BY: TIM CARPENTER
Kansas Reflector
TOPEKA — A federal judge granted an Overland Park nonprofit organization’s request for a temporary restraining order blocking the Kansas Governmental Ethics Commission from enforcing a campaign finance law until a trial on constitutionality of the state’s definition of a political action committee.
U.S. District Court Judge Daniel Crabtree issued the order Wednesday on behalf of Fresh Vision OP, which ran afoul of the state commission in 2021 after sending a mailer endorsing the candidacy of Faris Farassati, an Overland Park City Council member campaigning for mayor. Fresh Vision OP posted comparable information to its website. The organization also opposed use of “tax give aways,” incentives for economic development and tolling on U.S. 69.
Fresh Vision OP’s attorneys, including lawyers with the Institute for Free Speech, filed a lawsuit challenging the state’s definition of a PAC. The plaintiff’s attorneys argued the law could be interpreted to include groups such as Fresh Vision OP that were organized primarily for a neighborhood’s benefit, but also periodically endorsed candidates. The lawsuit was designed to protect free speech rights of Fresh Vision OP and organizations like it, plaintiffs said.
Crabtree’s temporary restraining order would allow Fresh Vision OP to resume community advocacy activities without being regulated at a PAC.
The judge said the state’s definition of a PAC would likely be found to violate the U.S. Supreme Court’s decision in Buckley v. Valeo, which said express advocacy had to be “the major purpose” of an organization to be regarded as a PAC. The order said the statute in question was written in a way that applied PAC requirements without first determining whether that organization’s express advocacy was “a singular major purpose” or the major purpose.
“After considering the statutory scheme and the parties’ arguments and submissions, the court grants a narrowed temporary restraining order,” Crabtree wrote in the order.
A court hearing on the plaintiffs’ request for a preliminary injunction and a trial on merits of the case has been scheduled for September.
“The court applied existing precedent that bars the imposition of burdensome political committee requirements on groups that only occasionally engage in express advocacy,” said Charles Miller, an attorney with Institute for Free Speech. “Those requirements chill and potentially punish protected political speech.”
Lawsuit plaintiffs James Muir and Chengny Thao, who served as officers of Fresh Vision OP, sought to have the federal court block the state Governmental Ethics Commission from enforcing laws and regulations that appeared to violate their First Amendment rights to speech.
They have contended Fresh Vision OP engaged in public activism and education to promote wholesome neighborhoods, local small business growth, public safety and responsible land development. In July 2021, the organization endorsed Farassati’s candidacy for mayor on its website and in a mailer.
The state ethics commission responded by notifying Fresh Vision OP that the endorsements equated to operation as a political action committee and required the organization to register in the state.
The letter advised Fresh Vision OP that it could face civil fines and criminal penalties for failing to comply with state campaign finance law. Fresh Vision OP suspended operations to avoid regulation as a political committee and disclosure of donors to the organization.