Ky AG backs county Republicans in bid to spend on “school choice” amendment.

Republican Kentucky Attorney General Russell Coleman is taking another look at who can and can’t spend money to support or oppose Amendment 2, which would allow state education dollars to be spent outside the public school system.

Earlier this month, Coleman said public schools cannot spend any kind of public resources to campaign on an issue before the voters, equating it with the electoral campaign.

On Thursday, he filed an amicus brief arguing that countywide Republican executive committees have a First Amendment right to spend money to support constitutional amendments on the ballot.

“It is hard to conceive of any rational reason, much less a compelling one, for the government to slice and dice approved and disapproved political speech in this way,” the brief said. “Under the First Amendment, the government cannot, under penalty of fines or prosecution, tell political parties how to talk about the issues of the day.”

The Hardin and Jessamine County Republican Party executive committees 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 that executive committees can spend funds to support party candidates — 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 interested members must form a policy committee to do so,” Saunders wrote.

The response prompted a federal lawsuit, with Hardin, Jessamine and now also the Boone counties’ executive committees arguing that the requirement to create a separate committee to spend money on ballot issues is too burdensome and violates their right to free speech. 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 obtain the 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 decided to take the opposition side instead.

“From start to finish, Amendment 2 uniquely implicates Kentucky legislators, and therefore the political parties they represent,” the amicus brief states. “Separating the discourse about the candidates and the proposed amendments, as the KREF opinion calls for, overlooks what Amendment 2 is all about.”

The U.S. District Court sided with KREF when it rejected an ordinance sought by the county’s Republican parties, saying that political speech is not free from government regulation and that KREF likely did not overstep any boundaries.

In the original district court’s opinion, they found that “the parties are unlikely to succeed on the merits,” saying that KREF likely had legitimate reasons to treat executive committees differently from issue-based committees. For example, executive committee funds are transferable and can be used for any number of purposes. Issue-based committees are more limited – they can only be used to support a very specific issue.

The district court ruled that this made sense and that KREF had made a reasonable case for having different requirements.

“In sum, the plaintiffs’ alleged burdens in this case can be attributed to a disclosure requirement, and the defendant has an interest in ensuring the transparency and integrity of election finances, as well as providing the electorate with pre-election disclosure information,” the opinion said the court.

Chris Weist, attorneys 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 not an answer that you can go out and register a separate committee.”

Reporting of state government and politics is supported in part by the Corporation for Public Broadcasting.