Ky AG supports county-level Republicans in bid to spend on ‘school choice’ amendment

Kentucky Republican Attorney General Russell Coleman is once again weighing in on who can and cannot spend money to advocate for or against Amendment 2, which would allow state dollars to be spent on education outside of the public school system.

Earlier this month, Coleman said that public schools cannot expend any public resources advocating on an issue before voters, equating it to electioneering.

On Thursday, he filed an amicus brief arguing county-level Republican executive committees have a First Amendment right to spend money advocating for constitutional amendments on the ballot.

“It’s hard to conceive of any rational reason, much less a compelling one, for the government to slice and dice approved and unapproved political speech in this way,” the brief read. “Under the First Amendment, the government, on pain of fines or criminal prosecution, cannot tell political parties how to speak about the issues of the day.”

The Republican Party Executive Committees for Hardin and Jessamine county asked the election finance registry, which regulates and enforces Kentucky’s campaign finance laws, for an advisory opinion in June. They wanted to know if they were allowed to spend money on constitutional amendments on the ballot, specifically Amendment 2.

KREF’s answer was essentially, no. Leslie Saunders, a KREF attorney, wrote in the July advisory opinion that executive committees can spend funds to support party nominees — not constitutional amendments.

“To the extent that members of the executive committee would like to begin raising funds to support or oppose a constitutional amendment, those members interested must form a political issues committee to do so,” Saunders wrote.

That answer prompted a federal lawsuit, with Hardin, Jessamine and now also Boone counties’ executive committees arguing that the requirement they create a separate committee to spend money on ballot issues is too burdensome and violates their free speech rights. The district court sided with KREF and denied an injunction against them. Coleman filed his amicus brief on the appeal, arguing that the three parties should get their injunction against the state’s election finance registry.

Attorneys general are generally responsible for representing the state and its officials in legal battles, but Coleman instead decided to take the opposition’s side.

“From start to finish, Amendment 2 uniquely implicates Kentucky’s legislators and thus the political parties they represent,” the amicus brief read. “Separating speech about candidates and proposed amendments, as KREF’s opinion envisions, overlooks what Amendment 2 is all about.”

The U.S. District Court sided with KREF when it denied an injunction sought by the Republican county parties, saying that political speech is not free from government regulation, and that KREF likely didn’t cross any lines.

In the initial district court’s opinion, they found that the parties are “unlikely to be successful on the merits,” saying that KREF likely had legitimate reasons to treat executive committees differently from issues-based committees. For example, executive committee funds roll over, and can be used for any number of purposes. Issues-based committees are more limited — they can only be used to advocate on that very specific issue.

The district court decided that that makes sense, and that KREF made a reasonable argument for having different requirements.

“In sum, the alleged burdens on the Plaintiffs in this case can be chalked up to a disclosure requirement, and the Defendant has an interest in ensuring electoral finance transparency and integrity, as well as providing the electorate with disclosure information prior to an election,” the district court opinion reads.

Chris Weist, lawyers for the three county parties, escalated the case to the Sixth Circuit Court of Appeals, asking them to issue an injunction instead.

“These entities themselves have free speech rights,” Weist said. “It's no answer that you can go out and register a separate committee.”

State government and politics reporting is supported in part by the Corporation for Public Broadcasting.