Yesterday, the U.S. District Court for the Eastern District of Kentucky invalidated Kentucky’s definitions of caucus campaign committees and its ban on contributions and gifts from lobbyists to legislators and candidates, in a Memorandum Opinion and Order in Schickel v. Dilger, Civil Action 2:15-cv-155.
The court ruled KRS 121.105(3)(b), which defines “caucus campaign committee” as limited to committees of the two major political parties for each legislative chamber, facially unconstitutional. The definition violated equal protection because minor parties are not eligible for the higher contribution limits caucus campaign committees enjoy (soon to be $5,000 annually pursuant to recently-enacted Senate Bill 75) but are instead relegated to “permanent committee” (or PAC) status, with lower limits (soon to be $2,000 annually). KRS 121.150(11), which sets those caucus campaign committee limits, is facially constitutional standing alone because it does not preclude the creation of minor party caucus committees; rather, only its application is unconstitutional to the extent the definition in KRS 121.015(3)(b) is facially unconstitutional (by reason of limiting the caucus committees to the major political parties).
KRS 6.751(2), which criminalized a legislator or spouse soliciting or accepting “anything of value” from a lobbyist or his employer, and KRS 6.811(4), which prohibited a lobbyist or his employer from offering or giving anything of value to a legislator or candidate or the spouse of child of either, were likewise held unconstitutional. The court found the prohibition on giving or accepting “anything of value” was unenforceably vague and the prohibition violated lobbyists’ rights to equal protection and freedom of association. The court further found the ban on lobbyist contributions to legislative campaigns, as encoded in KRS 6.767(1) and 6.811(6), unconstitutionally overbroad. It held that while preventing quid-pro-quo corruption is a compelling state interest, the ban was not narrowly tailored to achieving that goal as the First Amendment requires, and less restrictive means were available. These less restrictive means include public disclosure of contributions, annual limits on such contributions, or a ban on contributions only while the legislature is in session, which is the treatment afforded employers of lobbyists pursuant to KRS 6.767(2) and 6.811(7).
The court considered KRS 6.811(5)’s ban on lobbyists soliciting, controlling or delivering a contribution to a legislator or candidate, or acting as a campaign treasurer, and found it likewise unconstitutional because it was not proved to serve the purpose of combating quid pro quo corruption, much less being the least speech-restrictive means of achieving that goal. The prohibition therefore violated lobbyists’ freedoms of speech and association and are unenforceable.
The parties are ordered to draft and agree to language for a permanent injunction within 20 days that comports with the court’s ruling, after which time, there will be greater clarity on the effect of these rulings and how they will be interpreted and enforced. In the meantime, exercise caution and seek advice of counsel prior to contributing to or accepting a contribution to a caucus campaign committee or effecting a gift or contribution by a lobbyist to a legislator or candidate.