MEMORANDUM AND ORDER
ROGERS, District Judge.
This case is now before the court upon plaintiff's motion for preliminary injunction, defendant's motion to dismiss and plaintiff's motion to combine the hearing upon the preliminary injunction motion with the trial on the merits.
Plaintiff is a nonprofit Kansas corporation exempt from federal income tax. It promotes "pro-life" issues and attempts to educate the general public regarding such issues from a "pro-life" perspective. It is not associated with any political candidate or political party. Defendants are officers of the Kansas Governmental Ethics Commission. The Commission is charged with enforcing certain provisions of the Kansas Campaign Finance Act, K.S.A. 25-4142 et seq. The enforcement policy of the Commission is being challenged by plaintiff in this lawsuit. The defendants are being sued in their official capacities.
In July 1998, during the primary campaign to determine the Republican Party's candidate for Governor of Kansas, plaintiff ran a radio advertisement. The ad read as follows:
The ad cost $750.00 which was covered in part from the general operating funds of plaintiff and from an in-kind contribution to it from a private individual. The Commission received an anonymous complaint that the ad should have been paid for by plaintiff's political action committee under the Kansas Campaign Finance Act because the ad expressly advocated the election or defeat of a clearly identified candidate. A staff member of the Commission informed plaintiff of the complaint and suggested that plaintiff seek an advisory opinion from the Commission on this matter. Plaintiff followed this advice. Consequently, the Commission reviewed the July ad and concluded in Advisory Opinion 1998-22 that the July advertisement constituted express advocacy of the election or defeat of a candidate and, therefore, was subject to the disclosure requirements of the Kansas Campaign Finance Act.
On November 4, 1998, plaintiff filed this case and asked for a temporary restraining order against the application of the Kansas Campaign Finance Act, as construed by the advisory opinion, against the July ad and future "issue advocacy" political advertisements by plaintiff. On November 6, 1998, the Commission mailed a notice of failure to file a receipts and expenditures report required by the Kansas Campaign Finance Act. The notice stated:
As stated, the notice gave plaintiff five days to file the report. The report lists who made an expenditure on behalf of a political candidate. In this instance, the report required the disclosure of what individual and organization paid for the July 1998 radio ad. On November 10, 1998, the court conducted a hearing upon plaintiff's motion for a temporary restraining order. The focus of the TRO hearing was the deadline for filing the receipts and expenditures report. Ultimately, however, the court did not rule upon the motion and allowed defendants additional time to respond to it. On November 12, 1998, plaintiff filed the receipts and expenditures report. A few days later an amended report was filed.
If the report had not been filed, then a staff member of defendant would have filed a complaint. The Commission would have reviewed the complaint for sufficiency. There would have been an investigation and a determination of probable cause and then a public hearing. The Commission would have made findings which may have led to a fine or even criminal prosecution by the Attorney General.
Plaintiff's filing of the report arguably eliminated some of the urgency for injunctive relief. But, the time for Wichita city elections is approaching. Plaintiff intends to run political advertisements for that election. Now, plaintiff argues that injunctive relief is necessary in this case to prevent its rights from being violated both as to the July 1998 advertisement (because the report is still on file and open to the public) and as to future advertisements. Defendants have filed a motion to dismiss.
OPERATION OF THE STATUTE
The Kansas Campaign Finance Act requires a receipts and expenditures report by persons other than a candidate or candidate committee, or party or political
The statute further provides at 25-4143(h) that "expressly advocate" means:
THE ADVISORY OPINION
The July ad contained none of the "buzz" words specified in the statute as express advocacy. But, the advisory opinion from the Commission (Advisory Opinion 1998-22) found that it constituted express advocacy which triggered the reporting requirement because if read "on the whole" by an ordinary person it would lead that person to believe he or she was being urged to vote for a particular candidate. Specifically, the advisory opinion applied the following definition of express advocacy to the July ad:
The complaint in this case has two claims. The first claim ("Count One") involves relief directed toward the July advertisement. The second claim ("Count Two") involves relief directed toward future advertisements.
Plaintiff asks that the court issue a declaratory judgment that the July ad was "issue advocacy" protected under the First Amendment from regulation; that the enforcement policy enunciated in Advisory Opinion 1998-22 be declared unconstitutional; that the Commission expunge the report filed by plaintiff regarding the July ad; and that defendants be enjoined from enforcing the alleged unconstitutional policy stated in the advisory opinion against future advertisements.
Defendants' motion to dismiss contends: 1) that there is no case and controversy because plaintiff's filing of the report has made any controversy regarding the July 1998 ad moot; 2) that there is no case and controversy regarding future political ads because any issue regarding those ads is not ripe for decision; and 3) that the court should abstain from deciding plaintiff's claims in this matter. Defendants also contend that the July ad is not issue advocacy and that the enforcement policy stated in Advisory Opinion 1998-22 is constitutional.
Consolidation of hearing with trial on the merits
Plaintiff moved to consolidate the trial on the merits in this case with the hearing upon the preliminary injunction motion. Defense counsel at first opposed this idea. However, when the issue was raised again at the close of the hearing upon the instant motions, defense counsel appeared to approve consolidation. The court believes consolidation would be logical and efficient. Therefore, the court shall grant the motion for consolidation and consider this order to be the final order on the merits in this case.
Defendants assert that there is no case and controversy regarding Count One of plaintiff's complaint (the July ad) because: plaintiff filed the report; any information contained in the report is now a matter of public record; and no further proceedings will be taken against plaintiff with regard to the July ad. Defendants make reference to Cox v. Phelps Dodge Corp., 43 F.3d 1345 (10th Cir.1994). There, the Tenth Circuit stated:
43 F.3d at 1348.
The court believes a legal interest is still at stake with regard to Count One and the July ad. Plaintiff has asked for expungement of the report which is on file with the public. Case law recognizes that a legal request for expungement may create a sufficient controversy to avoid dismissal for alleged mootness. See Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir.1996) (request for expungement of misconduct references from prison records is not made moot by prisoner's parole); Paton v. LaPrade, 524 F.2d 862, 868 (3rd Cir.1975) (plaintiff may ask for expungement of information gathered by FBI in violation of plaintiff's First Amendment rights, although file and investigation are closed); Black v. Warden, 467 F.2d 202, 204 (10th Cir.1972) (case may not be dismissed as moot until plaintiff's disciplinary records are expunged).
Case law also states that the mootness doctrine is not applied strictly to First Amendment cases, particularly when it is difficult to fully consider a promptly-filed case prior to the event (such as an election) which arguably renders the case moot and when the issue is capable of repetition. See New Hampshire Right to Life v. Gardner, 99 F.3d 8, 18 (1st Cir. 1996). In this instance, the letter from the Commission which ordered plaintiff to file the report at issue gave plaintiff five days to do so. That is not much time to litigate whether the order is legal prior to the Commission filing a complaint which could lead to a civil fine or criminal penalty. Furthermore, it is evident that this is an issue which is capable of repetition.
To summarize, the court finds that plaintiff has asserted a real and substantial controversy with regard to Count One. Plaintiff contends that it was unconstitutionally forced to file a report revealing the source of money for issue advocacy protected from regulation by the First Amendment and that the information continues on file for public inspection. Plaintiff further alleges an interest in withholding the information and expunging the report. Accordingly, we reject defendants' mootness argument.
Defendants contend that any claim regarding future ads is not ripe for decision because there is no indication: that plaintiff will do ads; that the ads will be considered express advocacy; or that defendant will direct that a receipt and expenditures report be filed with regard to the ads. In other words, defendants insist that any issue regarding future ads (Count II of this case) is anchored on future events that may not happen and therefore is not ripe for decision.
The Tenth Circuit discussed the standards relating to ripeness in a First Amendment case in New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499-1500 (10th Cir.1995):
In this case, defendants have not disavowed the policy enunciated in Advisory Opinion 1998-22. Quite the contrary, defense counsel have affirmed that the advisory opinion represents the defendants' official enforcement policy. Furthermore, in contrast to Wisconsin Right to Life v.
Defendants assert that this court should abstain from exercising jurisdiction in this case. The Supreme Court has stated that "Abstention is ... the exception and not the rule, and we are particularly reluctant to abstain in cases involving facial challenges based on the First Amendment." Houston v. Hill, 482 U.S. 451, 467, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). This case is not a facial challenge to a statute; it's a challenge to how a statute has been applied in the past and may be applied in the future. Nevertheless, we take some instruction from these comments.
At the hearing upon plaintiff's application for a temporary restraining order, the court suggested that Younger abstention deserved consideration in this case. But, at that time, there was arguably a state administrative enforcement proceeding being initiated against plaintiff. The court may have interfered with it if an injunction had issued. There is no such administrative proceeding at the present time. Therefore, Younger abstention is not an issue. See Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (ongoing state proceedings are a necessary premise for Younger abstention).
Nor will this court apply the Burford and Pullman abstention doctrines to these facts.
Lehman v. City of Louisville, 967 F.2d 1474, 1478 (10th Cir.1992). This case does not involve state law issues which are connected to complicated state regulatory schemes. It presents a straightforward First Amendment question. Therefore, Burford abstention is not appropriate. Pullman abstention is a closer question. However, in this case where plaintiff is exercising its right to bring a claim under 42 U.S.C. § 1983 in federal court and the delay from abstention would perpetuate the alleged chilling effect on First Amendment rights, the court does not believe Pullman abstention should be invoked. See Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87, 93-94 (2nd Cir.1998); Clajon Production Corp. v. Petera, 70 F.3d 1566, 1576 (10th Cir.1995).
For these reasons, the court rejects abstention.
Plaintiff asserts that the requirement to file the receipts and expenditures report disclosing the source of money for the July advertisement violated the right
The right of association is connected to the right of speech protected by the First Amendment. Buckley, 424 U.S. at 75, 96 S.Ct. 612. In Buckley, where the Supreme Court reviewed the constitutionality of a federal campaign finance statute which required the disclosure of contributors under certain circumstances, the Court stated:
424 U.S. at 64-66, 96 S.Ct. 612. The Court acknowledged that disclosure requirements served legitimate governmental interests in informing the public of the source of financial support for political discourse, deterring corruption and maintaining records necessary to detect violations of contribution limits. 424 U.S. at 67-68, 96 S.Ct. 612. But, the Court further found that disclosure "will deter some individuals who otherwise might contribute" and "in some instances ... may even expose contributors to harassment or retaliation." 424 U.S. at 68, 96 S.Ct. 612. Finding that "[t]hese are not insignificant burdens of individual rights," the Court narrowly limited the type of expression subject to disclosure requirements. Hence, the disclosure requirements were limited to funds paid "for communications that expressly advocate the election or defeat of a clearly identified candidate." 424 U.S. at 80, 96 S.Ct. 612. The Court listed examples of such "express advocacy" as communications using words "such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject.'" 424 U.S. at 44 n. 52, 96 S.Ct. 612.
Ten years after Buckley, in Federal Election Commission v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) ("MCFL"), the Court generally reaffirmed Buckley. The Court made clear that Buckley contemplated that not only a discussion of issues but also a discussion of candidates could qualify as "issue advocacy"; the line was drawn at "more pointed exhortations to vote for particular persons."
To reiterate, the July ad at issue in this case contains none of the "buzz" words or phrases which the Supreme Court or the Kansas Legislature have listed as trademarks of "express advocacy." It does not expressly exhort the listener to vote for, elect or support one candidate or another. A reasonable and ordinary person would imply from the ad that plaintiff favors one candidate over the other. But, the ad does not expressly advocate the election or defeat of a candidate or direct the public to take action for or against an identified candidate. The ad contrasts the positions of two candidates on the issue of abortion and asserts that one candidate is honestly stating his position on the issue while the other candidate is not. Thus, the ad discusses an issue while disparaging one candidate and commending his opponent. However, the question of whether a candidate's ads are truthful and whether a candidate is candidly stating his positions during a campaign are very common "issues" in an election season. Those issues are the subjects of the message. Because the ad addresses those issues without expressly advocating the election or defeat of a candidate, the court finds that it was unconstitutional for defendants to regulate this speech by directing that a report be filed which discloses who paid for the communication.
As discussed earlier, the court does not believe this matter is moot. Maintaining the report on file perpetuates the potentially chilling disclosure which the Court in Buckley found can infringe on the privacy of association and belief guaranteed by the First Amendment. 424 U.S. at 64, 96 S.Ct. 612. The court is aware of no government interest which in this instance would justify maintaining the disclosure of information collected in violation of the First Amendment. Accordingly, the court shall direct defendants to ask the Kansas Secretary of State to expunge the report filed by plaintiff from the public records. See Doe v. U.S. Air Force, 812 F.2d 738, 741 (D.C.Cir.1987) (federal court has power to order expungement where necessary to vindicate Constitutional rights even if files are closed and scheduled for destruction).
In Count Two of the complaint, plaintiff asks for an injunction against application of the enforcement policy stated in Advisory Opinion 1998-22 and a declaration that the policy is unconstitutional. The court shall grant the requested relief.
Counsel for defendants have acknowledged that Advisory Opinion 1998-22 represents the official enforcement policy of the Commission. To repeat, "express advocacy" is defined in the Advisory Opinion as:
Under this standard, if reasonable people could disagree whether the communication urges a vote for or against a particular candidate, then the message is subject to the regulatory disclosure requirements applicable to express advocacy. This is contrary to the Buckley Court's constitutionally mandated narrow, unambiguous and explicit definition of the term for the purposes of the federal campaign finance statute. It is also contrary to how Buckley has been construed by other courts and the Federal Election Commission (FEC).
One approach to defining "express advocacy" has focused on use of the "buzz" words or "magic" words listed in the Buckley opinion. E.g., Faucher v. Federal Election Commission, 928 F.2d 468, 470 (1st Cir.) cert. denied, 502 U.S. 820, 112 S.Ct. 79, 116 L.Ed.2d 52 (1991). Another arguably broader definition was employed by the Ninth Circuit in Federal Election Commission v. Furgatch, 807 F.2d 857, 864 (9th Cir.) cert. denied, 484 U.S. 850, 108 S.Ct. 151, 98 L.Ed.2d 106 (1987). There, the court permitted consideration of contextual factors:
To the Ninth Circuit this meant that: the language had to be "unmistakable and unambiguous, suggestive of only one plausible meaning"; it must present a "clear plea for action"; and "it must be clear what action is advocated." Id. The regulations of the FEC attempt to follow the Ninth Circuit approach. 11 C.F.R. § 100.22. However, these regulations have been attacked successfully in other circuits as unconstitutionally vague. Right to Life of Dutchess County, Inc. v. Federal Election Commission, 6 F.Supp.2d 248 (S.D.N.Y.1998); Maine Right to Life Committee, Inc. v. Federal Election Commission, 914 F.Supp. 8 (D.Maine) aff'd per curiam, 98 F.3d 1 (1st Cir.1996) cert. denied, ___ U.S. ___, 118 S.Ct. 52, 139 L.Ed.2d 17 (1997); Federal Election Commission v. Christian Action Network, 894 F.Supp. 946 (W.D.Va.1995), aff'd per curiam, 92 F.3d 1178, 1996 WL 431996 (4th Cir.1996).
The enforcement policy described in the advisory opinion at issue does not conform with any of the approaches described above. It does not restrict regulation to advertisements which use certain "buzz" words. Nor does it restrict regulation to advertisements which can only be reasonably interpreted as advocating the election or defeat of a candidate; which contain a clear plea to action; and which are unmistakable and unambiguous.
In summary, plaintiff has established a realistic danger that defendants will apply an unconstitutionally vague and overbroad enforcement policy against issue advocacy by plaintiff that is protected by the First Amendment. Therefore, the court shall enjoin defendants from applying that enforcement policy against plaintiff in the future and declare that the policy is unconstitutional.
In order for the court to grant a permanent injunction, plaintiff must satisfy the standards for a preliminary injunction, except for a permanent injunction plaintiff must show actual success on the merits. Amoco Prod. Co. v. Village of Gambell,
Plaintiff's motion for consolidation of the hearing on the motion for a preliminary injunction and the trial on the merits is granted. Defendants' motion to dismiss is denied. The court hereby declares that plaintiff's July 1998 radio advertisement constituted issue advocacy protected from regulation by the State of Kansas under the First and Fourteenth Amendments to the Constitution. The court hereby directs defendants to request that the receipts and expenditures reports filed by plaintiff at defendants' behest with regard to the July 1998 radio advertisement be expunged from the public records of the Secretary of State. The court further declares that the enforcement policy based upon the definition of express advocacy contained in defendants' Advisory Opinion 1998-22 is unconstitutionally vague and enjoins defendants from applying that policy against plaintiff in the future.