John Schickel, in his Personal and Official Capacities; David Watson, Plaintiffs-Appellees/Cross-Appellants,
Craig C. Dilger, in his Official Capacity as Chair and Member, Kentucky Registry of Election Finance; Rosemary F. Center; Terry Naydan; Reid Haire; Robert D. Mattingley; Chastity Ross; Thomas B. Stephens; John R. Steffen, Defendants-Appellees, Ken Moellman, Jr., Plaintiff-Appellee, George C. Troutman, in his Official Capacity as Chairman and Member of the Kentucky Legislative Ethics Commission; Elmer George; Pat Freibart; Tony Goetz; Ken Winters; Tom Jensen; Sheldon Baugh; Phil Huddleston; Anthony M. Wilhoit; H. John Schaff, Defendants-Appellants/Cross-Appellees.
Argued: October 18, 2018
from the United States District Court for the Eastern
District of Kentucky at Covington. No. 2:15-cv-00155-William
O. Bertelsman, District Judge.
G. Beshear, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,
Frankfort, Kentucky, for Appellants/Cross-Appellees.
Christopher D. Wiest, CHRIS WIEST, ATTORNEY AT LAW, LLC,
Cincinnati, Ohio, for Appellees/Cross-Appellants.
Dennis, KENTUCKY REGISTRY OF ELECTION FINANCE, Frankfort,
Kentucky, for Appellees.
James, La Tasha Buckner, OFFICE OF THE KENTUCKY ATTORNEY
GENERAL, Frankfort, Kentucky, for Appellants/Cross-Appellees.
B. Bruns, BRUNS, CONNELL, VOLLMAR & ARMSTRONG, LLC,
Cincinnati, Ohio, Robert A. Winter, Jr., FORT MITCHELL,
KENTUCKY, for Appellees/Cross-Appellants.
Dennis, KENTUCKY REGISTRY OF ELECTION FINANCE, Frankfort,
Kentucky, for Appellees.
Barbara B. Edelman, Haley Trogdlen McCauley, DINSMORE &
SHOHL LLP, Lexington, Kentucky, Tara Malloy, CAMPAIGN LEGAL
CENTER, Washington, D.C., for Amici Curiae.
Before: MERRITT, COOK, and LARSEN, Circuit Judges.
sitting state senator and one prospective candidate for
elected office in Kentucky challenged several state campaign
finance and ethics laws, claiming violations of their First
Amendment rights to free speech and association and
Fourteenth Amendment right to equal protection. Kentucky
argues that these measures, enacted to prevent corruption and
protect its citizens' trust in their elected officials,
comport with the Constitution. The district court, for the
most part, disagreed with the Commonwealth. We see it
Schickel, the incumbent state senator for the 11th Senatorial
District in Kentucky, and David Watson, who unsuccessfully
ran for the 6th House District in 2016, brought this suit
alleging that several of Kentucky's campaign finance and
ethics statutes violated their rights protected by the First
and Fourteenth Amendments. They sued several members of
Kentucky's Registry of Election Finance (KREF) and
Legislative Ethics Commission (KLEC), agencies charged with
enforcing the campaign finance and ethics laws.
appeal challenges the now defunct campaign finance provision
that restricted the amount a candidate may loan to his
campaign. Ky. Rev. Stat. Ann. § 121.150(13). As for the
ethics provisions, the legislators challenge seven of them.
Of the seven, three groups of two mirroring provisions-one
proscribing certain conduct by legislators and the corollary
version for lobbyists-impose:
(1) a contribution ban, §§
6.767(2) and 6.811(6), which prohibits a legislator,
candidate for the legislature, or his or her campaign
committee from accepting a campaign contribution from a
lobbyist, and a lobbyist from making the same;
(2) a regular session contribution ban,
§§ 6.767(3) and 6.811(7), which prohibits a
legislator, candidate for the legislature, or his or her
campaign committee from accepting a campaign contribution
from an employer of a lobbyist or a political committee (PAC)
during a regular session of the General Assembly, and an
employer of a lobbyist from making the same; and
(3)a gift ban, §§ 6.751(2) and
6.811(4), which prohibits a legislator or his spouse from
accepting "anything of value" from a lobbyist or
his employer, and a lobbyist or employer of a lobbyist from
knowingly offering the same to a legislator, candidate, or
final ethics provision applies only to lobbyists:
(4) a solicitation/treasurer ban, §
6.811(5), which prohibits a lobbyist from (i) serving as a
campaign treasurer, and (ii) directly soliciting,
controlling, or delivering a campaign contribution to a
legislator or candidate.
district court dismissed the campaign finance claim as moot
because a legislative amendment eliminated the provision. As
for the ethics provisions, the court found that the laws
burdened "core political speech" and curtailed
freedom of association, requiring strict scrutiny of every
ethics provision except the regular session contribution ban.
It ultimately upheld the regular session contribution ban,
but found all the other challenged ethics provisions
unconstitutional and unenforceable.
then moved this court for a stay pending appeal, which we
granted. The parties cross-appealed.
CAMPAIGN FINANCE PROVISION
begin with the self-funding restriction, repealed in 2017 by
the Kentucky legislature, which limited the amount a
candidate could personally loan his own campaign.
See § 121.150(13) (repealed 2017). Though this
court found the provision wholly unconstitutional in
Anderson v. Spear, 356 F.3d 651, 673 (6th Cir.
2004), Schickel and Watson nevertheless worry that KREF may
yet enforce the statute.
establish standing under Article III, a plaintiff must show,
among other things, an "injury in fact." Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In a
pre-enforcement challenge, such as here, a plaintiff
satisfies the injury-in-fact requirement by alleging "an
intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute,
and there exists a credible threat of prosecution
thereunder." Susan B. Anthony List v. Driehaus,
573 U.S. 149, 159 (2014) (quoting Babbitt v. United Farm
Workers Nat'l Union, 442 U.S. 289, 298 (1979)).
"A threat of future enforcement may be
'credible' when the same conduct has drawn
enforcement actions or threats of enforcement in the
past." Kiser v. Reitz, 765 F.3d 601, 609 (6th
the legislators have not shown a credible threat of
prosecution. KREF has not enforced this provision since
Anderson struck it down. Indeed, "if a statute
is unconstitutional on its face, the State may not enforce
the statute under any circumstances." Women's
Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193
(6th Cir. 1997). The legislators cite several alleged
enforcements, but all involve other provisions-§§
121.180 and 121.150(1), (6), (12), and (20)- not this one.
Cf. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1049
(6th Cir. 2015) (history of past enforcement against others
established injury in fact). Nor have the legislators shown
that KREF has any intention to enforce this provision. At its
30(b)(6) deposition, in its motion for summary judgment, and
during oral argument before this panel, KREF explicitly
disavowed enforcement against the legislators for any
violations of this provision. The legislators' case does
not resemble those it cites to support its position.
because there exists no credible threat of prosecution, the
legislators lack standing to challenge this provision. We
affirm the district court's dismissal of the claim on
addressing the merits, we consider whether the legislators
have standing to assert challenges to the four ethics
provisions governing only the conduct of lobbyists. If the
legislators cannot establish constitutional standing,
"their claims must be dismissed for lack of subject
matter jurisdiction." Loren v. Blue Cross & Blue
Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007).
Plaintiffs bear the burden of establishing standing, and they
must support each element "in the same way as any other
matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at
successive stages of the litigation." Fair Elections
Ohio v. Husted, 770 F.3d 456, 459 (6th Cir. 2014)
(quoting Lujan, 504 U.S. at 561). The legislators
may not rely on mere allegations, but "must set forth by
affidavit or other evidence specific facts" to show
standing. McKay v. Federspiel, 823 F.3d 862, 867
(6th Cir. 2016) (quoting Lujan, 504 U.S. at 561).
nature and extent of facts that must be averred . . . to
establish standing depends considerably upon whether the
plaintiff is himself an object of the action (or forgone
action) at issue." Lujan, 504 U.S. at 561. When
he is, "there is ordinarily little question" that
the plaintiff has standing. Id. at 561-62. But when
he is not-when his "asserted injury arises from the
government's allegedly unlawful regulation . . . of
someone else"-we require much more.
Id. at 562. In such circumstances, "causation
and redressability ordinarily hinge on the response of the
regulated (or regulable) third party to the government action
or inaction." Id.; ASARCO Inc. v.
Kadish, 490 U.S. 605, 615 (1989) (noting that
plaintiff's ability to satisfy the essential elements of
standing "depends on the unfettered choices made by
independent actors not before the courts and whose exercise
of broad and legitimate discretion the courts cannot presume
either to control or to predict"). The burden therefore
falls on the plaintiff to present facts showing that the
third party's "choices have been or will be made in
such manner as to produce causation and permit ...