District Court Declares Part of Kansas Election Campaign Finance Act Unconstitutional as Applied

Last June, Fresh Vision OP, a 501(c)(4), filed an action against Kansas’s campaign finance law, asserting that that the law violates Fresh Vision’s right of free speech.  From the complaint:

Fresh Vision OP is a grass roots nonprofit corporation that seeks to maintain the quality of life for the residents of Overland Park through public advocacy and educational initiatives. But when Fresh Vision endorsed a candidate for mayor of Overland Park, who it believed would further its mission, the government threatened Fresh Vision’s officers with tens of thousands of dollars in fines and imprisonment if they did not register the group as a political action committee and disclose its donors and internal financial operations. Fresh Vision and its officers intend to raise community awareness about local hotel, neighborhood, retail, and other residential development projects; development projects supported by additional sales taxes; and expansion of the local arboretum into an event center. But they hold back their activism, because they fear prosecution from Defendants unless they reveal their private associations and submit to a range of intrusive measures for making a political statement.

Fresh Vision asserted that Kansas’ definition of “political action committee” is unconstitutional.  A Kansas federal district court agreed and declared KSA 25-4143(l)(1) unconstitutional as applied to Fresh Vision because Fresh Vision engages in lobbying and campaign endorsements as a major purpose but those political activities are not the major purpose.   The Court declined to strike down the statute on its face, holding that Fresh Vision lacked standing to bring a facial challenge. The holding means that Fresh Vision can continue its activities without disclosing the identity of its donors.   

I am perplexed by the whole thing.  The holding is based on the fact that the statute uses the indefinite article “a” as in “a major purpose,” rather than the definite article “the” as in “the major purpose.”  The First Amendment, according to Buckley v. Valeo, tolerates the definite but not the indefinite article.  A state can regulate political speech if it is “the major purpose but not if its just a major purpose.  I wanted to understand the substance behind the distinction, but Wikipedia says that Buckley v. Valeo is probably the longest Supreme Court opinion in history.  It’s a per curiam decision with five different opinions.  Like jurisprudential whores and harlots, the justices jump in and out of each other’s beds, concurring and dissenting with each other indiscriminately.  Even Geoffrey Chaucer would blush.  Anyway, I imagine it might take a week or so to prepare a flowchart to follow and tally the conclusions.  Maybe even longer to understand the analytical consensus.    

And according to the Court, Fresh Vision lacked standing to mount a facial challenge because it could not prove the statute is wholly incapable of constitutional application.  But that seems like a substantive conclusion that the statute is not unconstitutional on its face.  Ah well, I’ll let the constitutional people figure it all out. 

If you would like to get down in the weeds about it, a good place to start is at the Institute for Free Speech.  That exempt law firm represents Fresh Vision and has posted the entire court record here. 

darryll k. jones