandum, Opinion and Order in Gable

v. Jones, Civil No. 95-12 (E.D. Ky.,

BE BI III iccscntscttotatercucesniaduassonionsiesss

C. Partial Declaratory Judgment in Gable v.

Jones, Civil No. 95-12 (E.D. Ky.

I ii icicech neh isdhidibiseiiovicukantabinne

oO dd m bd

iv

TABLE OF AUTHORITIES

Cases:

Anderson v. Celebrezze, 460 U.S. 780 (1983) .........

Buckley v. Valeo, 424 U.S. 1 (1976).............sceceeeeees

California Prolife Council Political Action

Committee v. Scully, 989 F. Supp. 1282 (E.D.

Ce, Ge coiteccccstctiteatcpiicdceeecbsaabaiateintbedaicsecsniss

Colorado Republican Federal Campaign Comm.

vay fm) 48s fy || Bene

Dunn v. Blumstein, 405 U.S. 330 (1972) ...............

FCC v. League of Women Voters, 468 U.S. 364

£2 | BURERTIRE ae CEN ier ran oe ice Bit Bt <r ar OO

Harman v. Forssenius, 380 U.S. 528 (1965)..........

Harris v. McRae, 448 U.S. 297 (1980) ...................

Maher v. Roe, 432 U.S. 464 (1977) ............ccceeseeeeee

Memorial Hospital v. Maricopa Co., 415 U.S.

Saeikstctectntbica ico tagnticidseccttidibalanntin

Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241

EE Lisertiactancl chia tcnichs adetiig Son insiahcaaddcass dees aaite ook

Mills v. Alabama, 384 U.S. 214 (1966) ..................

New York v. United States, 505 U.S. 144 (1992)...

O’Hare Truck Service, Inc. v. City of Northlake,

ERE Fee ee cichceniicidenibnriiniadilbthctinnevecce

Pacific Gas & Electric Co. v. Public Util.

Comnsen 00; SF UE. 1 CRG BD wn cvciicdcsinccnsesctcensccceseses

Regan v. Taxation With Representation, 461 U.S.

gna ees Bele 5 REE A A

Rosentiel v. Rodriguez, 101 F.3d 1544 (8th Cir.

BUY cic diccthitsioncnctinegbiniveah ecieiibieaiaiigtnatentenibaiiacciainieeednn

Rust v. Sullivan, 500 U.S. 173 (1991)....................

Speiser v. Randall, 357 U.S. 513 (1958) ................

United States v. National Treasury Employees

Union, 513 U.S. 454 (1906) ........ccccccccccscovcccevescees

VoteChoice, Inc. v. DiStefano, 4 F.3d 26 (1st Cir.

ID sseisi air ei seckeciagsiceciaciesdeiidimuaetben aie shah iads one tas

v

Statutes, Constitutional Provisions and

Ballot Measures:

RFs Ta IIIB scciccckstpecacndandcnctondcvenpssoisockureions passim

a 5

Be oe I eect ca cecdieas 5

Arizona Citizens Clean Elections Act, 1998

Ste FE FI oc asccctntdinccectnaciconecssesceceesdeces 7

i Sree Oe II sions serch ences eckencihiteicéncodeancewics 7

Colo. Rev. Stat. Ann. § 1-45-10 ............................ 7

a eI asin cars eecacecosonesinnebeokaaan 13

UN Oe WI ES igo oc siciccccsesadiscesaicudamentadincces 2,5

I ae 2-3,

5, 14

i 13

LE 4 RETR R Rca EE Bray ne bot Rerc ace mnie 5

8 BR a ERR etre MRM e ene EE, 4,5

GS 2. RR RRERIE TE Dire RASS weet me Rey oes 3-4

RR eR scotch dedi da sates linc siesta acts 4

Maine Clean Election Act, 21 Ann. Me. Rev.

BOE, BS iciesecidccassvipcaiibessciccindcasiiemccdecocas 6

Massachusetts Clean Election Law, 1998 Ballot

Measure 2, Mass. Gen. Laws, ch. 55A § 11........ 7

Pe Sie IEE Sirsa bnchcicdicicindweecsedsessiccanien 7

Minn. Stat. § 10A.25 sub 10(a)......................00eeeeee 7

BE Sa Se I a cetcsetensiaeenserasesctennssznts 7

Other Sources:

Cary Goldberg, 2 States Consider Boldly

Revamping Campaign Finance, N.Y. Times,

COE Re: Se Be IES bnikcecciiatinGeisansindcareinoneheses 7

No.

SUPREME COURT OF THE UNITED STATES

October Term, 1998

ROBERT E. GABLE, - - - - ~- Petitioner

versus

PAUL E. PATTON; A.B. CHANDLER, ITI;

KENTUCKY REGISTRY OF ELECTION FINANCE;

DONALD L. COX; MORRIS E. BURTON;

JAMES E. BOYD; and JOHN Y. BROWN, III,

=. 2 ee ee ee. . Siemendonte

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

27a), is reported as Gable v. Patton, 142 F.3d 940 (6t

Cir.1998). The unreported decision of the district court

(Pet. App. 28a-46a) is Gable v. Jones, Civil No. 95-12 (E.D.

Ky., Mar. 29, 1996).

JURISDICTION

The judgment of the court of appeals was entered

on April 30, 1998. Both sides’ petitions for rehearing were

denied on July 28, 1998. On October 22, 1998, the Honor-

able John Paul Stevens, Circuit Justice for the Sixth Cir-

cuit, granted petitioner's application for an extension of

time, through November 25, 1998, to file this petition for a

writ of certiorari. The jurisdiction of this Court to review

this petition for a writ of certiorari is invoked under 28

U.S.C. § 1254(1).

2

CONSTITUTIONAL PROVISIONS AND STATUTES

part:

INVOLVED

The United States Constitution, Amendment I, in

relevant part provides: “Congress shall make no law .. .

abridging the freedom of speech, or of the press... .”

Kentucky Revised Statute § 121A.030, entitled

“Campaign expenditure limitations,” provides in relevant

(1)

(5)

A qualifying slate of candidates for Governor

and Lieutenant Governor that receives trans-

fers from the [public campaign finance] fund

may make campaign expenditures which, in

the aggregate, including the expenditure of

transfers from the fund, shall not exceed one

million eight hundred thousand dollars

($1,800,000) in connection with a primary

election campaign and one million eight hun-

dred thousand dollars ($1,800,000) in con-

nection with a regular election campaign,

subject to the provisions of KRS 121A.080(4)

and (5), and three hundred thousand dollars

($300,000) in connection with a runoff pri-

mary campaign... .

No slate of candidates for Governor and Lieu-

tenant Governor shall knowingly accept any

other campaign contribution during the

twenty-eight (28) days immediately preced-

ing a primary or regular election and during

the fourteen (14) days immediately preced-

ing a runoff primary except:

(a) A qualifying slate of candidates that

has elected to become eligible for fund

transfers or who may in the future elect

to become eligible for fund transfers

shall be released from expenditure limi-

tations following a certification by the

registry pursuant to KRS 121A.080(4)

3

or (5) that a slate of candidates that

has not elected to become eligible for

fund transfers has received contribu-

tions or made expenditures in excess

of the expenditure limits provided in

subsection (1) of this section; ....

Kentucky Revised Statute § 121A.080, entitled

“Amounts transferred from fund,” provides in relevant part:

(1)

... . Qualifying slates of candidates may

receive transfers from the fund according to

the matching ratio . . . specified in KRS

121A.060(3\(c) . . . Subject to subsections (4)

and (5) of this section, a transfer entitlement

voucher may document total qualifying con-

tributions of not less than $300,000 but not

more than $600,000 for a primary or regular

election for receipt of total fund transfers

equal to twice the amount of qualifying con-

tributions documented... .

(4)(a) If the registry makes a finding of fact,

after a public hearing of which all

slates of candidates for Governor and

Lieutenant Governor shall be notified,

that in the course of a primary elec-

tion, runoff primary election, or regu-

lar election campaign a slate of can-

didates for Governor and Lieutenant

Governor that has not accepted the

provisions of this chapter has received

contributions or made expenditures in

excess of the expenditure limit as pro-

vided in KRS 121A.030(1), the regis-

try shall certify that those slates of

candidates that have elected to be-

come eligible for fund transfers. . .

shall be released from expenditure

limitations and may receive and sub-

(5)

(3)

4

mit for fund transfers qualifying con-

tributions in excess of $600,000.

Slates of candidates released from ex-

penditure limitations in a primary or

regular election shall continue to be

eligible to receive transfers from the

fund....

Nothing in this section shall prevent any

slate of candidates from notifying the regis-

try in writing that its campaign committee

has received contributions or made expendi-

tures in excess of the expenditure limitations

as provided in KRS 121A.030(1)....

Kentucky Revised Statute § 121A.060, entitled “Cer-

tification of qualification to receive transfer from fund,”

provides in relevant part:

The registry shall immediately review the

request of a slate of candidates for certifica-

tion to receive a transfer from the fund. The

request for certification shall include:. .. .

(c)

The financial reports filed by or on

behalf of the slate of candidates as of

the date of the request for certifica-

tion which indicate that the slate of

candidates has raised a threshold

qualifying amount in individual quali-

fying contributions for a transfer from

the fund at a two (2) for one (1) match-

ing ratio;....

STATEMENT OF THE CASE

This case involves a First Amendment challenge to

several provisions of Kentucky’s public funding scheme for

statewide elections. Under laws first implemented in its

1995 gubernatorial election, Kentucky provides two-for-one

public matching funds to any gubernatorial slate in a con-

tested election that agrees to limit private contributions to

5

$600,000 in each election, primary and general, and thus

to limit its total expenditures in each election to $1.8 mil-

lion — the sum of the $600,000 maximum in private funds

and $1.2 million in public matching funds. See Kentucky

Revised Statutes (“KRS”) §§ 121A.060(1), 121A.060(3\(c),

121A.030(1). The “28-day window” provision, KRS §

121A.030(5), bars both participating and nonparticipating

slates from accepting campaign contributions during the

twenty-eight days immediately preceding a primary or gen-

eral election campaign. But under KRS § 121A.030(5)(a),

the “trigger” provision, if an opposing slate that has de-

clined to participate in the public subsidy scheme exceeds

$1.8 million in private contributions or expenditures, a

publicly funded slate is released from the $1.8 million ex-

penditure limit and from the contribution ban, and is guar-

anteed from the public fisc two dollars for every one pri-

vate dollar it raises.

Petitioner Robert E. Gable (“Gable”) was a candi-

date for governor in Kentucky’s 1995 Republican primary,

and has expressed his interest in running for that office

again. Gable chose not to participate in the Kentucky

public funding scheme and not to receive public campaign

funds. In a complaint filed in the United States District

Court for the Eastern District of Kentucky during the 1995

primary campaign, he challenged as facially unconstitu-

tional several provisions of Kentucky campaign finance law.

Gable named as defendants various state and local offi-

cials and the agency responsible for enforcing the cam-

paign finance laws (collectively “the State”). The parties

resolved some issues, but ultimately presented five issues

to the district court on cross-motions for summary judg-

ment. On March 29, 1996, the district court, which had

jurisdiction under 28 U.S.C. §§ 1331 and 1343, entered a

final judgment granting summary judgment to Gable on

one issue and to the State on all others. Both sides ap-

pealed. The United States Court of Appeals for the Sixth

Circuit affirmed the district court’s judgment in its en-

tirety on April 30, 1998. Gable v. Patton, 142 F.3d 940

6

(6th Cir. 1998) (Pet. App. la-27a). The court of appeals

denied rehearing and rehearing en banc on July 28, 1998.

The court of appeals found that the “trigger” provi-

sion did not penalize a nonparticipating candidate’s right

to make political expenditures free of a government-im-

posed ceiling. The court conceded that benefits provided to

participating candidates can become unconstitutionally co-

ercive if they are sufficiently overwhelming. It conceded

too that “the Trigger is certainly more coercive than the

federal campaign finance scheme for presidential elections”

upheld by this Court in Buckley, Pet. App. 14a, and that

“participation will be the rational choice in the large ma-

jority of cases,” Pet. App. 15a. But it held nonetheless that

the trigger did not go “over the line of unconstitutional

coercion.” Pet. App. 15a.

The court of appeals likewise upheld the ban on

outside contributions during the last four weeks of an

election campaign, see Pet. App.17a-19a, although it in-

validated the ban as applied to candidates’ contributions

to their own campaigns, see Pet. App. 19a-24a. The court

conceded that forcing candidates to calculate and meet their

fundraising needs for the remainder of the campaign a full

month before an election “is not a trivial restriction,” but

nonetheless concluded that “such a restriction is justified

by Kentucky’s interest in combating corruption.” Pet. App.

18a-19a.

REASONS FOR GRANTING THE WRIT

Introduction

This case raises issues of serious national impor-

tance that were not resolved by this Court’s decision in

Buckley v. Valeo, 424 US. 1 (1976). Unable since Buckley

to enact political expenditure limits directly, a growing

number of states are adopting novel schemes designed to

inhibit political expenditures indirectly. Some, like Ken-

tucky, give participating candidates favorable public subsi-

dies when their nonparticipating opponents raise or spend

7

campaign funds above a set amount. See, e.g., The Maine

Clean Election Act, 21 A.M..R.S.°§ 1125 (9). Indeed, two

states just enacted such measures as ballot propositions in

the last election. See Arizona Citizens Clean Elections

Act, 1998 Ballot Proposition 200; Massachusetts Clean Elec-

tion Law, 1998 Ballot Measure 2, Mass. Gen. Laws, ch.

55A §11. Others simply release participating candidates

from otherwise applicable expenditure or contribution lim-

its once a nonparticipating candidate exceeds a state-ap-

proved level of fundraising or spending. See, e.g., Cal.

Gov. Code § 85404; Colo. Rev. Stat. Ann. § 1-45-105; Mich.

C.L.A. 169.269(8); Minn. Stat. § 10A.25 sub. 10 (a); R.I.

Gen. Laws § 17-25-24. Advocates of campaign finance re-

form are actively seeking to promote similar efforts in other

states. See Cary Goldberg, 2 States Consider Boldly Re-

vamping Campaign Finance, N.Y. Times, Oct. 19, 1998, at

p.Al.

Whether such measures unconstitutionally penal-

ize nonparticipating candidates’ rights to spend political

money free of government-imposed limits is an issue re-

quiring this Court’s urgent resolution. If this Court does

not clarify the application of Buckley to such measures,

one way or the other, they will be subject to multiple,

disruptive lawsuits over the next electoral cycle. Uncer-

tainty about the constitutionality of such measures will

disturb the orderly process of electoral decisionmaking and

might even cast into doubt the outcome of some future

elections. The writ should be granted so that such disrup-

tion may be avoided and the first issue presented in this

case resolved as soon as possible.

The writ should also be granted to resolve the sec-

ond issue in this case: whether Kentucky’s extraordinary

ban on campaign contributions during the last month of an

election conflicts with Buckley or other relevant precedents

of this Court.

8

l. Whether the “trigger” provision unconstitu-

tionally penalizes a nonparticipating

candidate’s exercise of the right to raise and

spend political funds is a question of serious

national importance warranting this Court’s

review.

Buckley v. Valeo, 424 U.S. 1 (1976), held that politi-

cal expenditures implicate fundamental liberties of speech

and association, and that government may not directly limit

expenditures of private funds. Jd. at 54. At the same

time, Buckley upheld the provision of public subsidies to

presidential campaigns on condition that participating can-

didates limit their campaign expenditures to a fixed

amount. Jd. at 56 n.75. But the presidential campaign

funding provisions upheld in Buckley placed no limits on

the amounts that nonparticipating candidates might raise

or spend, nor did they contain any bonuses for participat-

ing candidates that might be triggered by nonparticipating

candidates’ behavior.

Kentucky, in contrast, does not seek merely to lure

gubernatorial candidates with the carrot of public subsi-

dies, but also threatens nonparticipating candidates with

a substantial stick. If a nonparticipating candidate col-

lects or spends funds above the $1.8 million ceiling to which

participating candidates have agreed, the state will permit

participating candidates to raise and spend funds in un-

limited amounts, matching each private dollar raised with

two dollars of public money. This public bounty will flow

to the participating candidate no matter how much the

nonparticipating candidate’s fundraising prowess is due to

the popularity of his ideas, and no matter how much the

two-for-one matching ratio will distort the apparent popu-

larity of the participating candidate. A candidate who

seeks to walk away from the public campaign finance pro-

gram in order to preserve his right to make unlimited

campaign expenditures simply cannot do so. Rather, he is

told that if he is too successful at fundraising, the state

will respond by furnishing his opponent with twice as much

money as that opponent is capable of raising on his own.

Teh FN EET

9

Nonparticipating candidates can avoid this potentially over-

whelming response only by refraining from raising and

spending more than $1.8 million in the first place. The

trigger thus puts the nonparticipating candidate to a

Hobson's choice: either don’t amass or expend funds at

levels to which you are constitutionally entitled, or do so

on pain of Kentucky’s publicly-financed retaliation on your

opponent’s behalf. Such a choice is “no choice at all.” New

York v. United States, 505 U.S. 144, 176 (1992).

The issue whether such a penalty conflicts with

Buckley and other well-settled First Amendment law war-

rants this Court’s review. It is well-settled that protected

speech may not be made an automatic trigger for respon-

sive hostile speech. See, e.g., Miami Herald Pub. Co. v.

Tornillo, 418 U.S. 241, 257 (1974) (invalidating right-of-

reply statute as “exact[ing] a penalty” upon a newspaper's

controversial speech); Pacific Gas & Electric Co. v. Public

Util. Comm’n, 475 U.S. 1, 9 (1986) (invalidating a com-

pelled access requirement that “both penalizes the expres-

sion of particular points of view and forces speakers to

alter their speech to conform with an agenda they do not

set”). And it is well-settled since Buckley that political

expenditures are at the core of protected speech. See, e.g.,

Colorado Republican Federal Campaign Comm. v. FEC,

518 U.S. 604 (1996). Thus, it would seem apparent, con-

trary to the holding of the court below, that a candidate’s

success at raising a large number of perfectly legal private

political contributions likewise may not be made a trigger

for a massive state-financed counterattack.

The court of appeals erred in suggesting that this

penalty on private fundraising somehow dissipates because

it is part of a public subsidy scheme, which by definition

“must rely on incentives for participation.” Pet. App. 15a.

That suggestion misapprehends this Court’s precedents.

It is well-established that government need not subsidize

the exercise of constitutional rights and may use its power

of the purse to make some constitutional choices more at-

tractive than others. But government plainly may not

penalize the privately funded exercise of a constitutional

10

right or use selective subsidies to coerce a potential recipi-

ent into surrendering such a right.!

In order to avoid such impermissible penalty or co-

ercion, conditions on a government subsidy scheme must

leave a potential recipient who foregoes the subsidy no

worse off with respect to constitutionally protected choices

than he or she would have been had the funding program

not existed. See, e.g., Maher v. Roe, 432 U.S. 464, 474

(1977) (upholding selective subsidy of childbirth but not

abortion, reasoning that “[t]he State may have made child-

birth a more attractive alternative, thereby influencing the

woman’s decision, but it has imposed no restriction on ac-

cess to abortions that was not already there”); Harris v.

McRae, 448 U.S. 297, 317 (1980) (upholding similar fed-

eral law, reasoning that it “leaves an indigent woman with

at least the same range of choice in deciding whether to

obtain a medically necessary abortion as she would have

had if Congress had chosen to subsidize no health care

costs at all”). Public funding conditions that would not be

permissible if imposed directly — as Kentucky’s $1.8 mil-

lion political expenditure limit plainly would not be under

Buckley — are constitutional only if they leave potential

recipients the unfettered choice to avoid the condition by

foregoing the subsidy. See, e.g., Rust v. Sullivan, 500 U.S.

1 Compare, e.g., O'Hare Truck Service, Inc. v. City of Northlake,

518 U.S. 712 (1996) (impermissible penalty on speech and asso-

ciation of public contractor); United States v. National Treasury

Employees Union, 513 U.S. 454 (1995) (impermissible penalty on

government employees’ off-duty expressive activities); FCC v.

League of Women Voters, 468 U.S. 364 (1984) (impermissible

penalty on public broadcasters’ editorial expression); Speiser v.

Randall, 357 U.S. 513 (1958) (impermissible penalty on speech

and association of veteran tax beneficiary) with Rust v. Sullivan,

500 U.S. 173, (1991) (permissible nonsubsidy of abortion coun-

seling and advocacy); Regan v. Taxation With Representation,

461 U.S. 540 (1983) (permissible nonsubsidy of charitable orga-

nizations’ lobbying activity); Maher v. Roe, 4382 U.S. 464 (1977)

(permissible nonsubsidy of abortion).

11

173, 199 n.5 (1991) (upholding condition that federal fam-

ily planning funds not be used to counsel or advocate abor-

tion, reasoning that potential grant recipients “can choose

between accepting [the] funds — subject to the

Government's conditions. . . — or declining the subsidy

and financing their own unsubsidized program”).

In sharp conflict with this line of precedent, the

Kentucky trigger provision both fetters the constitution-

ally protected choices of candidates who forego public cam-

paign subsidies and leaves such candidates worse off than

they would have been without any public financing pro-

gram at all. Without the program, such a candidate may

raise and spend as many legal private contributions as he

or she wishes; with it, such fundraising success is threat-

ened or hammered with a state-financed counterattack

funded out of all proportion to the actual popularity of the

opponent's ideas. Such a penalty is no more permissible in

the public campaign funding context than in the context of

any other public subsidy. See Rosentiel v. Rodriguez, 101

F.3d 1544, 1560 (8th Cir. 1996) (Lay, J., dissenting) (not-

ing that the key issue in reviewing a public campaign sub-

sidy is “whether a candidate who faces a choice not to limit

her full access to political speech will be any worse off in

choosing to do so”).

The trigger warrants strict First Amendment scru-

tiny regardless of whether it serves as a deterrent to or

penalty on the exercise of the right established under

Buckley to raise and spend private political money without

a government-imposed ceiling. The trigger in most cases

will have the intended and predictable effect of discourag-

ing gubernatorial campaigns from spending above $1.8 mil-

lion, or of inducing candidates simply to accept the public

funds with strings attached. As the court of appeals accu-

rately observed, “there is only a narrow set of circumstances

under which a candidate could make a financially rational

decision not to participate. That situation is wherg the

nonparticipating candidate intends to exceed the $1.8 mil-

lion threshold and believes he will raise more than three

12

times the funds his participating opponents can raise.” Pet.

App. 14a. For this reason alone, the court below erred in

declining to find the trigger provision unconstitutionally

coercive. See, e.g., VoteChoice, Inc. v. DiStefano, 4 F.3d 26,

38 (1st Cir. 1993) (“There is a point at which [public fi-

nancing] incentives stray beyond the pale, creating dis-

parities so profound that they become impermissibly coer-

cive.”).

But contrary to the court of appeals’ suggestion, the

trigger’s constitutional infirmity would remain even if some

candidates chose, despite its draconian consequences, to

exercise their right to pursue private rather than public

campaign funding. Cf. Memorial Hospital v. Maricopa Co.,

415 U.S. 250, 258 (1974) (applying strict scrutiny to

durational residence scheme that “operates to penalize

those persons ... who have exercised their constitutional

right of interstate migration,” even if actual deterrence of

interstate migration was not shown) (citation omitted) (em-

phasis and ellipsis in original). In short, the flaw in the

Kentucky trigger provision is that it makes extra public

financing of participating campaigns contingent upon the

nonparticipating candidate’s exercise of constitutionally pro-

tected rights of speech and association in the first place.

Government may not use the exercise of First Amendment

rights as a predicate for systematic government-funded op-

position. Whether or not its target capitulates, his or her

rights have been seriously burdened.

Under the strict scrutiny that therefore should ap-

ply, the trigger provision cannot stand. It may not be

justified by a state interest “in equalizing the relative abil-

ity of individuals and groups to influence the outcome of

elections,” for this Court held in Buckley that such an in-

terest “is wholly foreign to the First Amendment.” 424

U.S. at 45. Such an interest, illegitimate in the regulatory

context, does not become permissible in the context of a

selective subsidy scheme — at least not one that effec-

tively restricts the speech of nonparticipating candidates

in order to enhance the speech of participating candidates.

i iit as i atime

mee RATS ab

13

To the contrary, Buckley upheld public financing of presi-

dential campaigns on the basis that it “facilitate[d] and

enlarge[d] public discussion and participation in the elec-

toral process” without abridging discussion or participa-

tion by any candidate declining public funds. Id. at 92-93.

Nor can the trigger be justified by an interest in reducing

the escalating cost of political campaigns, for this Court

held in Buckley that “the First Amendment denies govern-

ment the power to determine that spending to promote

one’s political views is wasteful, excessive, or unwise.” Id.

at 57.

Buckley did hold legitimate and substantial the gov-

ernment interest in combating the corrupting or appar-

ently corrupting influence of large contributions on politi-

cal candidates, but the trigger bears no relation, much less

a close relation, to such an interest. As this Court held in

Buckley, such an interest is fully served by “contributions

limitations and disclosure provisions,” and is insufficient

to justify further restrictions “on the quantity of political

expression.” Jd. at 55. Like the federal law at issue in

Buckley, Kentucky’s campaign statutes restrict the amounts

of contributions and require their disclosure. See KRS §§

121A.050, 121A.010(10). Thus, here, as in Buckley, the

trigger is superfluous to any anti-corruption goal. Indeed,

the trigger actually undermines any supposed goal of dis-

couraging candidate dependence upon private donors, as

its immediate effect is to send publicly financed candidates

back into the fray of private fundraising during the last

four weeks of a campaign.

It is no answer to suggest that Kentucky’s goal is

simply to encourage candidates to join the public subsidy

program. For whether this is a permissible goal depends

on why such participation is being encouraged. If the an-

swer to that question is equalization of relative speaking

power or reduction in campaign costs, then the goal is

foreclosed by Buckley. If the answer is reduction of candi-

date dependence on private donors, then that goal is fully

met by limitations on contribution amounts and full disclo-

14

sure rather than by a cap on aggregate levels of spending.

In any event, Kentucky has available an obviously less

restrictive alternative for encouraging participation in its

public funding scheme: it may simply raise or eliminate

spending limits on publicly funded candidates. This would

also be a different case if the trigger lifted spending limits

on participating candidates without awarding them addi-

tional public financial support.

For these reasons, this Court should grant review

of and hold invalid Kentucky’s trigger provision. While gov-

ernment is free to decline to finance a candidate who does

not accept government spending ceilings, it is not free un-

der the First Amendment to inundate that candidate with

government-financed opposition or to give his opponent pref-

erential fundraising opportunities the moment he raises or

spends a dollar over that amount.?

2 The court of appeals found that the trigger provision lifts the

28-day window “for all slates,” but this interpretation is incon-

sistent with the plain text of KRS § 121A.030(5)(a), which pro-

vides an exception to the pre-election contribution ban only for

“[a] qualifying slate of candidates that has elected to become

eligible for fund transfers.” If the trigger were read to permit

participating but not nonparticipating candidates to accept con-

tributions during the last four weeks of an election, then such

discrimination would furnish an independent issue warranting

this Court’s review. A number of states have sought to use

differential contribution limits to induce participation in “volun-

tary” expenditure limits, and there already exists a conflict among

the lower federal courts on whether such a practice is constitu-

tional. Compare VoteChoice, Inc. v. DiStefano, 4 F.3d 26 (1st

Cir. 1993) (upholding against First Amendment challenge a “cap

gap” that permitted participants in a state campaign finance

program to accept contributions higher in amount than nonpar-

ticipants could accept) with California Prolife Council Political

Action Committee v. Scully, 989 F. Supp. 1282 (E.D. Cal. 1998)

(invalidating similar variable contribution limits on the ground

that, if the higher limit for participating candidates suffices to

combat corruption, then “the lower limit is not closely drawn,”

id. at 1296).

Mere mn ~ Ney

, -

eae

15

2. Whether a ban on outside contributions dur-

ing the final four weeks of a political campaign

conflicts with Buckley is an important ques-

tion warranting this Court’s review.

Banning political speech in the weeks immediately

preceding an election is a little like banning cheering the

closer the team gets to the goal; it would seem to miss the

very point of the enterprise. Indeed, it would seem per-

verse from the standpoint of robust democratic discussion

and debate to limit political speech at the very moment —

the eve of an election — when the public is most likely to

be politically alert, energized, and engaged.

This Court has recognized as much in cases such as

Anderson v. Celebrezze, 460 U.S. 780 (1983), which invali-

dated an early filing deadline for independent candidates

as an excessive restriction on access to the ballot. Simi-

larly, in Dunn v. Blumstein, 405 U.S. 330 (1972), the Court

invalidated a durational residency requirement for voting,

noting that voters are likeliest to inform themselves about

an election during the period immediately preceding it:

“Given modern communication, and given the clear indica-

tion that campaign spending and voter education occur

largely during the month before an election, the State can-

not seriously maintain that it is ‘necessary’ to reside for a

year in the state and three months in the county in order

to be knowledgeable about congressional, state, or even

purely local elections.” Id. at 358. See also Harman v.

Forssenius, 380 U.S. 528, 539 (1965) (noting that one ob-

jection to poll taxes was that they “usually had to be paid

long before the election — at a time when political cam-

paigns were still quiescent,” penalizing those “voters who

did not plan so far ahead”); Mills v. Alabama, 384 U.S. 214

(1966) (invalidating a prohibition on newspaper publica-

tion of editorials on election day urging people to vote in a

particular way).

Nonetheless, Kentucky asserts that it must ban all

outside contributions to gubernatorial candidates in the

16

twenty-eight days immediately preceding the election in

order to tally whether a privately funded candidate has

exceeded the trigger amount, and if so, to give participat-

ing candidates enough time to deploy a state-financed re-

sponse. For this reason, the court of appeals found the

window an “important part” of Kentucky’s overall scheme

“to limit the actuality and appearance of corruption.” Pet.

App. 18a. This conclusion was in error, and poses a con-

flict with Buckley v. Valeo that warrants this Court’s re-

view.

There can be little doubt that the window would be

unconstitutional under Buckley if it were not ancillary to

the trigger. To be sure, as the court of appeals noted, “the

right of candidates to receive contributions” did not emerge

“unfettered from the Buckley decision.” Pet. App. 18a.

But the contribution limit upheld in Buckley was a limita-

tion on the amount, not the timing, of campaign contribu-

tions. The Court reasoned that a regulation forcing candi-

dates to seek out a greater number of small donors would

not necessarily limit the quantity of political speech, and

that even if it did so, it was justified by the reduction in

candidate dependence or apparent dependence on the po-

litical will of a few large donors. See 424 U.S. at 21-22, 26.

A restriction on the timing of contributions, in con-

trast, is both more restrictive of speech and association

rights and less relevant to preventing corruption. A ban

on contributions for the last month of an election does not

merely channel the same quantity of speech into a differ-

ent form, as this Court found in Buckley that contribution

amount limitations do. Rather, a ban on contributions in

the four weeks preceding an election limits the overall quan-

tity of a candidate’s speech, because it irrevocably fore-

closes him from obtaining contributions driven by late-

breaking events and rising voter consciousness — for

example, those contributions that would have been forth-

coming only in response to an opponent’s mounting nega-

tive attacks. Far from being a mere “time” restriction

warranting deferential review, the contribution ban

17

“impose[s] direct quantity restrictions on political commu-

nication and association” and so warrants strictest. scru-

tiny under Buckley. Id. at 18.

Even if the court of appeals were correct that a

temporary contribution ban is no more restrictive than limi-

tations on contribution amounts, some form of heightened

scrutiny would apply nonetheless under Buckley, and

Kentucky’s month-long contribution cannot be justified un-

der any standard of heightened review. The timing of a

contribution, unlike the amount, bears no necessary or even

probable relationship to the danger that the candidate will

later act with undue favoritism toward a donor. Indeed, a

candidate might well be more grateful to those who bank-

roll his campaign early than those who join in later. Ken-

tucky might well assert that the danger of dependence on

political contributions escalates in the desperate last days

of a campaign, but it has adduced no empirical support for

this proposition. In any event, such a theory is belied by

the fact that the trigger provision allows publicly funded

candidates to resume private contributions during that very

time period. If private donations that are already limited

in amount are not corrupting when the trigger is acti-

vated, it is difficult to see why they would be corrupting

when it is not.3

Thus, Kentucky can defend the window only as an

adjunct to the trigger, an argument that necessarily fails if

the trigger itself is unconstitutional, as argued above. Be-

cause the trigger’s penalty on nonparticipating candidates

cannot be justified on the equalization or cost-containment

grounds that Buckley foreclosed, and because that penalty

bears no close relation to avoiding candidate corruption,

the trigger must fall, and with it, the 28-day window.

3 If the trigger is read to permit only participating candidates

to resume contributions during the final four weeks, then this

discrimination against nonparticipating candidates furnishes in-

dependent grounds for this Court's review. See note 2 supra.

18

But even if the trigger were deemed constitutional,

the 28-day window is far too sweeping to be sustained.

The State has far less burdensome alternatives, such as

requiring nonparticipating candidates to report to the State

when they have exceeded the trigger amount so as to en-

able it to lift the restrictions on participating candidates.

Shutting down a nonparticipating candidate’s fundraising

for the final month of a campaign is wholly unnecessary to

ensure the State an opportunity to accord privileges to

participating candidates.

Resolving whether Kentucky’s 28-day window con-

flicts with Buckley is a matter of increasing importance as

other states consider parallel campaign finance reforms.

Accordingly, it warrants this Court’s review.

CONCLUSION

For these reasons, petitioner respectfully requests

that this Court grant the petition and issue a writ of cer-

tiorari to the court of appeals.

ROBERT ABELL KATHLEEN M. SULLIVAN

ACLU Cooperating Attorney 559 Nathan Abbot Way

P.O. Box 983 Stanford, California 94305-8610

Lexington, Kentucky 40588-0983 (650) 725-9875

(606) 254-7076 Counsel of Record

DAVID A. FRIEDMAN

General Counsel

American Civil Liberties Union

of Kentucky

425 W. Muhammad Ali Blvd.

Louisville, Kentucky 40202

(502) 581-1181

Counsel for Petitioner

November 25, 1998

la

APPENDIX A

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1998 FED App. 0131P (6th Cir.)

File Name: 98a0131p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 96-6451/6475

ROBERT E. GABLE, - Plaintiff-Appellant/Cross-Appellee,

U.

PAUL E. PATTON, in his official capacity as

Governor of the Commonwealth of Kentucky;

A. B. CHANDLER, III, in his official capacity

as Attorney General of the Commonwealth of

Kentucky; KENTUCKY REGISTRY OF

ELECTION FINANCE; DONALD L. COX,

in his official capacity as Chair of the Kentucky

Registry of Election Finance; MORRIS E.

BURTON, in his official capacity as Franklin

County Commonwealth Attorney; JAMES E.

BOYD, in his official capacity as Franklin

County Attorney; JOHN Y. BROWN, III, in

his official capacity as Secretary of State

for the Commonwealth of

Kentucky, - - Defendants-Appellees/Cross-Appellants.

Appeal from the United States District Court

for the Eastern District of Kentucky at Frankfort.

No. 95-00012—Joseph M. Hood, District Judge.

Argued: December 2, 1997

OPINION—Decided and Filed April 30, 1998

2a

Before: NORRIS, SUHRHEINRICH, and CUDAHY’, Cir-

cuit Judges.

COUNSEL

ARGUED: Robert L. Abell, Lexington, Kentucky, for Ap-

pellant. Sheryl G. Snyder, BROWN, TODD & HEYBURN,

Louisville, Kentucky, for Appellees. ON BRIEF: Robert

L. Abell, Lexington, Kentucky, Edward E. Dove, Lexing-

ton, Kentucky, for Appellant. Sheryl G. Snyder, Susan S.

Wettle, BROWN, TODD & HEYBURN, Louisville, Ken-

tucky, Virginia H. Snell, WYATT, TARRANT & COMBS,

Louisville, Kentucky, William B. Pettus, OFFICE OF THE

ATTORNEY GENERAL, CIVIL & ENVIRONMENTAL

LAW DIVISION, Frankfort, Kentucky, Jacquelyn P. Eckert,

Louisville, Kentucky, John E. Kuhn, Jr., OFFICE OF THE

U.S. ATTORNEY, Louisville, Kentucky, for Appellees. Den-

nis M. Flannery, WILMER, CUTLER & PICKERING,

Washington, D.C., Richard V. Beliles, Prospect, Kentucky,

for Amicus Curiae.

SUHRHEINRICH, J., delivered the opinion of the court,

in which NORRIS, J., joined. CUDAHY, J. (pp. 25-27),

delivered a separate opinion concurring in part and dis-

senting in part.

OPINION

SUHRHEINRICH, Circuit Judge. Plaintiff Robert E.

Gable, a candidate for governor in Kentucky’s 1995 Repub-

lican primary, brought suit challenging numerous provi-

sions of Kentucky’s campaign finance and election laws on

First Amendment grounds. Several of the provisions in-

volve Kentucky’s optional public funding scheme, in which

Plaintiff chose not to participate. Defendants include vari-

ous state and county officials, as well as the Kentucky

! The Honorable Richard D. Cudahy, Circuit Judge of the United

States Court of Appeals for the Seventh Circuit, sitting by desig-

nation.

3a

Registry of Election Finance (hereinafter Registry), the state

agency charged with enforcing campaign finance laws. The

district court granted summary judgment for Defendants,

except with regard to one aspect of one statutory provision,

for which summary judgment was granted for Plaintiff.

Plaintiffs appeal involves four of the provisions ruled on

by the court. Defendants’ cross-appeal challenges the one

issue that was decided in Plaintiffs favor. We AFFIRM

the district court’s decision in all respects.

I. Provisions Challenged On Appeal

This appeal and cross-appeal challenges the district

court’s decision with regard to four provisions of Kentucky’s

campaign finance and election laws. These four provisions

include:

(1) Ky. Rev. Stat. § 121.190(1) (hereinafter the Sponsor

Identification provision), which requires that all advertise-

ments advocating the election of a particular candidate

contain identification of the sponsor. This provision ex-

plicitly includes “posters,” “circulars,” and “handbills,” and

it this aspect of the provision which Plaintiff challenges.”

(2) Ky. Rev. Stat. § 118.127 (hereinafter the Slating

provision), which requires candidates for governor and lieu-

tenant governor to run in their party’s primary as part of a

2 The Sponsor Identification provision applies to “[a]ll newspaper

or magazine advertising, posters, circulars, billboards, handbills,

sample ballots, and paid-for television or radio announcements

which expressly advocate the election or defeat of a clearly iden-

tified candidate, slate of candidates, or group of candidates for

nomination or election to any public office.” Ky. Rev. Stat. §

121.190(1). The required identification consists of “the words

‘paid for by’ followed by the name and addre:s of the individual

or committee which paid for the commutnucation; except that if

paid for by a candidate, slate of candidates, or campaign com-

mittee, it shall be identified only by the words ‘paid for by’ fol-

lowed by the name.” Jd.

da

single slate, rather than running individually.®

(3) Ky. Rev. Stat. § 121A.030(5) (hereinafter the 28-

Day Window), which prohibits all gubernatorial candidate

slates, including those electing not to participate in public

funding (hereinafter non-participating slates), from accept-

ing contributions during the twenty-eight days preceding a

primary or general election.‘ This prohibition applies to

candidates’ contributions to their own campaigns, as well

as to contributions from outside sources. The 28-Day Win-

dow does not affect funds which are already in the slate’s

campaign account at the beginning of the 28-day period.

(4) Ky. Rev. Stat. § 121A.030(5)(a) (hereinafter the Trig-

ger), which affects the $1.8 million campaign spending limit.

Id. § 121A.030(1). The limit applies separately to the pri-

mary and general elections and affects only those slates

which elect to participate in public funding (hereinafter

participating slates). When a non-participating slate col-

lects more than $1.8 million in campaign funds in a pri-

mary or general election, including contributions from the

candidates themselves, the Trigger is activated.® The re-

sult is that the $1.8 million spending limit for participat-

ing slates is lifted, and the 28-Day Window is lifted for all

slates. Before the Trigger is activated, participating slates

may raise up to $600,000, id. § 121A.060(1), which, when

combined with two-for-one matching public funds, id.

§ 121A.060(3\(c), results in campaign funds of up to $1.8

million. After the Trigger is activated, a participating slate

3 Plaintiff's challenge to the Slating requirement cites Ky. Rev.

Stat. §§ 118.125 and 118.127 in tandem, but § 118.125 is only

tangentially related to the requirement.

‘ Prior to a 1996 amendment to the statute, the window was

thirty days long instead of twenty eight. A fourteen-day window

applies to primary runoff elections.

°In a primary runoff election, a $300,000 ceiling and triggering

threshold is substituted for the $1.8 million figures. Ky. Rev.

Stat.§ 121A.030(1).

5a

may raise an unlimited amount of money, all of which is

matched by the two-for-one public funding.®

The district court granted summary judgment with re-

spect to all four provisions above. It held the 28-Day Win-

dow to be unconstitutional with regard to non-participat-

ing candidates contributing to their own campaigns, and

that decision is contested in Defendants’ cross-appeal. In

all other respects, the four provisions were found to be

constitutional, forming the basis for Plaintiffs appeal. Be-

cause the four provisions are challenged with regard to

facial constitutionality, thus implicating only issues of law,

neither Plaintiff nor Defendants contest the appropriate-

ness of summary judgment. For the same reason, our

standard of review is de novo. See Kentucky Right To Life,

Inc. v. Terry, 108 F.3d 637, 644 (6th Cir.), cert denied, 118

S.Ct. 162 (1997). Under that standard, we AFFIRM the

district court’s decision with respect to each of the four

provisions challenged on appeal.

II. The Sponsor Identification Provision

The Sponsor Identification provision, Ky. Rev. Stat.

§ 121.190(1), requires that advertisements supporting a

particular candidate contain identification of the sponsor.

Defendants maintain that this provision provides an es-

sential means of detecting violations of various contribu-

tion and spending limits in Kentucky’s campaign finance

scheme. Plaintiff claims that the provision violates his

First Amendment right to free speech, inasmuch as it pro-

hibits anonymous handbills, posters, circulars, and the like.

® A participating slate is not eligible for matching funds until 1)

it has raised at least $300,000, Ky. Rev. Stat. § 121A.060(1), and

2) an opposing slate (whether participating or not) has raised at

least $300,000. Id. § 121A.060(13). The latter provision is in-

tended to prevent the use of public funds in uncontested elec-

tions.

6a

He argues that 1) these forms of communication involve

expenditures too modest to implicate a compelling state

interest, and 2) without a compelling state interest, the

burden on First Amendment freedoms imposed by the Spon-

sor Identification provision cannot survive constitutional

scrutiny. In particular, Plaintiff points to Kentucky’s re-

quirement that anyone making more than $500 in inde-

pendent expenditures on behalf of candidates in a single

election must report the expenditures to the Registry. Jd.

§§ 121.150(1), 121A.010(13). Plaintiff argues that this

threshold represents the state’s judgment that modest ex-

penditures of less than $500 are too small for the state to

assert a compelling interest in regulating them.

The district court initially enjoined enforcement of the

Sponsor Identification provision, but ultimately upheld it

as constitutional. The court found that although the provi-

sion infringes on First Amendment rights, it survives strict

scrutiny, because it is narrowly tailored to meet the state's

compelling interest in enforcing its campaign finance laws

and thereby combating corruption.

After the notices of appeal and cross-appeal had been

filed in this case, we upheld the Sponsor Identification

provision in Kentucky Right To Life, Inc. v. Terry, 108 F.3d

637 (6th Cir. 1997), cert denied, 118 S.Ct. 162 (1997). This

court’s reasoning in Kentucky Right To Life was similar to

that of the district court in the instant case. We conceded

that the Sponsor Identification provision “clearly implicates

First Amendment protection because it burdens core po-

litical speech [and thus] it must be narrowly tailored to

serve an overriding state interest.” Jd. at 648 (citation and

internal quotation marks omitted). However, we held that

the provision is constitutional because it is narrowly tai-

lored toward achieving two “substantial governmental in-

terests,” namely (1) it “prevents actual and perceived cor-

ruption by immediately notifying the public of any possible

allegiance a particular candidate may feel toward the pub-

lisher,” and (2) it “provides the Registry with a method of

detecting those expenditures which are not truly indepen-

2

Ta

dent.” Id.’

Plaintiff introduces an argument not raised in Ken-

tucky Right To Life, namely that sponsor identification can-

not be constitutionally required on handbills, posters,

circulars, and the like. While Kentucky Right To Life does

not foreclose an as-applied constitutional challenge by some-

one convicted of distributing a smal] number of anony-

mous circulars, Plaintiffs challenge to the constitutional-

ity of the Sponsor Identification provision is facial.

Plaintiffs introduction of a new legal argument does not

provide a basis for us to distinguish the instant case from

Kentucky Right To Life, which did not make any distinc-

tions regarding the type of advertisement or amount of

money expended. As Salmi v. Secretary of Health and

Human Services, 774 F.2d 685, 689 (6th Cir. 1985), ex-

plained, “[a] panel of this Court cannot overrule the deci-

sion of another panel. The prior decision remains control-

ling authority unless an inconsistent decision of the United

States Supreme Court requires modification of the deci-

sion or this Court sitting en banc overrules the prior deci-

sion.” Neither of these conditions have occurred. There-

fore, we affirm the district court’s holding that the Sponsor

Identification provision is constitutional.

III. The Slating Provision

The Slating provision, Ky. Rev. Stat. § 118.127, re-

quires candidates for governor and lieutenant governor to

run in their party's primary as part of a single slate. The

district court held the provision to be constitutional, reject-

ing Plaintiffs claim that it violates his First Amendment

right to freedom of association. Plaintiff argues that the

? Detection of expenditures which are not truly independent is

important, because money spent on a genuine “independent ex-

penditure,” see Ky. Rev. Stat. § 121A.010(13), is not counted as a

contribution under other provisions of Kentucky’s campaign fi-

nance laws, e.g., the 28-Day Window and the $1.8 million ceil-

ing.

8a

Slating provision dictates the terms of his association with

his chosen political party, both in his capacity as a mem-

ber and as a candidate in the party’s primary. In sum,

Plaintiff contends that the provision dictates to him and

his party “how they may perform one of their most integral

functions: selection of their general election candidates.”

A. Standing

As a preliminary matter, we must consider whether

Plaintiff has standing to challenge the Slating provision,

an issue not addressed by the district court. Defendants

contend that Plaintiff does not have standing, because he

does not have the perogative to decide how his party’s

candidates will be selected. The “associational rights that

he identifies are not his personally, but are those only of

the Republican Party,” Defendants argue. They add that,

even if this court were to confer jus tertii standing on Plain-

tiff, he could not assert the rights of an unincorporated

association like his party, because he did not plead the

claim as a class action.

Plaintiff argues that he has standing to make the free-

dom of association claim based on 1) his participation in

candidate selection as a party member, and 2) his candi-

dacy in the party’s primary. We conclude that Plaintiff's

argument is correct, at least with regard to his status as a

party member. The Supreme Court has repeatedly stated

that “[a]ny interference with the freedom of a party is

simultaneously an interference with the freedom of its ad-

herents.” Sweezy v. New Hampshire, 354 US 234, 250

(1957); accord Tashjian v. Republican Party of Conn., 479

U.S. 208, 215 (1986); Democratic Party of U.S. v. Wiscon-

sin ex rel. LaFollette, 450 U.S. 107, 122 (1981); see also

Julia E. Guttman, Primary Elections and the Collective

Right of Freedom of Association, 94 Yale L.J. 117, 117 n.3

(1984) (“In the past, when a political party has brought

suit, it has alleged an infringement of the rights of its

members. Thus, when a political party can sue, any party

member could also sue.”).

9a

B. Substantive Issues

Defendants argue that, even if Plaintiff does have stand-

ing to challenge the Slating provision, the challenge must

fail because 1) the provision merely regulates Plaintiff's

access to the ballot, without affecting his freedom of asso-

ciation, and 2) the provision is supported by a compelling

state interest in preventing “factionalism,” i.e., dissension

between the governor and lieutenant governor. The dis-

trict court used similar reasoning in upholding the Slating

provision. It found that “Gable may be as free in his politi-

cal association as he chooses,” because the provision does

not restrict Gable’s choice of a running mate for his slate.

The court conceded that the provision did burden Gable’s

right to access the ballot, but concluded that even that

burden was slight. Finally, the court found that “[iJt is

undisputed that Kentucky’s interest in preventing faction-

alism and in stabilizing government are recognized as com-

pelling.... [This interest was] born of years of attempting

to cope with factionalism in the gubernatorial race.”

The district court found that evaluation of the constitu-

tionality of the Slating provision was governed by the stan-

dard set forth in Anderson v. Celebrezze, 460 U.S. 780

(1983). We agree. Although Anderson struck down Ohio’s

early filing deadline for independent presidential candi-

dates, finding it to be an unconstitutional burden on the

voting and associational rights of the candidates’ support-

ers, the Court stated that:

{[A]s a practical matter, there must be a substantial

regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to

accompany the democratic processes. ... Each provi-

sion of these [regulations], whether it governs the reg-

istration and qualifications of voters, the selection and

eligibility of candidates, or the voting process itself,

inevitably affects — at least to some degree — the

individual's right to vote and his right to associate

with others for political ends. Nevertheless, the State’s

10a

important regulatory interests are generally sufficient

to justify reasonable, nondiscriminatory restrictions.

Id. at 788 (emphasis added) (citation and internal quota-

tion marks omitted). Like the district court, we find the

Slating provision to be just such a reasonable, nondiscrimi-

natory restriction. As a matter of fact, the burden this

provision places on Plaintiff appears relatively small com-

pared to the example in Anderson of a reasonable, nondis-

criminatory ballot access restriction. That example in-

volved a state “requir[ing] candidates to make a preliminary

showing of substantial support in order to qualify for a

place on the ballot.” Jd. at 788 n.9.

The modest burden placed on Plaintiffs “right to asso-

ciate with others for political ends” is clearly justified by

“the State’s important regulatory interests.” Id. at 788.

Storer v. Brown, 415 U.S. 724 (1974), noted that “the Found-

ing Fathers [believed] that splintered parties and unre-

strained factionalism may do significant damage to the

fabric of government,” id. at 736, leading the Court to con-

clude that “the State’s interest in the stability of its politi-

cal system [is] not only permissible, but compelling.” Jd.

While Plaintiff contends that Kentucky’s proffered interest

in ameliorating factionalism is “nothing more than a claim

of right to assure the ideological compatibility of a party’s

general election candidates,” this is not so much an argu-

ment as it is a pejorative rephrasing of what the Supreme

Court has held to be a compelling state interest. Because

the state’s compelling interest clearly outweighs the mod-

est burden on Plaintiffs constitutional rights, we affirm

the district court’s holding that the Slating provision is

constitutional.

IV. The Trigger Provision

The Trigger, Ky. Rev. Stat. § 121A.030(5)(a), is a mecha-

nism whereby, when a non-participating slate collects more

than $1.8 million in campaign funds in a primary or gen-

eral election, the $1.8 million ceiling is lifted for partici-

pating slates, and the 28-Day Window is lifted for all slates.

lla

Defendants maintain that the Trigger provision is designed

to encourage candidates to participate in Kentucky’s cam-

paign finance scheme, including its $1.8 million expendi-

ture limit. They argue that the Trigger must be a part of

that scheme “[iJn order to assuage the wholly legitimate

fears of participating slates” that they will be “vastly

outspent due to their agreement to accept spending lim-

its.” Defendants contend that the overall scheme serves a

compelling state interest in minimizing the role of

fundraising and “combat[{ing] corruption by ending the

money chase that has undermined the integrity of politi-

cians and the faith of the public in the political process.”

Plaintiff contends that the Trigger provision violates

his First Amendment right to free speech. The crux of his

claim is that the effect of the Trigger is to coerce him into

limiting his campaign spending to $1.8 million, thereby

forgoing protected speech. The alleged coercion flows from

the fact that, if he exceeds the $1.8 million threshold by

any amount, his campaign will potentially be “inundated”

by the spending of participating slates, which will not only

be released from their ceiling, but will continue to get un-

limited two-for-one matching public funds. Put another

way, Plaintiff asserts that there is a high “penalty” for his

1.8 millionth dollar of speech.

The district court held the Trigger provision to be con-

stitutional, rejecting what it called a “benefit equals bur-

den” argument predicated on the notion that benefits pro-

vided to participating slates by activation of the Trigger

represent a penalty on Plaintiffs speech. However, the

court conceded that “[t]here is no question but that the

trigger provision . . . restricts free political speech... .

[S]peech will be stifled to some degree by the fear that the

participating candidate will clearly ‘outspend’ the non-par-

ticipating candidate once the cap is lifted, given the addi-

tional ‘2 to 1’ funding.” However, the court upheld the

Trigger because “the state has a compelling interest in

keeping campaign expenditures at levels that do not en-

courage actual or apparent corruption of the political pro-

12a

cess, i.e., to keep one candidate from essentially buying a

campaign.”®

To the extent that the district court relied upon

Kentucky’s interest in preventing candidates from buying

victory, it erred in light of Buckley v. Valeo, 424 U.S. 1

(1976) (per curiam) (upholding and striking down various

portions of the Federal Election Campaign Act and related

provisions), the seminal campaign finance case which “pro-

vides the constitutional framework for analyzing First

Amendment challenges to campaign contribution regula-

tions.” Kentucky Right To Life, Inc. v. Terry, 108 F.3d 637,

647 (6th Cir.), cert denied, 118 S.Ct. 162 (1997). The

Buckley Court held that the “interest in equalizing the

relative financial resources of candidates. . . is clearly

not sufficient to justify . . . infringement of fundamental

First Amendment rights.” Buckley, 424 U.S. at 54. How-

ever, “[t]he Supreme Court has consistently held that pre-

venting perceived corruption is a compelling state inter-

est.” Kentucky Right To Life, 108 F.3d at 650-51. Hence,

the district court has identified a state interest which can

potentially justify the burden on Plaintiffs First Amend-

ment rights.

We turn now to analyzing the extent of the burden on

Plaintiffs First Amendment rights. In general, the public

funding of candidates in return ivr their acceptance of ex-

penditure limits is constitutional, Buckley, 424 U.S. at 57

n.65, despite the potential for pressuring candidates into

accepting the expenditure limits. However, as the district

’ Similar reasoning was used in Wilkinson v. Jones, 876 F.Supp.

916 (W.D. Ky. 1995), which also upheld Kentucky’s Trigger pro-

vision. That court stated that even if “the trigger provision

chills speech to some degree, we find that it is a narrowly tai-

lored means which addresses a compelling state interest .. . in

encouraging candidates to accept public financing and its accom-

panying limitations which are designed to promote greater po-

litical dialogue among the candidates and combat corruption.”

Id. at 928.

~ ee

13a

court succinctly stated, “although a statutorily created ben-

efit does not per se result in an unconstitutional burden,

such benefits could conceivably ‘snowball’ into a ‘coercive’

measure upon a non-participeting candidate.” See Vote

Choice, Inc. v. DiStefano, 4 F.3d 26, 38 (1st Cir. 1993)

(“[T]here is a point at which [public financing] incentives

stray beyond the pale, creating disparities so profound that

they become impermissibly coercive.”); Rosenstiel v.

Rodriguez, 101 F.3d 1544, 1550 (8th Cir. 1996) (“[T]he

State’s public financing package does not . . . create such a

large disparity between benefits and restrictions that can-

didates are coerced to publicly finance their campaigns.”);

Wilkinson v. Jones, 876 F.Supp. 916, 929 (W.D. Ky. 1995).

The district court gave an example of such coercion,

stating that if Kentucky provided four dollars in matching

funds, instead of the current two dollars, for every dollar

raised by participating candidates, a non-participating can-

didate would have no way of remaining competitive once

the $1.8 million ceiling was lifted. As a result, the court

said, “the candidate would have no real choice but to par-

ticipate in the scheme,” making it unconstitutional. The

doctrine that benefits provided to participating candidates

can become unconstitutionally coercive, if they are over-

whelming enough, follows logically from the holding in

Buckley that involuntary limits on a candidate’s campaign

expenditures are unconstitutional. See Buckley, 424 U.S.

at 58. This holding would be rendered meaningless if the

government could effectively force a candidate into accept-

ing expenditure limits by providing overwhelming benefits

to participating candidates.

Thus, the central question we are faced with is whether

the substantial advantage the Trigger provides to partici-

pating candidates rises to the level of unconstitutional co-

ercion. At the very least, the Trigger provision can be said

to provide very strong incentives for participation in

Kentucky’s campaign finance scheme. Because of the Trig-

ger, a non-participating candidate derives no relative ad-

vantage from the $1.8 million spending limit on his par-

l4a

ticipating opponents. Yet, because his participating oppo-

nents receive two-for-one public funding, resulting in three

dollars spent for every one dollar raised, there is a sub-

stantial cost for non-participation. Given the lack of bal-

ance between costs and advantages, there is only a narrow

set of circumstances under which a candidate could make

a financially rational decision not to participate. That situ-

ation is where the non-participating candidate intends to

exceed the $1.8 million threshold and believes he will raise

more than three times the funds his participating oppo-

nents can raise.

In this respect, the Trigger is certainly more coercive

than the federal campaign finance scheme for presidentia!

elections. Under that scheme, 26 U.S.C. §§ 9001-9042,

candidates who accept an expenditure ceiling in return for

public funding are not released from the ceiling regardless

of how much their non-participating opponents spend. The

federal scheme was upheld in Republican Nat’l Comm. v.

Federal Election Comm’n, 487 F.Supp. 280, 283-88 (S.D.

N.Y. 1980) (3-judge court), which was affirmed without

comment by the Supreme Court, 445 U.S. 955 (1980). How-

ever, the Court has not provided any guidance as to how

much farther a campaign finance scheme can go in provid-

ing incentives for participation before it crosses the line

and becomes unconstitutionally coercive.

The lower courts do not provide much guidance either,

as there is little case law that is truly on point. However,

the Eighth Circuit did uphold a provision of Minnesota’s

campaign finance law, which in some respects, goes fur-

ther than the Trigger in strongly discouraging non-partici-

pation. Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir.

1996). Like the Kentucky scheme, Minnesota’s law per-

mits publicly financed candidates to exceed an expenditure

ceiling when their non-participating opponents raise funds

in excess of a certain triggering amount. Jd. at 1547.

Minnesota's trigger provides a bigger advantage to partici-

pating candidates than does Kentucky’s, because the trig-

gering amount in Minnesota is less than the ceiling. Jd.

15a

However, in other respects, the Minnesota scheme does

not go as far as Kentucky’s, because the public funding

does not continue unabated after the ceiling is lifted. In-

stead, the amount of public funds a candidate may receive

is limited to fifty percent of the ceiling amount. Jd. at

1546.

Returning to Kentucky’s scheme, it is clear that candi-

dates are under financial pressure to participate, since par-

ticipation will be the rational choice in the large majority

of cases. However, a voluntary campaign finance scheme

must rely on incentives for participation, which, by defini-

tion, means structuring the scheme so that participation is

usually the rational choice. Were we to conclude that the

incentives provided by Kentucky are unconstitutional, we

would be making a distinction based on degree. In that

sense, Buckley does provide some guidance. In upholding

a one thousand dollar limit on campaign contributions by

individuals, the Court stated that if “some limit on contri-

butions is necessary, a court has no scalpel to probe,

whether, say, a $2,000 ceiling might not serve as well as

$1,000. Such distinctions in degree become significant only

when they can be said to amount to differences in kind.”

Buckley, 424 U.S. at 30 (citation and internal quotation

marks omitted). We believe the same principle applies

here. Absent a clearer form of coercion, we decline to find

that the incentives inherent in the Trigger provision are

different in kind from clearly constitutional incentives.

Faced with a difference only in degree, we will not second

guess the Kentucky legislature by applying a “scalpel” and

declaring that Kentucky’s scheme goes one step over the

line of unconstitutional coercion, especially where, as here,

the line is not a clear one. Therefore, we affirm the dis-

trict court and hold that Kentucky’s Trigger provision is

constitutional.

V. The 28-Day Window

The 28-Day Window, Ky. Rev. Stat. § 121A.030(5), pro-

hibits all gubernatorial candidate slates from accepting con-

tributions or contributing to their own campaigns during

16a

the twenty-eight days preceding a primary or general elec-

tion. However, any money already in the slate’s campaign

account can be spent during this period. While it is clear

that Kentucky can impose this prohibition on candidates

who voluntarily participate in the state’s public funding

scheme, see Buckley, 424 U.S. at 57 n.65 (“Congress may . .

. condition acceptance of public funds on an agreement by

the candidate to abide by specified expenditure limita-

tions.”), the constitutionality of the prohibition on non-par-

ticipating candidates is in question. Plaintiff, a non-par-

ticipating candidate, contends that the 28-Day Window

violates his First Amendment right to free speech, by lim-

iting his political expression during the last twenty-eight

days of a campaign. He argues that the Window violates

his right to free association as well, because it interferes

with his relationship with his contributors.

Defendants respond that the 28-Day Window is required

in order to effectuate the Trigger, Ky. Rev. Stat.

§ 121A.030(5\a), which, they claim, is an indispensable

part of Kentucky's entire public funding scheme. Defen-

dants maintain that the purpose of the 28-Day Window is

to ensure that all contributions (including those to a

candidate’s own campaign) are made before the final pre-

election reporting date, so that, if a non-participating slate

has exceeded the $1.8 million threshold, the Registry can

detect it in time to activate the Trigger. Moreover, Defen-

dants argue, the Trigger must be activated long enough

before the election to allow participating slates a meaning-

ful amount of time to solicit additional contributions.

The district court held the 28-Day Window to be consti-

tutional with regard to contributions from outside sources

(hereinafter external contributions), but held it to be un-

constitutional with respect to non-participating candidates

contributing to their own campaigns (hereinafter internal

expenditures). Plaintiff challenges the court’s decision on

external contributions, while Defendants challenge the de-

cision on internal expenditures. The key for analyzing

both issues is Buckley and its holdings on provisions of the

errr

17a

Federal Election Campaign Act of 1971, 86 Stat. 3, as

amended by 88 Stat. 1263 (1974) (hereinafter the Federal

Act). Two of those holdings are particularly important

here. One, the Buckley Court upheld the Federal Act’s

limits on the amount of money that an individual or group

could contribute to a candidate for federal office. Buckley,

424 U.S. at 23-36. Two, the Court struck down, as uncon-

stitutional, the Act’s limits on a candidate’s expenditure of

his own money. Jd. at 51-54. Subsection A below analyzes

the 28-Day Window with respect to external contributions,

while subsection B looks at internal expenditures.

A. External Contributions

Although the district court devoted three pages to dis-

cussing the constitutionality of the 28-Day Window with

respect to internal expenditures, it devoted only one sen-

tence to the issue of external contributions. Specifically,

the court said that “Buckley legitimatizes limiting contri-

butions from other sources during the reporting period.”

The district court is evidently referring to the holding in

Buckley that the Federal Act’s limits on the size of exter-

nal contributions is constitutional. While Buckley found

that these limits did burden free speech and free associa-

tion to some extent, 424 U.S. at 20-23, it also found that

the burdens were justified.’ The Buckley Court concluded

that “[i]t is umnecessary to look beyond the Act’s primary

purpose to limit the actuality and appearance of corrup-

tion resulting from large individual financial contributions

in order to find a constitutionally sufficient justification.”

Id. at 26.

° Buckley stated that the limits “impinge on protected associa-

tional freedoms [because] [m]Jaking a contribution, like joining a

political party, serves to affiliate a person with a candidate. In

addition, it enables like-minded persons to pool their resources

in furtherance of common political goals.” Buckley, 424 U.S. at

22. Although the Supreme Court was discussing the associa-

tional rights of contributors, the same argument can be made for

Plaintiffs right to affiliate and pool resources with contributors.

18a

We accept Defendants’ contention that the purpose of

Kentucky’s campaign finance scheme is also to limit the

actuality and appearance of corruption, and that the 28-

Day Window is an important part of that scheme. How-

ever, we disagree with the district court that Buckley is so

clearly controlling that no further analysis is necessary.

One reason for our disagreement is that Buckley addressed

the First Amendment rights of contributors, whereas the

instant case involves the right of a candidate to receive

contributions. Another reason is that Buckley relied on

“[tlhe major evil . . . [being] the danger of candidate

dependence on large contributions,” id. at 55 (emphasis

added), whereas the 28-Day Window makes no distinction

based on contribution size. Consider the following conclu-

sion by the Buckley Court:

[A] limitation upon the amount that any one person

or group may contribute to a candidate or political

committee entails only a marginal restriction upon

the contributor’s ability to engage in free communica-

tion. . . . The quantity of communication by the

contributor does not increase perceptibly with the size

of his contribution.

Id. at 20-21. That reasoning simply has no relevance in

the instant case.

Thus, the application of Buckley to the instant case is

far from straightforward. Nonetheless, we would be ignor-

ing the obvious if we maintained that the right of candi-

dates to receive contributions emerged unfettered from the

Buckley decision. The Buckley Court gave no indication

that its decision would have been different had the right of

candidates to receive contributions been asserted. To the

contrary, Buckley sanctioned the fact that the Federal Act

would force candidates to rearrange their fundraising by

seeking out many small donors, instead of a few large

ones. Id. at 21-22 (“The overall effect of the Act’s contribu-

tion ceilings is merely to require candidates and political

committees to raise funds from a greater number of per-

sons.”). The effect of the 28-Day Window with respect to

external contributions is similar. Candidates will be forced

19a

to rearrange their fundraising by concentrating it in the

period before the 28-Day Window begins. That is not a

trivial restriction, but we read Buckley to say that such a

restriction is justified by Kentucky’s interest in combating

corruption. We, therefore, affirm the district court’s hold-

ing that the 28-Day Window is constitutional with respect

to external contributions.

B. Internal Expenditures

In striking down the 28-Day Window with respect to

internal expenditures, the district court relied on Buckley

to conclude that “[t]here can be no doubt that a candidate

cannot be restricted from contributing to and spending for

his own candidacy.” We essentially agree. The question of

whether Kentucky can extend the 28-Day Window to in-

ternal expenditures by non-participating candidates is

largely answered by the Supreme Court’s clear statement

that “the First Amendment simply cannot tolerate [the

Federal Act’s] restriction upon the freedom of a candidate

to speak without legislative limit on behalf of his own can-

didacy.” Buckley, 424 U.S. at 54; see Colorado Republican

Fed. Campaign Comm. v. Federal Election Comm’n, 116

S.Ct. 2309, 2321 (1996) (Kennedy, J., concurring in the

judgment and dissenting in part) (“The central holding in

[Buckley] is that spending money on one’s own speech must

be permitted.”).

The Buckley Court reached this conclusion primarily

for two reasons. One, it found that “the Act’s expenditure

limitations impose far greater restraints on the freedom of

speech and association than do its contribution limitations.”

Buckley, 424 U.S. at 44.'° Two, the Court found that “[t]he

10 In addition to limiting the amount a candidate could spend on

his own campaign, the Federal Act 1) imposed a ceiling on over-

all expenditures by a candidate, and 2) limited the size of inde-

pendent expenditures, i.e., those made “relative to a clearly iden-

tified candidate,” but not authorized or requested by the candi-

date. Buckley, 424 U.S. at 39. All of these expenditure limita-

tions were held to be unconstitutional in Buckley. Id. at 58.

20a

primary governmental! interest [of preventing] actual and

apparent corruption of the political process does not sup-

port the limitation on the candidate’s expenditure of his

own personal funds,” id. at 53, because a candidate cannot

become beholden to himself. Indeed, as the Court pointed

out, “the use of personal funds reduces the candidate's

dependence on outside contributions and thereby counter-

acts the coercive pressures and attendant risks of abuse to

which the Act’s contribution limitations are directed.” Id.

The corruption-related interest cited by Buckley remains

“the only legitimate and compelling government interest{]

thus far identified for restricting campaign finances.” Fed-

eral Election Comm’n v. National Conservative Political

Action Comm., 470 U.S. 480, 496-97 (1985).

Because “[t]he central holding in [Buckley] is that spend-

ing money on one’s own speech must be permitted,” Colo-

rado Republican Comm., 116 S.Ct. at 2321 (Kennedy, J.,

concurring in the judgment and dissenting in part), there

is little room for Defendants to maneuver in attempting to

show that the 28-Day Window can be constitutionally ap-

plied to internal expenditures. Nonetheless, we consider

one possible distinction between the 28-Day Window and

the internal expenditure provisions struck down in Buckley.

Although Buckley pointed out that a candidate’s use of his

own money does not lead to corruption, Kentucky’s inter-

est in preventing actual and apparent corruption is served

by the 28-Day Window’s application to internal expendi-

tures, albeit indirectly. Extension of the 28-Day Window

to internal expenditures increases the effectiveness of the

Window, which increases the effectiveness of the Trigger,

which, in turn, strengthens the incentives for participating

in Kentucky’s campaign finance scheme, a scheme which

is clearly aimed at the prevention of actual and apparent

corruption. However, we ultimately must conclude that a

distinction based on this reasoning cannot rescue the con-

stitutionality of the 28-Day Window’s application to inter-

nal expenditures.

2la

We reach that conclusion for several reasons. One,

Buckley relies more on the extent of the First Amendment

burden imposed by expenditure limits than it does on the

weight of governmental interests. See Pacific Gas & Elec.

Co. v. Public Utils. Comm’n of Cal., 475 U.S. 1, 29 n.2

(1986) (Rehnquist, J., dissenting) (“[T]he critical distinc-

tion [in Buckley] between the contribution and expenditure

limitations [is] not the relative worth of the respective gov-

ernmental interests,” but instead is the fact that expendi-

ture “limits ‘impose far greater restraints on the freedom

of speech and association.”) (quoting Buckley, 424 U.S. at

44). Two, Buckley stated that “[t]he markedly greater bur-

den on basic freedoms caused by [the limit on independent

expenditures] cannot be sustained simply by invoking the

interest in maximizing the effectiveness of the less intru-

sive contribution limitations.” Buckley, 424 U.S. at 44. Simi-

larly, we reject the argument that the greater burden im-

posed by the 28-Day Window’s extension to internal

expenditures can be justified by its impact on the effective-

ness of the less intrusive Trigger provision. Three, the

marginal increase in the effectiveness of the Trigger that

is gained by extending the 28-Day Window to internal ex-

penditures is obviously aimed at wealthy candidates. In-

deed, Defendants argue that the extension “ensures that a

candidate who is extremely wealthy will not be able to ‘buy

the election’ with unfettered and unopposed campaign

power in the final days before votes are cast.” Because the

marginal increase is aimed at wealthy candidates, it pro-

vides an insufficient justification. Buckley found that the

“interest in equalizing the relative financial resources of

candidates . . . is clearly not sufficient to justify the [inter-

nal expenditure] provision’s infringement of fundamental

First Amendment rights.” Id. at 54.

Defendants suggest another possible way to distinguish

the 28-Day Window from the internal expenditure provi-

sion struck down in Buckley. They argue that the Window

restricts contributions but not expenditures, because a gu-

22a

bernatorial candidate can spend as much of his personal

funds as he wants during the 28-day period, as long as the

money is already deposited in his slate’s campaign account

when the period begins. Though candidates are prohibited

from contributing to their own accounts in the last twenty-

eight days, Defendants maintain that the act of contribut-

ing to one’s own account does not involve any expression.

This distinction, too, must fail for a number of reasons.

To begin with, it is erroneous for Defendants to argue

that contributions but not expenditures are prohibited in

the last twenty-eight days. If a candidate were to desire,

during those twenty-eight days, to spend additional

amounts of his own money on the campaign, Defendants’

argument would dismiss the additional money as merely a

contribution, which could be prohibited. However, Buckley

explicitly rejected a lower court’s attempt to characterize

“the personal funds expended by the candidate on his own

behalf as a contribution rather than an expenditure.”

Buckley, 424 U.S. at 52 n.58.

Defendants attempt to portray the requirement that a

candidate deposit his personal funds in the campaign ac-

count before the twenty-eight days begin as little more

than a financial technicality. However, it is much more

than that, because it forces a candidate to decide in ad-

vance how much of his own money he will spend, before he

has a chance to assess the public opinion polls and actions

of his opponents in the last month of the campaign. More-

over, it would simply not be feasible for a candidate to

deposit virtually all of his personal resources in the cam-

paign account in advance, just in case he decides, during

the last twenty-eight days, to spend those resources on his

campaign. First, it is unlikely that all of the candidate’s

personal resources will be liquid. Second, the mere deposit

of his personal funds counts towards activating the Trig-

ger. Third, the candidate cannot easily take back his money

a

a a

23a

if it is unexpended at the end of the campaign"! In sum, it

is disingenuous for Defendants to argue that the 28-Day

Window does not burden a candidate's ability to spend

personal funds on his own campaign.

Finally, Defendants attempt to distinguish the 28-Day

Window from the provision struck down in Buckley by char-

acterizing it as “merely a time, place and manner restric-

tion.” Buckley acknowledged that “the government may

adopt reasonable time, place, and manner regulations,

which do not discriminate among speakers or ideas, in

order to further an important governmental interest unre-

lated to the restriction of communication.” Buckley, 424

U.S. at 18. However, the Buckley Court went on to con-

clude that the Federal Act’s expenditure limits, and even

its external contribution limits, do not fall into that cat-

egory, because they “impose direct quantity restrictions on

political communication and association.” Jd. (emphasis

added). In the previous paragraph, we discussed the ef-

fects of prohibiting a candidate from contributing to his

own campaign in the final month. Because the effects are

substantial, rather than just being a matter of timing, we

agree with the district court that “[i]t cannot be seriously

argued that the prohibition at issue does not restrict the

quantity of political speech” (emphasis added). Therefore,

for the same reason cited by Buckley, the 28-Day Window

'! Under Ky. Rev. Stat. § 121.180(10), the unexpended funds in

the campaign account of a participating slate shall “escheat to

the State Treasury, be returned pro rata to all contributors, .. .

be transferred to the state or county executive committee of the

political party of which the candidate is a member except that a

candidate . . . may retain the funds to. . . seek election to the

same office or may donate the funds to any charitable, nonprofit,

or educational institution.” Candidates cannot get around this

provision by making large loans to their campaigns. See id.

§ 121.150(13) (“No candidates running as a slate . . . shall

make combined total personal loans to their committee in excess

of fifty thousand dollars.”).

24a

cannot be characterized as a mere time, place and manner

restriction.

While we are sympathetic to the administrative goals

of the 28-Day Window, we cannot distinguish it from the

internal expenditure provision struck down in Buckley.

Thus, we are bound by the Supreme Court’s clear state-

ment that “the First Amendment simply cannot tolerate”

this type of restriction on the freedom of a candidate to

speak on his own behalf. Buckley, 424 U.S. at 54. Accord-

ingly, we affirm the district court’s holding that the 28-

Day Window is unconstitutional when it prohibits a non-

participating candidate from contributing to his own

campaign.

VI. Conclusion

We hold that Kentucky’s Sponsor Identification provi-

sion, Ky. Rev. Stat. § 121.190(1), Slating requirement, id.

§ 118.127, and Trigger provision, id. § 121A.030(5)\{a), are

all constitutional. We further hold that the 28-Day Win-

dow, id. § 121A.030(5), is constitutional with respect to

contributions from external sources. However, we hold

that the 28-Day Window is unconstitutional when it pro-

hibits a non-participating candidate from contributing to

his own campaign. Thus, we AFFIRM the district court’s

decision in all respects.

~ CONCURRING IN PART, DISSENTING IN PART

CUDAHY, Circuit Judge, concurring in part and dis-

senting in part.

I concur in all of the cogent majority opinion except

Part V.B., which invalidates the 28-Day Window insofar as

it prohibits candidates from contributing to their own cam-

paigns during the final weeks before an election. As the

majority explains, Kentucky’s campaign finance system is

designed to combat actual and apparent corruption. The

28-Day Window does not merely “indirectly” advance this

goal as the majority suggests; instead the Window is cru-

cial to the effectiveness of the entire Kentucky scheme and

its invalidation threatens to derail this reform effort. The

25a

28-Day Window is intended to preclude participating and

non-participating candidates from infusing last-minute cash

into their campaign coffers, too late to be reported and to

allow a response by their opponents. The majority has

approved this 28-Day Window to the extent that it limits

contributions by supporters. But as a result of the

majority's disallowance of the same limitation on self-fi-

nancing, a candidate using his own funds wiil now be free

to ambush an adversary with a torrent of new cash after

the last reporting deadline, when a response is no longer

possible. A provision that forbids this unfair practice should

not require a defense.

To justify its result, the majority is not, as it claims,

merely applying Buckley v. Valeo, 424 U.S. 1 (1976). In-

stead, the majority is extending that case in a fashion that

Buckley specifically forecloses. As the majority concedes,

Buckley authorizes “reasonable time, place, and manner

regulations, which do not discriminate among speakers or

ideas, in order to further an important governmental in-

terest unrelated to the restriction of communication,” pro-

vided that the regulations do not impose “direct quantity

restrictions on political communication and association.”

424 U.S. at 18 (emphasis added).

Here the purpose and effect of the 28-Day Window is to

prohibit contributions at a highly sensitive time—within a

few weeks or days of the election and after the last finan-

cial report has been made. Since this is the end of the

campaign, total contributions might be less than if there

were no such restrictions. But the prohibition applies di-

rectly and explicitly to when contributions are made; there

is no impact on amount unless, without the restriction, a

candidate decided on a last-minute contribution. Whether

a candidate would make such a contribution is a matter of

conjecture. Compare id. at 19 (“The expenditure limita-

tions contained in the Act represent substantial rather than

merely theoretical restraints on the quantity and diversity

of political speech.”). The provision before us therefore

does not impose “direct quantity restrictions” and is not a

violation of the Buckley principle.

26a

Nor does the 28-Day Window involve the evil at which

Buckley was aimed. Buckley was concerned that a candi-

date not be prohibited from contributing to, and spending

money on, her own candidacy. See id. at 52-53. Certainly

that freedom is not at stake here. Candidates are free to

make contributions, as frequently as they wish and of what-

ever magnitude they choose, before the advent of the 28-

Day Window. The majority makes a number of unconvinc-

ing arguments about why this freedom fails to satisfy the

requirements of the First Amendment. In particular, the

majority has advanced the strawman that a candidate

might need to “deposit virtually all of his personal re-

sources” before the 28-day limit in the expectation of trouble

to come. The reality would be simply that the candidate

would put up something before the 28-Day Window (that

she would be required to report) as a hedge against last-

minute difficulties. If the difficulties did not materialize,

it is likely that regular campaign expenses could absorb

the surplus. In any event, if there were no last-minute

problems requiring additional cash, the candidate’s cam-

paign no doubt went well, and she would be untroubled by

any surplus.

All the 28-Day Window provides is notice that the con-

tribution has been made and an opportunity for the oppo-

nent to respond. The provision thereby removes the un-

fairness of last-minute, unreported contributions. It is true

that Buckley prohibits “restrict[ing] the speech of some

elements of our society in order to enhance the relative

voice of others.” Jd. at 48-49. But that does not mean that

the First Amendment protects the right to ambush an op-

ponent. Cf. First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 789 (1978) (“If appellee’s arguments were supported

by .. . findings that . . . advocacy threatened imminentlv

to undermine democratic processes, thereby denigrating

rather than serving First Amendment interests, these ar-

guments would merit our consideration.”) (citing Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367 (1969)). Nor do I

believe that denying such a right would result, as the ma-

jority contends, in only a “marginal” increase in the effec-

27a

tiveness of the Trigger. The majority's logic here is not

transparent. It may be saying that, since the application

of the 28-Day Window is aimed at wealthy candidates, the

effect is only marginal and cannot be a basis for disregard-

ing Buckley's injunction against attempting to equalize the

financial resources of candidates. I am not sure how we

can conclude that the effect of a last-minute cash infusion

into a campaign that could be won by a single vote is only

“marginal.” However, if this is so, by the same token its

prohibition cannot be a significant infringement of the First

Amendment.

In sum, the majority is troubled that the 28-Day Win-

dow is a “burden” on a candidate’s freedom to speak with

her own dollars. But the alternative is to construct a

special right to speak with unreported dollars at the last

minute when no response is possible. I do not believe that

the First Amendment requires such a perverse construc-

tion, and I therefore respectfully dissent with respect to

this issue.

28a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

FRANKFORT

Civil Action No. 95-12

ROBERT E.GABLE, Et Al. - - - - - Plaintiffs.

U,

BRERETON C. JONES, Et Al., - - - Defendants.

MEMORANDUM OPINION AND ORDER—

Filed March 29, 1996

The parties, by and through counsel, having moved for

summary judgment [Record Nos. 68, 71, 73, 75 & 79], and

the Court having considered the parties’ briefs, and argu-

ment of counsel, this matter is ripe for decision.

PROCEDURAL BACKGROUND

The plaintiffs filed the instant action on February 17,

1995, seeking a declaration of the constitutionality of vari-

ous statutes under Kentucky’s Campaign Finance Reform

Law. As the basis of the Court’s jurisdiction over this

matter and a sufficient statement of the factual background

have been set out in the Court’s partial declaratory judg-

ment order, a recitation of those facts is not necessary

here.

The parties’ motions for summary judgment address

each of the 22 claims in the plaintiffs’ amended complaint.

However, Counts III, V, VII, VIII, X, XII, XIII, XIV, XV,

XVIII, XX have been dismissed.' Accordingly, the Court

' As the claims forwarding allegations asserted by the plaintiff,

Darryl Sebastian [Sebastian], have been dismissed, the Court

must dismiss Sebastian as a party to this action and will there-

fore refer to the plaintiff, Robert Gable [Gable], in the singular.

29a

will address only the remaining claims, as well as revisit

Gable’s claim in regard to KRS 121.190.

DISCUSSION

I. Count I — KRS 118.125 and 118.127

KRS 118.125 and 118.127 were implemented by the

legislature to give effect to a Kentucky constitutional

amendment affirmed by referendum in 1992 which requires

that Kentucky Gubernatorial and Lieutenant Gubernato-

rial candidates run as a slate. KRS 118.127 provides in

pertinent part that “[n]o candidate for Governor or Lieu-

tenant Governor shall appear individually on the ballot for

the nomination he is seeking.”

Gable argues that the slating requirement infringes

upon his First Amendment right to free political associa-

tion and his rights under the Fourteenth Amendment and

is not supported by any compelling or important state in-

terest. The defendants argue that the issue before the

Court is not one concerning free political association, but

rather one of “ballot access.” The defendants contend, in

the alternative, that the slating requirement is supported

by Kentucky’s compelling interests in preventing factional-

ism and providing a stable government.

“Core political speech” is not regulated by these elec-

tion code provisions, McIntyre v. Ohio, 115 S.Ct. 1511

(1995), and thus KRS 118.125 and 118.127 do not burden

Gable’s First Amendment Right to free political associa-

tion.? Instead, these statutes burden Gable’s right to ac-

cess the ballot and thus are subject to the “ordinary litiga-

tion” test set forth in Anderson v. Celebrezze, 460 U.S.

708K (1983). The Court in Anderson held that when a

state election law imposes only “reasonable, nondiscrimi-

2 These statutes do not prevent Gable, as an individual

running for governor, from choosing whomever he wishes

to be his running mate. Thus, Gable may be as free in his

political association as he chooses.

30a

natory restrictions”, the state’s “important regulatory in-

terests are generally sufficient to justify; the restrictions.

Id. at 788. It is undisputed that Kentucky's interest din

preventing factionalism and in stabilizing government are

recognized as compelling. See, Storer v. Brown, 415 U.S.

724, 736 (1974) American Party of Texas v. White, 415 U.S.

767, 781 (1974).

KRS 118.125 and 118.127 are found to be reasonable,

nondiscriminatory, and vir'ually unobtrusive restrictions

on Gable’s right to access the gubernatorial ballot. Any

burden on his First Amendment right to access is slight.

Against this burden, Kentucky has compelling interests

which were born of years of attempting to cope with fac-

tionalism in the gubernatorial race. Such state interests

certainly justify the limited restrictions on ballot access

imposed by KRS 118.125 and 118.127.

To conclude otherwise would sacrifice a measure of po-

litical stability gained by the enactment of the statutes for

the interest of potential gubernatorial candidates who wish

to “run alone”, a result not mandated by the First or the

Fourteenth Amendments.” Accordingly the defendants’ mo-

tion for judgment as a matter of law as to Count I must be

granted.

II. COUNTS II AND VI — KRS 121.030(5),

KRS 121.030(5)(a)

This Court must first determine whether KRS

121A.030(5) burdens Gable’s right to free political expres-

sion and whether 121A.030(5)(a) creates benefits for par-

ticipating slates which in effect burden Gable’s constitu-

tional ‘right to free political speech. Sec, Buckley v. Valeo,

424 U.S. 1, 25 (1976). If Gable’s right to free political

speech is burdened, then the statutory provisions must be

narrowly tailored to meet a compelling state interest in

order to comport with the mandates of the First Amend-

ment. Id. at 18.

KRS 121A.030(5) prohibits slates of candidates in the

governor's race from accepting campaign contributions dur-

3la

ing the thirty days immediately preceding a primary or

general election, or during the fourteen days immediately

preceding a primary run-off. KRS 121A.030(5)(a) lifts the

expenditure limitation upon a participating slate in the

event a non-participating slate exceeds $ 1.8 million in

campaign expenditures, allowing either candidate to ac-

cept campaign contributions within thirty days of the elec-

tion’. It also provides for additional public funding on a “2

to 1” ratio for a participating slate, once the expenditure

limit has been lifted.*

Gable contends that these statutes create unconstitu-

tional burdens as they: (1) prohibit him from contributing

to his own, or any campaign, in the thirty days prior to a

primary or general election; (2) use his spending as a “trig-

ger” for lifting the spending cap on participating slates;

and (3) use his spending as a trigger for making additional

public funds available for the participating slates.

A. CANDIDATE’S CONTRIBUTION TO

HIS OWN CAMPAIGN

There can be no doubt that a candidate cannot be re-

stricted from contributing to and spending for his own can-

didacy. Id. In Buckley the Supreme Court conveyed the

magnitude of the protected right to contribute to one’s down

campaign. Id. at 52-53. The defendants argue that the

Court in Buckley found only that the amount of campaign

contributions from a candidate may not be constitutionally

limited.

Kentucky’s Election Finance Reform laws prohibit can-

didates from contributing to their own campaigns during

the reporting period. In the event the participating slate

expends, or has accepted, more than $1.8 million in the

course of the campaign, the prohibition is lifted and both

3 The term “participating slate” refers to slates of candidates

who file a statement of intent that they will accept transfers

from the public fund created by KRS 121A.020(1), and in turn

limit their campaign spending to $1.8 million.

32a

participating and non-participating slates may continue to

accept contributions or make contributions to their own

campaign. If the non-participating slate has not spent

over $1.8 million, neither slate is allowed to accept contri-

butions during the reporting period. S

The Court in Buckley did not address the narrow ques-

tion before this Court: whether a “time” restriction limit-

ing when a candidate may contribute to his own campaign

is constitutionally permissible. The Court did, however,

hold that the contribution limitations of the Federal Elec-

tion Campaign Act of 1971 imposed direct quantity restric-

tions on political communications, in addition to any rea-

sonable time, place, and manner regulations and that such

restrictions were unconstitutional. Jd. at 18.

The government may adopt reasonable time, place, and

manner regulations, which do not discriminate among

speakers or ideas, in order to further an important govern-

mental interest unrelated to the restriction of communica-

tion. See, Erznozik v. City of Jacksonville, 422 U.S. 209,

209 (1975); Cox v. Louisiana, 379 U.S. 559 (1965); Adderly

v. Florida, 385 U.S. 39 (1966); and Kovacs v. Cooper, 336

U.S. 77 (1949).

The allowable time, place, and manner restrictions are

not exceptions to the doctrine of the First Amendment. It

cannot be seriously argued that the prohibition at issue

does not restrict the quantity of political communication.

This statutory provision prohibits any contribution during

the reporting period, therefore it is more restrictive in scope

than the limitation addressed by the Court in Buckley.

The instant action is’ distinguishable’ from that in Cox,

where the Supreme Court found parading and picketing ‘o

be conduct “intertwined with expression and association.”

Cox v. Louisiana, 379 U.S. at 563-564. The Court in Buckley

clearly held that the ability to contribute to ones own cam-

paign is a “substantial restraint on the ability of persons

to engage in protected First Amendment expression.”

Buckley v. Valeo, 424 U.S. at 52. Thus, contribution to

ones own campaign is not merely conduct “intertwined with

33a

expression” and association” but is political expression

squarely protected by the First Amendment.

The defendants concede that the prohibition at issue

has been constructed in part to prevent last minute media

blitzes by a candidate. Thus, the governmental interest in

preventing campaign contributions during the reporting

period involves “suppressing communication.” United States

v. O’Brien, 391 U.S. 367, 382 (1968). The Court in Buckley,

found that governmental interest in regulating “giving or

spending money ‘arises in some measure because the com-

munication allegedly integral to the conduct itself is thought

to be harmful.’” Buckley v. Valeo, 424 U.S. at 17 (citing

United States v. O’Brien, 391 U.S. at 582). The Court held

that the primary governmental interest of preventing’ ac-

tual and apparent corruption of the political process does

not support a limitation on the candidate’s expenditure of

his own funds. Jd. at 54. Moreover, administrative ease” is

not a compelling state interest.

Accordingly, the contested statute abrogates any con-

tribution for a 30 day period and does not merely “restrict”

protected speech within the narrow scope of acceptable

“time” limitations. To the extent that KRS 121A.030(5)

limits a candidate's ability to contribute to his own cam-

paign during the reporting period, the statute unconstitu-

tionally restricts the candidate’s First Amendment right to

free political expression and Gable’s motion for summary

judgment on Count II must be granted. On the other

hand, Buckley legitimatizes limiting contributions from

other sources during the reporting period.

B. LIFTING THE CAP ON PRIVATE CONTRIBUTIONS

Clearly, the trigger mechanism allowing a non-partici-

pating to continue to raise money above the agreed

$600,000.00 limit is not a burden upon Gable’s right to

free political speech. If Gable chooses to spend freely, this

trigger mechanism will only promote political dialogue by

lifting the spending cap from non-participating slates.

Gable does not explain why he believes that the “use of his

34a

spending” in this manner stifles his political expression or

speech.

Moreover, the argument that the statute “chills” his

free speech is not compelling. Again, Gable’s freedom to

spend is not restricted by KRS 121A.030(5)(a), and any

“chill” upon his right to communicate is countered by

Kentucky's compelling interest in combatting actual and

apparent corruption of the political process.‘ See, Wilkinson

v. Jones, 876 F.Supp. 916 (W.D.Ky. 1995).

C. ADDITIONAL PUBLIC FINANCING TRIGGERED

BY SPENDING OF NON-PARTICIPATING SLATE

Gable argues that the incentive of additional “2 to 1”

public funding is “coercive” and results in an unconstitu-

tional burden upon his right to free political speech. The

defendants rely upon the decisions in Buckley, Wilkinson,

and the First Circuit Court of Appeals’ decision in Vote

Choice, Inc. v. Distefano, 4 F.3d 26, 38 (1st Cir. 1993), to

counter Gable’s argument.

The Court in Buckley squarely upheld the constitution-

ality of incentives created to encourage participation in

expenditure limitation schemes. The Court rejected the

“benefit equals burden” argument. Thus, this argument

will not be successful here. Moreover, it is well estab-

lished that without some evidence to the contrary, public

financing schemes will not be treated as “punitive” mea-

sures. See, Vote Choice, Inc. v. Distefano, 4 F.3d at 38.

However, the Court in Buckley and the court in Vote Choice

acknowledged that although a statutorily created benefit

does not per se result in an unconstitutional burden, such

benefits could conceivably “snow ball” into a “coercive” mea-

sure upon a nonparticipating candidate. Vote Choice, Inc.

v. Distefano, 4 F.3d at 39-40.

4 Apparently, Gable believes that the lifting of spending limits

results in an incentive to the nonparticipating slate to accept

expenditure limits. This may be true, but the United States

Supreme Court upheld incentives for participation in publicly

financed campaigns in Buckley.

EO

35a

There is no question but that the trigger provision al-

lowing additional spending and continued “2 to 1” match-

ing of funds restricts free political speech. It is a burden

because the speech of a non-participating candidate is

chilled in two ways. First, this particular incentive will

result in some degree of tempering speech once the

candidate’s contributions near the $1.8 million mark. Sec-

ond, speech will be stifled to some degree by the fear that

the participating candidate will clearly “outspend” the non-

participating candidate once the cap is lifted, given the

additional “2 to 1” funding. Moreover, there is no question

but that the state has a compelling interest in keeping

campaign expenditures at levels that do not encourage ac-

tual or apparent corruption of the political process, i.e. to

keep one candidate from essentially buying a campaign.

Gable argues that there is a point where incentives

become coercive. This Court agrees, and although this

theory is addressed by the court in Vote Choice, the First

Circuit did not provide any concrete standard for deter-

mining when a restriction on political speech becomes co-

ercive.

Once a First Amendment analysis of a statute reaches

the point where burden and compelling state interest are

no longer the questions, the focus becomes the invasive-

ness of the statute. Thus, whether a statute is unconstitu-

tionally coercive is a matter of degree. Coerce is defined

by Webster’s New World Dictionary (2nd College Edition)

as “to restrain or constrain by force.” Without any evidence

that the, statute literally forces the non-participating can-

didate to accept public financing, Gable’s arguments must

fail.

Very few, if any, legislative financing schemes will

achieve perfect equipoise. Kentucky's law imposes restric-

tions upon non-participating candidates which must be ac-

cepted in order to reap the benefits. The financing pro-

gram is available to any candidate which meets the

eligibility requirements. Although the additional “2 for 1”

incentive is very attractive, such desirability does not make

36a

it coercive. Gable cannot articulate why the burden felt by

a nonparticipating candidate subsequent to the cap lift is

any heavier’ than that felt before the cap is lifted. The

particular restrictions on speech mentioned previously are

not the result of undue force.

The Court can fathom a coercive scheme, for example

“4 to 1” additional funding, at which time the non-partici-

pating candidate would have no legitimate way of staying

in the race once the cap was lifted. At this juncture, the

statute would be se restrictive as to literally “force” poten-

tial candidates to accept public funding, thereby unconsti-

tutionally limiting the dissemination of information by can-

didates. Under the hypothetical, the candidate would not

have a real choice but to participate in the scheme and

would thus be coereed into accepting public funding.

Such is not the case with the statute at bar. Here,

there is no argument that “2 for 1” funding makes it nearly

impossible for the candidate running on private contribu-

tions to win the race. There is no argument that the

statute effects, much less coerces, the initial decision made:

whether the candidate can get his message to the public

on $1.8 million or less. Accordingly, as there is no evidence

that this statute creates an unconstitutionally coercive situ-

ation for a non-participating slate; the defendants are en-

titled to judgment as a matter of law as to Count VI of the

complaint.

III. COUNT IX — KRS 121.150 (13) AND (20)

Gable argues that the limitation of his ability to loan

money to his campaign constitutes a content based restric-

tion on his right to free political speech. The defendants

argue that contribution, not the act of loaning money, is a

protected First Amendment right. They further contend

that, in any event, these statutes are narrowly tailored to

meet the state’s interest in preventing the actual and ap-

parent corruption of the political process.

KRS 121.150(13) and (20) prohibit a slate from loaning

more than $50,000.00 to their campaign and establish that

37a

any amount over $50,000.00 provided by a slate or their

immediate families is deemed a contribution and is not

recoverable. These statutes impinge very slightly upon

the right to express political views, are reasonable, and

thus are subject to the “ordinary litigation” test. See, Ander-

son v. Celebrezze, 460 U.S. 708 (1983).

Historically, Kentucky has had a tremendous problem

with gubernatorial candidates making “windfall” loans to

the campaign, which typically make the candidate finan-

cially vulnerable, and which are “repaid” with monies con-

tributed by those seeking certain “favors” from the suc-

cessful candidate. This problem is documented and does

not merely exist in the minds of the defendants. Gable

argues that the restrictions on contributions now obviate

this problem, and that this statutory provision has no pur-

pose. Gable’s argument is not persuasive, however, as the

threat of becoming indebted to those who contribute, so-

licit contributions, or encourage contributions for a par-

ticular gubernatorial candidate is real and immediate with-

out a limitation on loans.

These regulatory statutes are, narrowly tailored to meet

a very compelling interest in establishing and preserving

integrity in Kentucky’s political system. See, Wilkinson v.

Jones, 876 F.Supp. 916 (W.D. Ky. 1995). Accordingly, sum-

mary judgment must be granted in favor of the defend

ants on Count IX of the complaint.

IV. COUNT XVII — KRS 121.150(1)

Gable argues that KRS 121.150(1) restricts his free po-

litical speech and that it is so vague that a reader cannot

discern what actually constitutes an “indirect” solicitation

of an independent expenditure. The defendants contend

that the statute is narrowly tailored to prohibit “agree-

ments” between a candidate or his agents and an indi-

vidual which are intended to circumvent the contribution

and expenditure limitations.

First and foremost, independent expenditures on be-

half of a candidate are allowed. The limitation on inde-

38a

pendent expenditures imposed by KRS 121.150 is that the

candidate may not request, cooperate in the making of,

suggest, or consent to, the expenditure. Thus is the source

of the label “independent” expenditure. Moreover, any per-

son expending more than $500.00 in independent expendi-

tures in any one election must report the expenditures to

the registry. “he statute does not limit the amount that

may be spent independently in any one election. More-

over, the amount spent on an “independent expenditure” is

not considered a contribution for the purposes of the stat-

ute. A person may independently expend money for whom-

ever, however, and whenever during the election process

he or she wishes. Clearly, the statute is constitutional on

its face as it does not burden protected speech.

A direct solicitation is obvious: “Rent a billboard on

1-64 with my name on it.” A statement such as, “I certainly

would like a billboard on I-64 with my name on it, but I

cannot afford it, and I could not ask you to do that”, would

be an indirect solicitation.

It is true that “indirect solicitation” is not defined in

the statute. While actions constituting indirect solicitations

may be less obvious, political experience, logic, and refer-

ence to the purpose of the statute and the context in which

“indirect” solicitation is used will aid the reader in deter-

mining what conduct is prohibited. Thus, the statute is

not so vague as to restrict free political speech.

V. COUNTS XIX — XXII — KRS 121.0255 AND

KRS 121.045

Gable argues that KRS 121.055 and KRS 121.045 im-

pose content-based restrictions on political speech in viola-

tion of the First Amendment and that the restrictions are

so vague as to deny him due process in violation of the

Fourteenth Amendment. Gable concedes that it is the

application of the statutes which renders them unconstitu-

tional. The defendants contend that it is the interpretation

given the statute’ by Gable that renders Kit “questionable”

and that the statute is not unconstitutional on its face nor

ee

39a

is it unconstitutional as applied by the Commonwealth.

Simply speaking, KRS 121.055 and 121.045 prohibit

vote buying. In Brown v. Hartlage, 102 S.Ct. 1523, 1529

(1982), the Supreme Court held that the predecessor stat-

ute to KRS 121.055 was unconstitutional as applied under

the circumstances presented, but found that the statute

“presents little constitutional difficulty” in many of its pos-

sible applications. The Court also acknowledged that the

statute is a “narrowly tailored means of promoting” the

Commonwealth’s compelling interest in preventing corrup-

tion. Id. at 1530.

The Court in Brown gave numerous examples of prom-

ises which would be protected by the First Amendment,

such as promises to lower or raise taxes. The Common-

wealth has been given specific direction by the United

States Supreme Court on how to constitutionally apply

this statute, reducing the possibility of misapplication in

the future. Thus, the Court in Brown narrowed the con-

struction of the statute to prohibit promises that amount

to quid quo pro conduct, and to allow general campaign |

promises to voters. Accordingly, the Court’s holding in

Brown precludes a challenge to the facial validity of KRS

121.055. The constitutionality of the statute may only be

challenged as to its application.

Gable does not allege that the state attempted to en-

fo.ce this statute against him. Thus, as there is no chal-

lenge to the application of this statute, summary judgment

in favor of the defendants on Counts XIX and XX is war-

ranted.

Moreover, in Lee v. Commonwealth, 565 S.W.2d 634

(Ky. Ct. App. 1982), the Kentucky Appeals Court consid-

ered the constitutionality of KRS 121.045 and held it to be

unconstitutional to the extent that it prohibits donations

to a candidate for office of property valuator by persons

whose property he may assess. Again, this is a statute

which may be unconstitutional in its application. This

Court, however, will not find a statute invalid on its face

merely because it is possible to conceive of limited imper-

40a

missible applications. See, Leonardson v. City of East Lan-

sing, 896 F.2d 190 (6th Cir. 1982).

The Court in Lee gave some direction as to the scope of

KRS 121.045 and how it may be applied in the future. As

such, the statute has been narrowed, and although it is

not artfully written, it cannot be said to be unconstitution-

ally vague or overbroad. See, Broderick v. Oklahoma, 413

U.S. 601, 613 (1973). Accordingly, Counts XXI and XXII

must be dismissed as a matter of law.

V. COUNT XI — KRS 121.990(3),

121A.990(1)(a) AND (3)

KRS 121.990(3) and 121A.990(1)(A) and (3) set penal-

ties for violations of various provisions of the act. To the

extent penalties are set for the violation of laws which

have been held to be constitutional, no argument as to

restriction of free speech lies. However, penalties for the

exercise of protected free speech is an additional restric-

tion which cannot be tolerated. Thus, the penalties pro-

scribed by the legislature will stand where such penalties

are imposed upon a violation of the statutes which have

been held to pass constitutional scrutiny.

Accordingly,

IT IS ORDERED HEREIN,

(1) That the defendants’ motions for summary judg-

ment [Record Nos. 71, 73, 75, 79] be, and the same hereby

are, GRANTED, as to Counts I, VI, IX, XI, XVII, XIX, XX,

XXI and XXII of the complaint;

(2) That the plaintiffs motion for summary judgment

[Record No. 68] be, and the same hereby is, GRANTED as

to Count II of the complaint;

(3) That the defendants Paul Patton, Ben Chandler and

the Kentucky Registry of Election Finance and all persons

in active participation or concert with them or who receive

actual notice of this order by personal service or otherwise,

are ENJOINED from enforcing Kentucky Revised Statute

121A.030(5) to the extent that it prohibits a slate of candi-

4la

dates from contributing to their own campaign; and

(4) That Counts I, VI, IX, XI, XVII, XIX, XX, XXI and

XXII of the complaint be, and the same hereby are DIS-

MISSED.

This the 29th day of March, 1996.

/s/_ Joseph M. Hood

Joseph M. Hood, Judge

Date of Entry and Service: 9/1/96

By: /s/ Christy Dearborn

District Clerk

42a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

FRANKFORT

Civil Action No. 95-12

ROBERT E. GABLE, and

DARRELL SEBASTIAN, - - - - - _ Plaintiffs.

VU.

BRERETON C. JONES, Et Al, - - - Defendants.

PARTIAL DECLARATORY JUDGMENT—

Filed January 5, 1996

This matter is before the Court upon the parties’ cross

motions for summary judgment. After considering the briefs

and oral arguments,

IT IS ORDERED AND ADJUDGED that as there is no

genuine issue of material fact to be adjudicated as to KRS

121.150(2) or KRS 121A.080(6), the defendants are en-

titled to a partial declaratory judgment as a matter of law.

JURISDICTION AND VENUE

1. This Court has jurisdiction over this action pursu-

ant to 28 U.S.C. §§ 1331 and 1343. Venue is found under

28 U.S.C. §§1391(b) and 1392. Declaratory relief is appro-

priate under 42 U.S.C. § 1963, 28 U.S.C. § 2201 and

Fed.R.Civ.P. 57.

PARTIES

2. The Plaintiff, Robert E. Gable, is a resident of

Franklin County, Kentucky, and was a duly qualified can-

didate for the Republican Party’s nomination for the office

of Governor of the Commonwealth of Kentucky in the 1995

primary election.

7s eS ee Ee, Oe

ae — fe ee ee ee my

43a

3. The Defendant-Counterclaimant, Kentucky Regis-

try of Election Finance, is ran independent agency of the

state government responsible for enforcing Chapter 121

and Chapter 121A of the Kentucky Revised statutes.

4. The Defendant-Counterclaimant, Joseph H. Terry,

is chair of the Kentucky Registry of Electron Finance, and

was sued in his official capacity.

5. The Defendant-Counterclaimant, Chris F. Gorman,

is Attorney General, and was sued in his official capacity.

6. The Defendant-Counterclaimant, Bob Babbage, is

the secretary of state and was sued in his official capacity

7. The Defendant-Counterclaimant, Paul Patton, is the

Governor of the Commonwealth of Kentucky. Governor

Patton was substituted for former Governor Brereton Jones,

who was sued in his official capacity.

DEFINITIONS

8. As used in this Judgment, the term “Participating

Slate” means a slate of candidates for Governor and Lt

Governor who have filed with the Registry pursuant to

KRS 121A.040(3) a statement of intent to accept transfers

from the public fund established by KRS 121A.020(1).

9. As used in this Judgement, the term “Nonpartici-

pating Slate” means a slate of candidates for Governor and

Lt. Governor who have filed with the Registry pursuant to

KRS 121A.040(3) a statement of intent to reject transfers

from the public fund established by KRS 121A.020(1).

FACTS

10. Plaintiff moved the court for summary judgment

regarding several provisions of Kentucky’s campaign fi-

nance legislation contained in KRS chapter 121 and 121A.

He sought declaratory and injunctive relief as to the chal-

lenged statutes.

11. Defendants submitted cross motions for summary

judgment. They sought a declaratory judgment declaring

the challenge statutes constitutional.

44a

12. The Court heard oral argument on the cross mo-

tions for summary judgment on December 21, 1995.

13. KRS 121.150(2) provides as follows:

Except as provided in KRS 121.180(10), the solicita- ;

tion from and contributions by candidates, slates of

candidates, campaign committees, political issues com-

mittees, permanent committees, and party executive

committees to any religious, charitable, civic, eleemo-

synary, or other causes or organizations established

primarily for the public good is expressly prohibited;

except that it shall not be construed as a violation of

this section for a candidate or slate of candidates to

continue regular personal contributions to religious,

civic, or charitable groups.

14. Plaintiff contends the statute means candidates for

public office may only contribute to those charities to which

they had regularly contributed prior to officially declaring

their candidacies, and may only contribute in the amounts

they had contributed prior to declaring their candidacies.

a ee ee ee ee

15. The Registry construes the statute to permit natu-

ral persons who become candidates for office to make chari-

table contributions without limitation. The Registry’s con-

struction limits the statute to prohibiting charitable

contributions by the committees enumerated in the stat-

ute, namely, campaign committees registered by candidates,

political issues committees, permanent committees and

party executive committees.

16. KRS 121A.080(6) provides as follows:

A slate of candidates shall establish a separate candi-

date campaign account for each primary, runoff pri-

mary, and regular elections in which it participates.

The unexpended balance of contributions and fund

transfers in a candidate campaign account of a slate

of candidates which remains after all financial obliga-

tions of the particular ejection for which the account

is established have been satisfied shall be forwarded

to the registry for deposit in the fund when the ac-

count is closed. The payment to the fund shall be made

not later than ten (10) working days after the candi-

a il le ala

45a

date campaign account for a particular election is

closed. Funds in the candidate campaign account of a

slate of candidates shall be expended only for expenses

incurred in the particular election for which the ac-

count is established and shall not be used to pay ex-

penses incurred in any other election or for any other

purpose.

17. Plaintiff contends that this statute escheat to the

slate the unexpended balance in the campaign account of

Nonparticipating Slates, and therefore violates the rights

to freedom of speech and association secured him by the

First and Fourteenth Amendments of the united States

constitution and further constitutes a taking without just

compensation in violation of the rights secured Plaintiff by

the Fifth and Fourteenth Amendments of the United States

Constitution.

18. The Registry construes KRS 121A.060(6) to require

only the “unexpended balance of contributions and fund

transfers in a candidate campaign account” of a Participat-

ing Slate be forwarded to the Registry for deposit in the

fund when the campaign account is closed (emphasis sup-

plied). The Registry thus construes KRS 121A.080(6) to

apply only to unexpended funds in the campaign account

of Participating Slates and to have no application to unex-

pended funds in the campaign account of Nonparticipating

States, which are governed by KRS 121.180(10).

DECLARATORY RELIEF

19. The court declares that, “[iJn evaluating a facial

challenge to a state law, a federal court must, of course,

consider any limiting construction that a state court or

enforcement agency has proffered.” Hoffman Estates v.

Flipside, Hoffman Estates, 455 U.S. 489, 494 n.5 (1981)

(citing Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).

20. The Court also declares that:

[A statute] ought not be construed to violate the Con-

stitution if any other possible construction remains

available; under this canon of statutory construction,

[t]he elementary rule is that every reasonable con-

46a

struction must be resorted to in order to save a stat-

ute from unconstitutionality. . . . [A]s between two

possible interpretations of a statute, by one of which

it would be unconstitutional and by the other valid,

our plain duty is to adopt that which will save the

Act.

Rust v. Sullivan, 500 U.S. ___, 114 L.Ed.2d 2338, 253 (1991)

(internal quotation marks and citations omitted).

21.The Court declares that, in order to save KRS

121.150(2), it will adopt the narrowing construction offered

by the Registry and interpret KRS 121.150(2) to mean that

natural persons who become candidates for office may con-

tinue to make charitable contributions. Accordingly, KRS

121.050(2) is limited to prohibiting charitable contributions

by the committees enumerated in the statute, including

campaign committees registered by candidates.

22.The court declares that, in order to save KRS

121A.080(6), it will adopt the narrowing construction of-

fered by the Registry and interpret KRS 121A.080(6) to

require that only the unexpended balance of contributions

and fund transfers in a candidate campaign account of a

Participating Slate be forwarded to the Registry for de-

posit in the fund when the campaign account if closed.

(emphasis supplied). Accordingly, the Court declares that

KRS 121A.080(6) does not apply to unexpended funds in

the campaign account of Nonparticipating Slates, and that

those funds are governed by KRS 121.180(1).

23. The Court further declares that there is no genuine

issue of material fact as to KRS 121.150(2) and KRS

121A.080(6) and Defendants are entitled, as a matter of

law, to a judgment dismissing the Third and Fourteenth

causes of action asserted in Plaintiffs’ Amended Complaint

with prejudice.

This is the 5th day of January, 1996.

/s/_ Joseph M. Hood

Joseph M. Hood, Judge

Date of Entry and Service:

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