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1 Robert Timothy Reagan, Unconstitutional Proscription on Forming a Campaign Committee Shortly before an Election 1 (2018)

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CASE STUDIES IN EMERGENCY ELECTION LITIGATION


        Unconstitutional Proscription on Forming a
     Campaign Committee Shortly Before an Election
            Missourians  for  Fiscal Accountability  v. Klahr
              (Ortrie D.  Smith,  W.D.  Mo.  2:14-cv-4287)
       A district court's temporary restraining order blocked a proscription
       on forming a campaign committee fewer than 30 days before an elec-
       tion. After the election, the district judge determined that the case
       was not moot, but he later determined that it was not ripe. The court
       of appeals concluded that the case was ripe, and the district judge
       then issued a summary judgment that the proscription was uncon-
       stitutional. The court of appeals agreed, and the district judge
       awarded the plaintiff $158,055.80 in attorney fees and costs.
           Subject: Campaign activities. Topics: Campaign finance;
       attorney fees; recusal; ballot measure.
On  the Thursday before the November  4, 2014, general election, an organiza-
tion established on October 22 to promote a ballot proposition filed a federal
complaint in the Western  District of Missouri challenging a statute that for-
bade the formation  of a campaign committee  fewer than 30  days before an
election.' A little after 11:00 the following morning, the organization filed a
motion  for preliminary and permanent injunctions and a temporary restrain-
ing order.2
    On the case's second day, Judge Dean Whipple  recused himself,' and the
court reassigned the case to Judge Ortrie D. Smith.4 Judge Ortrie held a tele-
phonic hearing at 3:30 p.m. on Friday.' On Sunday, Judge Ortrie issued a tem-
porary restraining order against enforcement of the statute as an unconstitu-
tional restriction on speech.6 [T]he blackout period is not a disclosure re-
quirement. It does not require those collecting or expending funds to say an-
ything to anyone, much  less to the electorate. To the contrary, the blackout
period forbids communication  by preventing the committee from  expending
solicited funds.7



   1. Complaint, Missourians for Fiscal Accountability v. Klahr, No. 2:14-cv-4287 (W.D. Mo.
Oct. 30, 2014), D.E. 1; Missourians for Fiscal Accountability v. Klahr, 891 F.3d 944, 948 (8th
Cir. 2018); Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 792 (8th Cir. 2016);
see Mo. Rev. Stat. § 130.011(8).
   2. Motion, Missourians for Fiscal Accountability, No. 2:14-cv-4287 (W.D. Mo. Oct. 31,
2014), D.E. 5; Temporary Restraining Order Opinion at 2, id. (Nov. 2, 2014), E.E. 9, 2014 WL
5530996.
   3. Recusal Order, id. (Oct. 31, 2014), D.E. 4.
   4. Docket Sheet, id. (Oct. 30, 2014) (D.E. 6).
   5. Transcript, id. (Oct. 31, 2014, filed Nov. 17, 2014), D.E. 12; Temporary Restraining Or-
der Opinion, supra note 2, at 2.
   6. Temporary Restraining Order Opinion, supra note 2; Missourians for Fiscal Accounta-
bility, 892 F.3d at 948; Missourians for Fiscal Accountability, 830 F.3d at 792.
   7. Temporary Restraining Order Opinion, supra note 2, at 4.


Federal Judicial Center 7/10/2018


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