Why 'a' versus 'the' makes big difference in court for Kansas campaign finance law

The difference between "a" and "the" likely makes a Kansas campaign finance law unconstitutional, a federal judge said, and state ethics officials are worried about what it could mean.

U.S. District Judge Daniel Crabtree last week granted a temporary restraining order against a Kansas campaign finance law defining political committees. A pending motion for a preliminary injunction is set for a Sept. 17 hearing.

The order blocks the Kansas Governmental Ethics Commission from requiring Fresh Vision OP to file as a political committee based on express political advocacy being "a major purpose" instead of "the major purpose."

Overland Park organization doesn't want to disclose donors

Fresh Vision is an organization in Johnson County that advocates for an improved quality of life in Overland Park. In addition to other activities, Fresh Vision expressly advocated for the election of a mayoral candidate in 2021. That led to a long-running conflict with the ethics commission, which has sought to make Fresh Vision register as a political committee — which would in turn require disclosure of donations and expenditures.

Fresh Vision's attorneys, Ryan Kriegshauser and Joshua Ney, wrote that the organization wants to continue its activities, including express political advocacy, "but will only do so if its donors can remain anonymous." They said express advocacy "is not, and never will be, Fresh Vision's major purpose."

'A' versus 'the' makes a difference

Kansas defines a political committee to include when express advocacy for or against a political candidate is "a major purpose" of the organization.

The conflict comes from the U.S. Supreme Court's 1976 Buckley decision that limited the federal definition of political committee to include organizations where express advocacy is "the major purpose." Appellate courts have since been divided at times, but the 10th U.S. Circuit Court of Appeals has signaled that the major purpose test applies to state regulation of political committees.

Crabtree wrote that the Supreme Court's decision and 10th Circuit precedent mean the Kansas definition "is likely unconstitutionally overbroad." He said Fresh Vision faced irreparable injury from "a chilling effect to their First Amendment speech and association rights."

Ethics commission sends warning

The ethics commission suggested emphasizing the semantical distinction between "a" and "the" instead of focusing on "major" could lead to "perverse results." A small group dedicated entirely to supporting a candidate that spent a few thousand dollars would have to register as a political committee.

Meanwhile, a large organization spending more than $1 million to defeat that same candidate would not have to register as a political committee as long as it spends even more on non-campaign activities.

"This is nonsensical and would greatly diminish the government’s unequivocal interests in facilitating and regulating disclosures," wrote Bradley Schlozman and Garrett Roe, attorneys representing the ethics commission. "Plaintiffs' theory would likewise allow groups whose only major purpose truly is to engage in express advocacy to circumvent disclosure. For example, an entity whose sole purpose is to get a candidate elected could bypass disclosure obligations merely by spending additional funds on non-electioneering activities or merging with a different organization."

They warned that blocking enforcement of state law could mean "Kansas and its citizenry would be deprived of important campaign finance disclosures."

Jason Alatidd is a Statehouse reporter for The Topeka Capital-Journal. He can be reached by email at jalatidd@gannett.com. Follow him on X @Jason_Alatidd .

This article originally appeared on Topeka Capital-Journal: Why 'a' versus 'the' makes big difference in court for Kansas campaign finance law