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Free and Fair Election Fund v. Missouri Ethics Commission

United States District Court, W.D. Missouri, Central Division

May 5, 2017

FREE AND FAIR ELECTION FUND, et al., Plaintiffs,
v.
MISSOURI ETHICS COMMISSION, et al., Defendants. MISSOURI ELECTRIC COOPERATIVES, d/b/a Association of Missouri Electric Cooperatives, et al., Plaintiffs,
v.
STATE OF MISSOURI, et al., Defendants.

          ORDER AND OPINION (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS, AND (2) PARTIALLY GRANTING PLAINTIFFS' MOTIONS FOR PERMANENT INJUNCTION

          ORTRIE D. SMITH, SENIOR JUDGE

         On November 8, 2016, seventy percent of Missouri voters approved Initiative Petition 2016-007, thereby amending, effective December 8, 2016, Article VIII of the Missouri Constitution to add Section 23.[1] Plaintiffs seek permanent injunctive relief preventing enforcement of several provisions of Section 23. Defendants seek dismissal of Plaintiffs' claims. As detailed below, the Court grants in part and denies in part Defendants' motions to dismiss, partially grants Plaintiffs' motions, and enjoins Defendants' enforcement of Section 23 in a manner inconsistent with this Order.

         I. BACKGROUND

         Section 23 imposes campaign finance regulations and restrictions on individuals and entities in Missouri. Section 23's regulations and restrictions can be divided into three types: (1) monetary limits on contributions, (2) restrictions on the sources of some contributions, and (3) measures to prevent evasion of Section 23's regulations and restrictions.

         Under Section 23's monetary limit on contributions, no individual may contribute more than $2, 600 “[t]o elect an individual to the office of governor, lieutenant governor, secretary of state, state treasurer, state auditor, attorney general, office of state senator, office of state representative or any other state or judicial office....” Mo. Const., art. VIII, § 23.3(1)(a). A political party may not accept contributions, in aggregate, greater than $25, 000 from an individual or political committee during any one election in which a political party participates. § 23.3(2)(a)-(b).

         Section 23 imposes restrictions on contribution sources by dividing political candidates and committees into several overlapping categories, which are used to place restrictions on the sources from which these groups may receive contributions.2 First, corporations and unions may not contribute to a campaign committee, candidate committee, exploratory committee, political party committee, or a political party, but may establish a “continuing committee” to which its members, officers, directors, employees, and security holders may contribute. § 23.3(3)(a). Second, corporations may only contribute to a political action committee (“PAC”) if the corporation is formed under chapters 347 through 360 of the Missouri Revised Statutes.[3] § 23.3(12). Third, a foreign corporation, one not organized under Missouri law, may not contribute to a PAC unless it is authorized to do business in Missouri pursuant to chapter 347. § 23.3(16)(c). Fourth, a PAC may not accept contributions from other PACs, candidate committees, political party committees, campaign committees, exploratory committees, or debt service committees. § 23.3(12). Fifth, candidate committees are prohibited from contributing to another candidate committee. § 23.3(4). Sixth, and finally, all candidates and committees are prohibited from receiving contributions from any out-of-state committee unless the out-of-state committee organizes within the State of Missouri or files Missouri-required disclosure reports. § 23.3(11).[4]

         Section 23 also includes measures to prevent evasion of the new regulations and restrictions. Section 23 prohibits: (1) any person from contributing under a fictitious or borrowed name (§ 23.3(7)); (2) any person from contributing anonymously in amounts greater than $25 (§ 23.3(8)); (3) any committee from receiving more than $500 in anonymous contributions (§ 23.3(9)), with a narrow exception for certain well-documented group events (§ 23.3(10)); and (4) any committee or political party from accepting a cash contribution over $100 per election (§ 23.3(6)). Section 23 broadly forbids transferring “anything of value to any committee with the intent to conceal...the identity of the actual source.” § 23.3(14). Further, Section 23 prohibits anyone from being reimbursed for contributions (§ 23.3(15)), and requires contributions from children under fourteen years old be deemed contributions from the child's parents or guardians (and thus, subject to their parents' or guardians' contribution limits). § 23.3(17).

         Defendant Missouri Ethics Commission (“MEC”) is charged with enforcing Section 23. Anyone who violates Section 23 may face civil and criminal penalties. §§ 23.3(14), 23.4(1)-(6); 23.5; 23.6; see also Mo. Rev. Stat. §§ 105.955-.977 (2017). Any person may file a complaint, and local county prosecutors may also bring charges for a violation of Section 23. Doc. #75. Finally, and relevant here, Section 23 includes a severability provision that provides, “[i]f any provision of this section is found by a court of competent jurisdiction to be unconstitutional or unconstitutionally enacted, the remaining provisions of this section shall be and remain valid.” § 23.8.

         Following Section 23's enactment, the MEC received questions from interested parties seeking to clarify what conduct Section 23 did or did not prohibit. On January 6, 2017, the MEC approved a resolution in which it acknowledged “interest of the regulated community in receiving interpretation” of many questions regarding Section 23, but the MEC declined “to issue the opinions on this date due to pending litigation but will consider the issuance on these questions on a future date.” Doc. #35-1, at 6. On February 10, 2017, the MEC issued several advisory opinions interpreting provisions of Section 23. The Court will discuss applicable advisory opinions in detail below.

         On December 7, 2016, Plaintiffs Association of Missouri Electric Cooperatives (“AMEC”), Association of Missouri Electric Cooperatives PAC (“AMEC-PAC”), David Klindt (“Klindt”), and Legends Bank (collectively “AMEC Plaintiffs”) brought suit in the United States District Court for the Eastern District of Missouri against the State of Missouri, the MEC, and the MEC's Commissioners in their official capacities. Case No. 17-4006, Doc. #1.[5] AMEC is an association of nonprofit, member-owned rural electric cooperative corporations. AMEC's members are organized under chapter 394, related to rural electric cooperatives, rather than chapters 347 through 360. AMEC alleges Section 23 prevents it and their member organizations from contributing to AMEC-PAC and various other entities. Klindt is AMEC's Vice President.[6]

         AMEC-PAC is a PAC formed and maintained by AMEC. AMEC-PAC alleges Section 23 unconstitutionally prohibits it from accepting contributions from its member organizations, both foreign and domestic. Legends Bank is a Missouri chartered bank organized under chapter 362. Legends Bank made contributions to PACs in the past, but alleges Section 23 now prohibits future contributions.

         The MEC is a state agency acting under Missouri's executive branch. The MEC investigates and enforces Missouri's campaign finance laws, and is composed of six members appointed by the Governor with the Missouri Senate's advice and consent. Each member is a Missouri citizen and resident, and serves a four-year term. Currently, the commission members are Chair Nancy Hagan, and Vice Chairs Bill Deeken, Eric L. Dirks, Don Summers, Kim Benjamin, and George Ratermann.

         AMEC Plaintiffs allege Section 23's prohibitions on contributions violate their First Amendment rights to free speech and assembly, their Fourteenth Amendment equal protection rights, and their rights under Article 1, Section 8 of the Missouri Constitution. AMEC Plaintiffs ask the Court to enjoin Defendants, their agents, or anyone acting on their behalf or in concert with them from enforcing Sections 23.3(12) and (16)(c).

         On December 23, 2017, Plaintiffs Free and Fair Election Fund (“FFEF”), Missourians for Worker Freedom (“Worker Freedom”), American Democracy Alliance (“ADA”), John Elliott (“Elliott”), Herzog Services, Inc. (“HSI”), and Farmers State Bank (“Farmers”) (collectively “FFEF Plaintiffs”) brought suit in this Court against the MEC, its commissioners in their official capacities, and James Klahr in his official capacity as Executive Director of the MEC.[7] Case No. 16-4332, Doc. #1. FFEF is a Missouri PAC and continuing committee. FFEF's purpose is to receive monetary contributions and make independent expenditures to influence voters. Worker Freedom is a Missouri campaign committee. ADA is a Missouri not-for-profit corporation organized under chapter 355, with its principal place of business in Jackson County, Missouri. Elliott is a Missouri citizen and taxpayer. HSI is a for-profit corporation organized under Kansas law, but its principal place of business is in Missouri and it has authority to transact business in Missouri. Farmers is a Missouri chartered bank organized under chapter 362, and is a Missouri citizen and taxpayer, with its principal place of business in Missouri. Collectively, FFEF Plaintiffs challenge Section 23's $2, 600 cap on contributions to candidates, and challenge the same source prohibitions challenged by AMEC Plaintiffs.[8]

         Although AMEC Plaintiffs brought suit in the United States District Court for the Eastern District of Missouri, Judge Catherine Perry ordered the case transferred to the Central Division of this Court. Case No. 17-4006, Doc. #45. The Court then consolidated the AMEC matter with FFEF's challenge, and set a hearing on Plaintiffs' motions for preliminary injunction.[9] Doc. #25. Defendants filed two motions to dismiss, and the Court expedited the briefing so that all motions were fully briefed prior to the hearing. Docs. #28, 30, 32. Defendants' motions to dismiss were subsequently converted to motions for judgment on the pleadings.[10] Doc. #41. Finally, pursuant to Federal Rule of Civil Procedure 65(a)(2), the Court converted the hearing on Plaintiffs' motions for preliminary injunction to a hearing on Plaintiffs' requests for permanent injunction. Doc. #63.

         On March 3, 2017, the Court held a hearing. All parties were expertly represented by counsel. During the hearing, the Court found several areas of agreement among the parties, and encouraged the parties to continue their dialogue regarding potential resolution of this matter. Although the parties were unable to resolve all claims, the parties reached agreement on two aspects. First, Defendants and the AMEC Plaintiffs stipulated to the dismissal of AMEC's Count V, which alleged Section 23's enactment violated the Missouri Constitution. Doc. #81. Accordingly, the Court dismissed Count V of AMEC's Amended Complaint. Doc. #87. Second, the parties agreed to a proposed consent judgment regarding the constitutionality and enforcement of Section 23's ban on corporate and union contributions to a ballot measure committee. Doc. #79. As detailed infra, section II.B. (3)(a), the Court incorporates this proposed consent judgment, and will enjoin enforcement of Section 23's ban on corporate and union contributions to a ballot measure committee.

         II. DISCUSSION

         The issues before the Court are numerous. First, the Court considers Defendants' motions to dismiss. Second, the Court considers Plaintiffs' motions for permanent injunctive relief.

         A. Motions to Dismiss

         Defendants filed two motions to dismiss. First, Defendants move to dismiss the State of Missouri and all state-law claims presented in AMEC Plaintiffs' Amended Complaint. Doc. #28. Second, Defendants move to dismiss the operative complaints in both matters in their entirety. Doc. #30. The Court grants Defendants' first motion (Doc. #28), and denies Defendants' second motion (Doc. #30).

         (1) First Motion to Dismiss

         Defendants seek to dismiss the State of Missouri and all state-law claims brought by AMEC Plaintiffs. “The Eleventh Amendment immunizes an unconsenting State from damage actions brought in federal court, except when Congress has abrogated that immunity for a particular federal cause of action.” Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 908 (8th Cir. 1999); see generally Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (“[F]or over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.”). Three exceptions to Eleventh Amendment immunity exist: (1) where the state waives immunity by consenting to suit in federal court, (2) where Congress abrogates the state's immunity through valid exercise of its powers, and (3) under Ex parte Young, 209 U.S. 123 (1908), where the plaintiff files suit against state officials seeking prospective equitable relief for ongoing violations of federal law. Sundquist v. Neb., 122 F.Supp.3d 876, 876 (D. Neb. 2015).

         AMEC Plaintiffs argue the State of Missouri is not immune from suit for declaratory judgment actions under state law, and maintain the state waived immunity by appearing in this matter. The Court rejects these arguments. AMEC Plaintiffs point to case law in which actions seeking a declaration that Missouri laws are unconstitutional proceeded against the State of Missouri. See, e.g., Rizzo v. State, 189 S.W.3d 576 (Mo. banc 2006); Legends Bank v. State, 361 S.W.3d 383 (Mo. banc 2012). However, AMEC Plaintiffs' Count V, the only count presenting a challenge solely under Missouri law, was dismissed after the parties stipulated to Count V's dismissal. Doc. #87. As it relates to AMEC Plaintiffs' Amended Complaint, the Court is left with counts alleging violations of both federal and state law. The Court will address the merits of these claims in a manner that does not involve state law. Furthermore, the entry of an appearance and filing of an answer, in which the state asserted sovereign immunity, does not amount to a waiver of the state's immunity.

         As AMEC Plaintiffs note, “[g]ranting the Motion to Dismiss the State of Missouri would have no practical effect on this litigation.” Doc. #49, at 6 n.1. While state officials may be sued under Ex Parte Young, this doctrine does not extend to states. See Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007). Finding the State of Missouri is immune from suit under the Eleventh Amendment, and no exception to the general rule applies, the Court grants Defendants' motion to dismiss the State of Missouri.

         Defendants also moved to dismiss all state-law claims presented in AMEC Plaintiffs' Amended Complaint. Defendants argue the Court lacks subject matter jurisdiction because Plaintiffs invoked jurisdiction only under 28 U.S.C. § 1331, which provides jurisdiction over claims invoking federal law. This Court has supplemental jurisdiction “over all other claims that are so related to claims in the action within such original jurisdiction they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). The Court addresses the merits of Plaintiffs claims under the United States Constitution, and does not consider Plaintiffs' claims under the Missouri Constitution. Accordingly, the Court dismisses the state-law claims without prejudice. The Court grants Defendants' first motion to dismiss (Doc. #28).

         (2) Second Motion to Dismiss

         In their second motion to dismiss, Defendants seek dismissal of all claims by both sets of plaintiffs. Defendants give four reasons why the Court should grant their second motion to dismiss. First, Defendants argue Plaintiffs mistake the actual requirements of Section 23, and accordingly, Plaintiffs' lack standing, and their claims are not ripe.[11] Second, Defendants admit Section 23's ban on corporate and union contributions to ballot measure committees violates the United States Constitution, and state the MEC will not enforce that provision. Accepting Defendants' position on these two points would lead the Court to conclude Plaintiffs do not have standing and their claims are not ripe. Third, Defendants contend the remaining challenged portions of Section 23 are lawful restraints on political activity. Accepting Defendants' position on this point would lead the Court to conclude Plaintiffs fail to state a claim because Section 23's provisions are lawful. Fourth, Defendants point to their first motion to dismiss, noting claims against the State of Missouri and AMEC Plaintiffs' state-law claims should be dismissed. The Court has already addressed this final argument. See Section II.A. (1).

         (a) Standing and Ripeness Legal Standards

         The “irreducible constitutional minimum” of standing has three elements. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). A plaintiff must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan, 504 U.S. at 560-61; Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 180-81 (2000)). An “injury-in-fact” is “realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement.” Iowa Right to Life Comm., Inc. v. Tooker, 717 F.3d 576, 584 (8th Cir. 2013) (quoting St. Paul Area Chamber of Commerce v. Gaetner, 439 F.3d 481, 485 (8th Cir. 2006)).

         Two types of injuries can confer standing in the First Amendment context when a plaintiff seeks prospective relief. Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 794 (8th Cir. 2016) (citations omitted). First, a plaintiff can establish standing by alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Id. (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). A threat of future or present prosecution must be “credible” rather than “wholly speculative.” Iowa Right to Life Comm., 717 F.3d at 584 (citations omitted). Second, a plaintiff can establish standing by alleging it self-censored. Missourians for Fiscal Accountability, 830 F.3d at 794 (citing 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011)). “A party need not expose itself to arrest or prosecution under a criminal statute to challenge it in federal court.” Iowa Right to Life Comm., 717 F.3d at 584. A party suffering from a credible threat of future prosecution suffers from an ongoing injury resulting from the statute's chilling effect on his desire to exercise his First Amendment rights. Missourians for Fiscal Accountability, 830 F.3d at 794 (citations omitted).

         Faced with a claim of self-censorship, the Court must consider whether a party's decision to chill its speech in light of the challenged statute was objectively reasonable. Id. (citing 281 Care Comm., 638 F.3d at 627) (quotations omitted)). Although complaints against plaintiffs may not reach the criminal stage or prosecution may not be threatened, non-criminal consequences contemplated by a challenged statute may contribute to the objective reasonableness of an alleged chill. Id.

         In addition to finding Plaintiffs have standing to bring their claims, the Court must determine whether Plaintiffs' claims are ripe for review. Rather than prematurely adjudicating a dispute, the ripeness doctrine prevents Courts “from entangling themselves in abstract disagreements over administrative policies, and also protects the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 796 (quoting Nat'l Right to Life Political Action Comm. v. Connor, 323 F.3d 684 (8th Cir. 2003)). “To decide ripeness, courts consider: (1) the hardship to the plaintiff caused by delayed review; (2) the extent to which judicial intervention would interfere with administrative action; and (3) whether the court would benefit from further factual development.” Id. at 796-97 (citation omitted). The touchstone of a ripeness inquiry is whether the harm asserted has matured enough to warrant judicial intervention. Id. at 797 (citation and quotations omitted).

         (b) Advisory Opinions

         The MEC issued advisory opinions after receiving inquiries from various entities. Defendants argue these advisory opinions accurately represent how Section 23 will be enforced, and are binding legal authorities establishing Plaintiffs will not suffer criminal or civil penalties if they engage in the challenged conduct. On that basis, Defendants argue Plaintiffs lack standing because the advisory opinions establish Plaintiffs do not face a credible threat of enforcement if they engage in the challenged conduct. Plaintiffs argue these opinions are outside the scope of the MEC's authority, inaccurately interpret the law, are not final, binding opinions, and Section 23 does not expressly delegate authority to the MEC to issue interpretative advisory opinions.

         The MEC has statutory authority to issue advisory opinions “regarding any issue that the commission can receive a complaint on pursuant to Section 105.957.” Mo. Rev. Stat. § 105.955.16(1). Section 105.957 enumerates provisions on which the MEC may receive a complaint. Mo. Rev. Stat. § 105.957.1(1)-(6). Relevant to Plaintiffs' challenge, the MEC may receive complaints regarding alleged violations of “the constitution...relating to the official conduct of officials or employees of the state and political subdivisions.” Mo. Rev. Stat. § 105.957.1(6). Plaintiffs note Defendants' advisory opinions on provisions of Section 23 do not relate to the conduct of officials or state employees. Nor does Section 23 expressly grant the MEC authority to receive a complaint on the provisions at issue in this matter. See generally Section 23.[12] Given the uncertainty of whether the MEC has authority to issue these advisory opinions, Plaintiffs urge the Court to confer standing to bring their claims.

         If the MEC has authority to issue these advisory opinions, Plaintiffs argue an advisory opinion may be withdrawn at any time by the MEC, the state legislature's Joint Committee on Administrative Rules, or the General Assembly. See Mo. Rev. Stat. § 105.955.16(1). During the hearing in this matter, the Court requested supplemental briefing regarding whether previous MEC advisory opinions were rescinded, other than in response to legislation superseding prior opinions. All parties filed supplemental briefing on the matter. Docs. #76-78. Defendants state sixteen advisory opinions, of 407 total, were rescinded, and twelve of those rescissions occurred in response to new legislation. Plaintiffs recognize several advisory opinions were rescinded after legislative changes, but they cite to advisory opinions withdrawn after the MEC determined the opinion incorrectly interpreted the law, an allegation made regarding several advisory opinions at issue here. Plaintiffs also cite to an advisory opinion regarding the Missouri Constitution's nepotism clause that was allegedly withdrawn sua sponte by the MEC.

         Defendants note passage of section 105.957, delineating issues on which the MEC may receive complaints, predates passage of Section 23, and argue the MEC has inherent authority to interpret the law given its regulatory and administrative function overseeing Missouri's campaign finance laws. This is a reasonable position. Plaintiffs argue the advisory opinions exceed the MEC's authority, incorrectly interpret the law, and do not provide reliable guidance on what conduct may be lawful because Plaintiffs fear the opinions may be withdrawn. On the record before the Court, this is also a reasonable position.

         While the Court has doubts that the potential rescission of an advisory opinion would expose Plaintiffs to liability for an alleged violation occurring before rescission, the Court need not decide whether the MEC exceeded its authority by issuing advisory opinions interpreting Section 23 to address the merits of this matter. Regardless of the validity of the advisory opinions, both parties advance arguments related to whether the text of Section 23 violates the First Amendment and other constitutional provisions. As explained below, the Court finds Plaintiffs have standing, and their claims are ripe for the Court's review.

         (c) Plaintiffs' Standing and Ripeness of Claims

         Plaintiffs allege Section 23 affects their ability to contribute to various entities and/or accept contributions from entities. AMEC-PAC desires to accept contributions from its domestic and foreign member organizations not organized under chapters 347 through 360, but alleges Section 23 prevents it from accepting these contributions.[13]AMEC-PAC further alleges it donated to other PACs in the past, and would do so again in the future, but Section 23 prohibits it from doing so. Legends Bank made contributions to PACs in the past, but alleges Section 23 now prohibits these contributions because Legends Bank is not organized under chapters 347 through 360. John Kleeba, Legends Bank's President, Chairman of the Board, and General Counsel, testified he made a contribution to the Missouri Bankers Association PAC days after Section 23 became effective, but the contribution was returned. Kleeba further testified Legends Bank stopped making contributions at this time.

         FFEF wants to accept contributions from other Plaintiffs, but will not because it fears investigation, prosecution, and sanctions. FFEF intends to raise funds in unlimited amounts and use contributions to make independent expenditures in support of one or more candidates in the 2018 Republican primary for Missouri State Auditor.[14] Worker Freedom wants to accept contributions from ADA, HSI, and Farmers, but will not accept these contributions because it fears investigation, prosecution, and sanctions. Elliott wants to contribute in excess of $2, 600 to FFEF for the purpose of making independent expenditures, and separately to candidate committees of more than one candidate in the 2018 Republican primary for Missouri State Auditor, but not more than $2, 600 to any single candidate. Elliott will not make these contributions because he fears investigation, prosecution, and sanctions. ADA wants to make a contribution in excess of $2, 600 per election to FFEF. Further, ADA would make a contribution to Worker Freedom, but will not because it fears investigation, prosecution, and sanctions. HSI wants to contribute in excess of $2, 600 per election to FFEF and would contribute to Worker Freedom, but will not because it fears investigation, prosecution, and sanctions. Farmers wants to make a contribution in excess of $2, 600 per election to FFEF and would make a contribution to Worker Freedom, but will not because it fears investigation, prosecution, and sanctions.

         In this First Amendment case, Plaintiffs must demonstrate there is a credible threat of enforcement or they engaged in self-censorship to establish standing. Relying on Plaintiffs' alleged misinterpretations of Section 23 and recent advisory opinions, Defendants argue Plaintiffs do not face a credible threat of enforcement. A defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). As discussed above, the Court finds Plaintiffs' hesitancy to rely on the MEC's advisory opinions reasonable. Although the MEC has not brought an enforcement action against Plaintiffs, the Court cannot determine Plaintiffs face no credible threat of prosecution in light of Plaintiffs' challenges to Section 23's plain language.[15]

         Plaintiffs' strongest argument in favor of standing is their self-censorship. Self-censorship must be objectively reasonable. Missourians for Fiscal Accountability, 830 F.3d at 794. As detailed above, Plaintiffs allege Section 23 prohibits them from receiving and making their desired contributions. Violations of Section 23 may result in criminal and monetary sanctions. Given confusion regarding the validity of the advisory opinions, and confusion regarding what conduct Section 23 proscribes, Plaintiffs' self-censorship is objectively reasonable. Thus, Plaintiffs have standing.

         Next, the Court must determine whether Plaintiffs' claims are ripe for adjudication. The parties agree two claims are ripe: (1) Section 23.3(12)'s prohibition on contributions by entities not formed under chapters 347 through 360, and (2) Section 23.3(12)'s prohibition on PAC to PAC contributions. However, again relying on advisory opinions and Plaintiffs' alleged misinterpretations of Section 23, Defendants argue Plaintiffs' remaining claims are not ripe because Plaintiffs do not face criminal or civil penalties for the conduct in which they wish to engage.

         “To decide ripeness, courts consider: (1) the hardship to the plaintiff caused by delayed review; (2) the extent to which judicial intervention would interfere with administrative action; and (3) whether the court would benefit from further factual development.” Id. at 796-97 (citation omitted). Plaintiffs have refrained from making or receiving desired contributions, and the Court heard testimony regarding Legends Bank's contribution to the Missouri Bankers Association being returned because Section 23 prohibited the contribution. Delayed review of the provisions at issue will further impose on Plaintiffs' ability to participate in political conduct in which they wish to engage. Further, the MEC issued advisory opinions interpreting Section 23, and in this regard, there is no judicial interference with any administrative action. Finally, the Court has received extensive briefing and heard testimony on these issues. Further factual development is not needed. Given these circumstances, the Court finds Plaintiffs' claims are ripe.

         The Court denies Defendants' second motion to dismiss (Doc. #30) because the Court finds Plaintiffs have standing and their claims are ripe. In light of the parties' proposed consent judgment, the Court also finds claims related to Section 23's ballot measure ban should not be dismissed. Defendants' arguments that several aspects of Section 23 are lawful will be addressed below in the Court's discussion of the merits of Plaintiffs' motions for injunctive relief.

         B. Permanent Injunction

         As detailed above, Plaintiffs initially sought preliminary injunctions. Given the nature of this case and the need for a timely resolution, the Court converted the hearing on Plaintiffs' preliminary injunction motions to a hearing on Plaintiffs' requests for permanent injunction. Doc. #63. To obtain a preliminary injunction against an allegedly unconstitutional state law, a plaintiff must prove the injunction's necessity under the factors set forth in Dataphase Systems, Inc., v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981). Gen. Motors Corp. v. Harry Brown's, LLC, 563 F.3d 312, 316 (8th Cir. 2009). These factors are: (1) a “threat of irreparable harm to the movant”; (2) “the state of balance between this harm” and any injury that granting the injunction will cause to others; (3) the “probability that movant will succeed on the merits”; and (4) “the public interest.” Dataphase, 640 F.2d at 114. “While no single factor is determinative, the probability of success factor is the most significant.” Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013) (internal quotations and citations omitted). For a First Amendment challenge, if a plaintiff does not show a likelihood of success on the merits, it likely has not met the remaining requirements for preliminary injunction. Powell v. Noble, 798 F.3d 690, 702 (8th Cir. 2015). “When a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (hereinafter “MCCL”) (quoting Phelps-Roper v. Troutman, 662 F.3d 485, 488 (8th Cir. 2011)).

         “The standard for issuing a preliminary or permanent injunction is essentially the same, excepting one key difference: a permanent injunction requires the moving party to show actual success on the merits, rather than the fair chance of prevailing on the merits required for a preliminary injunction. See Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008); Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir.1999). If a court finds a movant is actually successful on the merits, it then considers the following factors in deciding whether to grant a permanent injunction: (1) the threat of irreparable harm to the moving party; (2) the balance of harms with any injury an injunction might inflict on other parties; and (3) the public interest. See Planned Parenthood, 530 F.3d at 729 n.3; Dataphase, 640 F.2d at 113.

         The Court first addresses the merits of Plaintiffs' claims. Finding partial success on the merits, the Court details appropriate injunctive relief.

         (1) ...


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