Endorsing a mayoral candidate was not enough of a reason to label Fresh Vision OP, a neighborhood advocacy group, as a political action committee and require it to follow PAC financial disclosures, a federal judge has ruled.
U.S. District Court Judge Daniel Crabtree handed the Overland Park group a partial victory last week in its free speech challenge to the Kansas Campaign Finance Act and the state Governmental Ethics Commission with the ruling, which relates to its 2021 endorsement of Faris Farassati for mayor. The state was already under a temporary restraining order issued last July. Crabtree made that order permanent.
But the nonprofit, which formed in 2021, did not make a strong enough case to get Crabtree to rule aspects of the state campaign finance law unconstitutional, as the group had hoped. Therefore, his ruling only applies to Fresh Vision.
Lawyers for the group said they were heartened by the decision, but added that the Kansas law still needs some clarifications.
Ryan Kriegshauser, an Olathe attorney representing the group, said in an emailed response that while the order protects the group’s First Amendment rights, “the opinion makes clear that the legislature has work to do on these issues.”
Josh Ney, co-counsel at the same law firm, expanded on that. In 2023, a bi-partisan legislative panel unanimously determined several campaign finance laws to be vague and ambiguous, he wrote.
“Continued misapplication or misinterpretation of vague statutes by this agency has caused a multi-year lack of confidence that laws will be fairly applied,” Ney wrote. He said the successful challenges show that “the legislature and commission need to provide leadership in establishing clear laws and fair applications of those laws.”
The group was also represented by lawyers for the Washington, D.C.-based Institute for Free Speech.
Mark Skoglund, executive director of the state ethics commission and a defendant in the suit, has not responded to a request for comment.
‘A bunch of neighbors’ with common interests
Fresh Vision officers had told regulators at an ethics commission hearing in 2022 that they considered themselves “a bunch of neighbors” with common interests in quality of life and the big issues of Overland Park. For instance, the group has taken an interest in express toll lanes on U.S. Highway 69, a proposed amphitheater at the city’s arboretum, high-density apartment development and taxes.
The group became a registered nonprofit in February of 2021. The court case stems from its decision later that year to promote Farassati’s candidacy with its endorsement and mailed materials.
Skoglund sought to categorize the group as a political committee because endorsement was a major purpose of the group. The group later suspended its operations rather than submit to the additional reporting requirements of a PAC.
Group members argued at their hearing that they were a far cry from PACs created to raise tens of thousands of dollars for candidates. Their major purpose was to inform members, who often met at an officer’s house, about the issues and encourage involvement. The Farassati endorsement was an outgrowth of that.
“This is a case about balance—the balance between a citizen’s right to free speech and a state government’s interest in campaign finance regulation,” Crabtree wrote in his decision.
Judge’s ruling based on federal precedent
His decision on Fresh Vision’s status came down to conflicting definitions between state law and federal case law.
State law says a group is a political committee if promoting candidates is “a” major purpose. But federal court precedent says it has to be “the” major purpose. Crabtree ruled that, for Fresh Vision, support for a candidate was a major purpose but not the major purpose, and the federal precedent won out.
Fresh Vision also challenged the constitutionality of part of the campaign finance law that requires a disclosure statement when a person other than a political committee spends $100 or more to endorse a candidate.
But a “facial” challenge — meaning the statute is unconstitutional on its face and should be declared void — is “a much steeper hill for plaintiffs to climb,” Crabtree wrote.
To meet it for a First Amendment case, plaintiffs have to prove that there are more unconstitutional applications of the statute than lawful ones, he wrote. Additionally, the unconstitutional applications have to be “realistic and not fanciful,” according to federal case law, he wrote.
Fresh Vision said the law had a chilling effect on free speech. But Crabtree said its arguments were too speculative when it comes to the effect the law could have on other organizations.
He also ruled the organization lacked standing to sue because the $100 threshold did not automatically place it into the political committee category. The group could not show credible fear of enforcement of the one-page disclosure form requirement because the ethics commission has no record of enforcing the rule to the fullest in the past, the ruling said.
