United States Court of Appeals

For the Eighth Circuit

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No. 15-2172

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Missourians for Fiscal Accountability

lllllllllllllllllllll Plaintiff - Appellant

v.

JamesKlahr,inhisofficialcapacityasExecutiveDirectoroftheMissouriEthicsCommission

lllllllllllllllllllll Defendant - Appellee

____________

Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

____________

 Submitted: February 11, 2016

 Filed: July 29, 2016

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Before LOKEN, ARNOLD, and BENTON, Circuit Judges.

____________

BENTON, Circuit Judge.

Missourians for Fiscal Accountability (MFA) formed a campaign committee

on October 22, 2014—less than 30 days before the November 4 election—in

violation of Missouri law section 130.011(8). MFA sued the executive director of 1

All statutory citations are to RSMo Supp. 2013, unless otherwise indicated.

1
the Missouri Ethics Commission (MEC), in his official capacity, seeking to declare

unconstitutional the 30-day formation deadline. The district court granted a

temporary restraining order, but after the election, dismissed MFA’s suit as not ripe. 

MFA appeals. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and

remands. 

I.

Campaign committees are “formed by an individual or group of individuals to

receive contributions or make expenditures and whose sole purpose is to support or

oppose the qualification and passage of one or more particular ballot measures in an

election . . . .” § 130.011(8). These committees “shall be formed no later than thirty

days prior to the election” and “shall terminate the later of either thirty days after the

general election or upon the satisfaction of all committee debt after the general

election . . . .” Id. 

“Any person who knowingly accepts or makes a contribution or makes an

expenditure in violation of any provision of this chapter [130] . . . shall be held liable

to the state in civil penalties in an amount equal to any such contribution or

expenditure.” § 130.072. “Upon vote of at least four members, the commission may

initiate formal judicial proceedings seeking to obtain any of the following orders: .

. . (2) Pay any civil penalties required by . . . chapter 130.” § 105.961.5(2). The MEC

has through “reconciliation agreements or civil action, the power to seek fees for

violations in an amount not greater than one thousand dollars or double the amount

involved in the violation.” § 105.961.4(6). In its verified answer, the MEC says that

it negotiates payment of a fee with the treasurer of a campaign committee that forms

within 30 days of the election. Consent orders show that the MEC negotiates

payment of part of the fee (about 10 percent). The remainder of the fee is then stayed

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until “any further violation of the campaign finance laws under Chapter 130, RSMo,

within the two-year period from the date of this order . . . .”2

Thirteen days before the November 2014 general election, a group of

individuals formed MFA as a campaign committee. § 130.011(8). That same day,

MFA notified the IRS that it was a political organization under section 527, claiming

it was “created to ensure that the finances of the State of Missouri are properly

represented and explained to the voting citizens of the State during the legislative

process.” The next day, MFA filed its Articles of Incorporation of a nonprofit 3

corporation in Missouri, stating its purpose was the “education of general public on

issues concerning fiscal responsibility.” MFA listed its duration as “perpetual,” and

it remains in good standing with the State. See Missouri Online Business Filing:

S e a r c h f o r a B u s i n e s s E n t i t y , a v a i l a b l e a t

https://bsd.sos.mo.gov/BusinessEntity/BESearch.aspx?SearchType=0 (last visited

July 26, 2016); IRS: Search Political Organization Disclosures, available at

https://forms.irs.gov/app/pod/basicSearch/search?execution=e1s1 (last visited July

Additionally, “[a]ny person who purposely violatesthe provisions of [chapter

2

130] is guilty of a class A misdemeanor.” § 130.081.1 RSMo 2000. See Impey v.

Missouri Ethics Comm’n, 442 S.W.3d 42, 44 (Mo. banc 2014) (recognizing “if the

MEC believes that there are reasonable grounds that a violation of a criminal law has

occurred, the MEC may refer the report to the appropriate prosecutor upon a vote of

four members of the commission.”); § 105.961.2 (“When the commission concludes

. . . that a violation of any criminal law has occurred, and if the commission believes

that criminal prosecution would be appropriate upon a vote of four members of the

commission, the commission shall refer the report to the Missouri office of

prosecution services . . . for appointment of an attorney to serve as special prosecutor

. . . .”). “Any person who fails to file any report or statement required by this chapter

[130] within the time periods specified in sections 130.011 to 130.051 is guilty of an

infraction.” § 130.081.2 RSMo 2000. 

On March 27, 2015—months after the election—MFA amended its 527 3

purpose to “Support Constitutional amendment 10.”

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26, 2016). See generally Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648

(7th Cir. 2011) (recognizing “the authority of a court to take judicial notice of

government websites”).

According to MFA, section 130.011(8) prohibited it from receiving

contributions or making expenditures because it formed less than 30 days before the

2014 general election. MFA thusinitially refrained from receiving contributions and

making expenditures. Eight days after formation, MFA sought declaratory and

injunctive relief from the 30-day formation deadline. MFA asserted that the

formation deadline unconstitutionally burdened its First Amendment rights to free

speech and political association. Two days before the election—on November 2—the

district court issued a temporary restraining order. See Missourians for Fiscal

Accountability v. Klahr, 2014 WL 5530996 (W.D. Mo. Nov. 2, 2014). MFA then

received contributions and spent $525 on robocalls. 

After the election, MFA filed the required termination statement. See §

130.021.8. Though the district court found MFA’s claims not moot, it dismissed

MFA’s claims on ripeness grounds, without prejudice. See Missourians for Fiscal

Accountability v. Klahr, 2015 WL 1893359 (W.D. Mo. Apr. 27, 2015). MFA

appeals.

II.

The MEC asserts MFA lacks standing because it faces no actual or imminent

threat of a concrete and particularized injury-in-fact. 

“Standing is always a ‘threshold question’ in determining whether a federal

court may hear a case.” 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir.

2011). A party invoking federal jurisdiction has the burden of establishing standing

“for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493

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(2009). “[A]n actual controversy must be extant at all stages of review, not merely

at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975). 

See also Salazar v. Buono, 559 U.S. 700, 731 (2010) (Scalia, J., concurring) (“A

plaintiff cannot sidestep Article III’s requirements by combining a request for

injunctive relief for which he has standing with a request for injunctive relief for

which he lacks standing.”). 

[T]o seek injunctive relief, a plaintiff must show that he is

under threat ofsuffering ‘injury in fact’ that is concrete and

particularized; the threat must be actual and imminent, not

conjectural or hypothetical; it must be fairly traceable to

the challenged action of the defendant; and it must be

likely that a favorable judicial decision will prevent or

redress the injury. 

Summers, 555 U.S. at 493, quoted in Bernbeck v. Gale, 2016 WL 3769481, at *2

(8th Cir. July 14, 2016). To seek declaratory relief, standing must exist “at the time

of the hearing. . . .” Golden v. Zwickler, 394 U.S. 103, 108 (1969). 

In the First Amendment context, “two types of injuries may confer Article III

standing to seek prospective relief.” Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir.

2003), citing Mangual v. Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003). First, MFA

could 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.” Babbitt v. Farm Workers, 442

U.S. 289, 298 (1979). Second, MFA can establish standing by alleging that it selfcensored. 281 Care Comm., 638 F.3d at 627. “[A] First Amendment plaintiff who

faces a credible threat of future prosecution suffers from an ongoing injury resulting

fromthe statute’s chilling effect on his desire to exercise his First Amendment rights.” 

Ward, 321 F.3d at 1267 (internal quotations omitted)(emphasisin original)). Indeed,

“when there is a danger of chilling free speech, the concern that constitutional

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adjudication be avoided whenever possible may be outweighed by society’s interest

in having the statute challenged.” Secretary of State of Md. v. Joseph H. Munson

Co., 467 U.S. 947, 956 (1984) (applying this principle to the prudential concern with

third-party standing), cited by Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)

(“The leniency of First Amendment standing manifests itself most commonly in the

doctrine’s first element: injury-in-fact.”). See also Arizona Right to Life Political

Action Committee v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (“[W]hen the

threatened enforcement effort implicates First Amendment rights, the inquiry tilts

dramatically toward a finding of standing.”).

In its verified complaint, MFA says it engaged in self-censorship to comply

with section 130.011(8). For 11 days—from formation until the entry of the

temporary restraining order—MFA did not receive contributions or make

expenditures. MFA’s treasurer swears he “prohibited any agent of the organization

from soliciting and/or accepting contributions or pledges from any corporate entity

based on the prohibitions found in Section 130.011 . . . of the Missouri Revised

Statutes.” And, the verified complaint adds that “[b]ut for the thirty-day blackout

period . . . and the substantial likelihood of being subjected to a criminal

prosecution,” MFA would have “immediately [sought] to raise and expend funds in

support of Proposition 10.” 

In analyzing a claimofstanding through self-censorship, “[t]he relevant inquiry

is whether a party’s decision to chill his speech in light of the challenged statute was

‘objectively reasonable.’” 281 CareComm., 638 F.3d at 627. Even when complaints

against plaintiffs do not reach “the criminal stage and no criminal prosecution was

ever threatened, non-criminal consequences contemplated by a challenged statute can

also contribute to the objective reasonableness of alleged chill.” Id. at 630. By

Missouri law, “[a]ny person who knowingly accepts ormakes a contribution ormakes

an expenditure in violation of any provision of this chapter [130] . . . shall be held

liable to the state in civil penalties in an amount equal to any such contribution or

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expenditure.” § 130.072 (emphasis added). And, MEC’s verified answer confirms

its policy to impose a fee. In light of the statute’s plain language and the MEC’s

stated policy, MFA’s self-censorship is objectively reasonable. Cf. National Right

to Life Political Action Comm. v. Connor, 323 F.3d 684, 690 (8th Cir. 2003) (“There

is no dispute over [the committee’s] standing to challenge section 130.011(10); [the

committee] clearly falls within the statute’s definition of a ‘continuing committee.’”). 

MFA has Article III standing to challenge section 130.011(8) on First

Amendment grounds.

III.

Though the 2014 election has passed, this case is not moot. For mootness, the

“requisite personal interest that must exist at the commencement of the litigation

(standing)must continue throughout its existence (mootness).” Friends ofthe Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 (2000). MFA violated

the formation deadline by forming within thirty days of election. For this, the MEC

can impose a fee. See § 105.961.4(6). That it has not yet done so is irrelevant

because the MEC’s inaction “is not permanent.” See Los Angeles v. Lyons, 461 U.S.

95, 101 (1983) (holding that a moratorium on the use of choke holds by the police

department did not moot a case challenging the constitutionality of the use of choke

holds because “[i]ntervening events have not irrevocably eradicated the effects of the

alleged violation”) (internal quotations omitted)). Cf. Knox v. Service Employees,

132 S. Ct. 2277, 2287 (2012) (“The voluntary cessation of challenged conduct does

not ordinarily render a case moot because a dismissal for mootness would permit

resumption of the challenged conduct as soon as the case is dismissed.”). MEC can

at any time implement its policy and assess the fee for violation of the formation

deadline in section 130.011(8). The MEC and MFA continue to have “adverse legal

interests, of sufficient immediacy and reality to warrant the issuance of a declaratory

judgment.” Golden, 394 U.S. at 108.

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Alternatively, MFA invokes the exception to mootness for “capable of

repetition yet evading review.” This exception will “rescue an otherwise moot claim

if (1) the challenged conduct is of too short a duration to be litigated fully prior to its

cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subject to the same action again.” Connor, 323 F.3d at

691. The question is “whether the controversy was capable of repetition and not . . .

whether the claimant had demonstrated that a recurrence of the dispute was more

probable than not.” Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (emphasis in

original). 

“Election issues are among those most frequently saved from mootness by this

exception.” Connor, 323 F.3d at 691 (internal quotations omitted). Although MFA

terminated by operation of law as a campaign committee for the 2014 election, it still

exists as a section 527 political organization and a nonprofit corporation in good

standing in Missouri. Its corporate purpose is the “education of general public on

issues concerning fiscal responsibility.” Cf. Zwickler, 394 U.S. at 109 (finding no

“case or controversy” where the plaintiff’s “sole concern wasliterature relating to the

Congressman” who had taken a position in the judiciary and “it was most unlikely

that the Congressman would again be a candidate for Congress”), distinguished by

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2344 (2014) (finding standing

for advocacy organizations because their focus was on broader issues “not on the

voting record of a single candidate”). Post-election, in Answer to the Court’s Order

to Show Cause, MFA alleged it “will once again be harmed by [section 130.011(8)]

. . . if and when it chooses to support or oppose the qualification and passage of one

or more particular ballot measures in future elections.” “[A]ny number of events . .

. might cause [the committee] to become involved in a state race within thirty days

of an election.” See id. at 692 (citing a candidate’s death, polls that “might reveal a

closer race than expected,” new information “or effective advertising [that] could

drastically alter public opinion in the weeks before an election,” and trends “in other

races [that] could elevate the importance of races with less clear outcomes”). To

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participate in future elections, MFA must re-form as a campaign committee. And,

4

it must face the specter of section 130.011’s formation deadline and MEC’s policies

on fees. Cf. Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974) (“[T]he

challenged governmental activity in the present case is not contingent, has not

evaporated or disappeared, and, by its continuing and brooding presence, casts what

may well be a substantial adverse effect on the interests of the petitioning parties.”),

as construed in Weinstein v. Bradford, 423 U.S. 147, 148 (1975) (“Even though the

particular strike which had been the occasion for the filing of the lawsuit was

terminated, the Court held that it was enough that the petitioner employer showed ‘the

existence of an immediate and definite governmental action or policy that has

adversely affected and continues to affect a present interest’”). 

The district court did not err in concluding that the case is not moot.

IV.

The district court dismissed MFA’s claims as not ripe. MFA maintains that its

challenge to the 30-day formation deadline is ripe for review. Ripeness is reviewed

de novo. Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014). 

The ripeness doctrine prevents courts “through avoidance of premature

adjudication, 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.” Connor, 323 F.3d at 692, quoting Abbott Labs. v.

The MEC stresses Connor’s reference to this continuing-committee provision

4

as a “registration deadline.” See Connor, 323 F.3d at 693. MFA believes that the

similar campaign-committee provision is a “formation deadline.” These labels

summarize the parties’ contrasting views of the “committee shall be formed”

deadline—an issue for consideration on the merits.

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Gardner, 387 U.S. 136, 148-49 (1967). 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 692-93. “The touchstone of

a ripeness inquiry is whether the harm asserted has matured enough to warrant

judicial intervention.” Parrish, 761 F.3d at 875. 

In Connor, this court addressed the statute for continuing committees, which

then imposed a 30-day formation deadline. Connor, 323 F.3d at 693, citing

§ 130.011(10) RSMo 2000 (30-day time-limit, later amended to 60 days). This court

concluded that a continuing committee’s claim was not ripe because it presented

neither evidence “on the issue of fees” nor pursued an advisory opinion from the

MEC or a temporary restraining order. Id. at 693-94. This court explained that how

the MEC handles the fees for failing to file before the 30-day window has a

significant impact “on our constitutionalscrutiny ofsection 130.011(10).” Id. at 693.

Without fee evidence or a request for an advisory opinion or a restraining order, the

committee “may, in fact, discover that no real threat of enforcement exists at all.” Id.

“A claimis not ripe for adjudication if it rests upon ‘contingent future eventsthat may

not occur as anticipated, or indeed may not occur at all.’” Id., quoting Texas v.

United States, 523 U.S. 296, 300 (1998). 

Eleven years later, in 2014, MFA challenged section 130.011(8), which has a

formation deadline similar to that in Connor. See § 130.011(10) RSMo 2000 (30-day

time limit, later amended to 60 days)(stating a continuing committee “shall be formed

no later than thirty days prior to the election for which the committee receives

contributions or makes expenditures.”). Unlike the committee in Connor, MFA

presented evidence of the MEC imposing fees on committeesfor not complying with

the formation deadline. In one consent order, the MEC imposed a $1,000 fee on a

continuing committee, listing as a separate violation “failing to form as a committee

more than sixty days prior to the April 2013 election” (in addition to not timely filing

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an organizational statement). Missouri Ethics Comm’n v. Taxpayer Protection

PAC, No. 13E060 (Feb. 18, 2014) (Consent Order), available at

http://mec.mo.gov/Scanned/CasedocsPDF/18669.pdf. In the second consent order,

the MEC imposed a $3,100 fee on a continuing committee for “forming as a

committee less than sixty days prior to an election” (among other violations).5

Missouri Ethics Comm’n v. West, No. 14E091 (Oct. 8, 2014) (Consent Order),

available at http://mec.mo.gov/Scanned/CasedocsPDF/22110.pdf. TheMEC’s policy

on imposing fees for not meeting the formation deadline is clear, and the record is

now adequately developed. See Connor, 323 F.3d at 693 (where the committee

presented no evidence “on the issue of fees”). 

The touchstone of ripeness is the harm asserted by MFA. MFA asserts the

harm of self-censorship, based on its compliance with section 130.011(8). See

Arizona Right to Life Political Action Comm., 320 F.3d at 1007 n.6 (holding “our

conclusion that ARLPAC has suffered actual harm dispenses with any ripeness

concerns.”). MFA’s case is ripe for review.

* * * * * * *

The dismissal of MFA’s claims is reversed, and the case remanded for

proceedings consistent with this opinion.

In its verified answer, the MEC says that it negotiates payment of a fee with

5

the treasurer of a campaign committee. The consent orders show that the MEC

negotiates payment of part of the fee (about 10 percent). The remainder of the fee is

then stayed until “any further violation of the campaign finance laws under Chapter

130, RSMo, within the two-year period from the date of this order . . . .”

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ARNOLD, Circuit Judge, dissenting.

The 2014 election has come and gone, MFA's election committee has

dissolved, and the ballot measure for which MFA's election committee was created

to support has passed. MFA and the court nonetheless maintain that MFA has carried

its burden to demonstrate an ongoing Article III case or controversy. Because I

believe that this case is moot, that its challengesto future disputes are unripe, and that

MFA lacks standing to obtain prospective equitable relief, I respectfully dissent.

Article III requires that a plaintiff's personal interest in the litigation must

continue throughout the life of the case, otherwise the case is moot. See Nat'l Right

to Life Political Action Comm. v. Connor, 323 F.3d 684, 691 (8th Cir. 2003). The

court draws on Connor to hold that MFA's claims were not moot because they were

capable of repetition yet would evade review. Claims are "capable of repetition yet

evading review" only when "there is a reasonable expectation that the same

complaining party will be subject to the same action again." Id. MFA, however,

provides no evidence that it will participate in a future election, much less create an

election committee within 30 days of one. The very nature of the election committee

inConnor, a continuing committee,suggested future participation because continuing

committees do not terminate by operation of law. See Mo. Rev. Stat. § 130.011(10).

Such a committee also tends to focus on issues that recur in different elections, such

as the pro-life concerns of the committee in Connor.

MFA's election committee, however, is a campaign committee that, asthe court

itself recognizes, dissolved by operation of law shortly after the 2014 election. See

Mo. Rev. Stat. § 130.011(8). It advocated (successfully) for the passage of a

particular ballot measure and filed a termination statement. Unlike the record in

Connor, the record here contains no evidence that the committee at issue will

continue to operate or regenerate to participate in future elections, nor is there

evidence that the ballot measure for which MFA successfully advocated will be the

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subject of a future election. Because MFA did not "make a reasonable showing that

[it] will again be subjected to the alleged illegality," City of Los Angeles v. Lyons, 461

U.S. 95, 109 (1983), its claims are not capable of repetition yet evading review. So

they are moot.

I respectfully disagree with the court's reliance on MFA's allegation that the

formation requirement will harm MFA "if and when it chooses to" participate in

another election. Not only is the allegation not evidence, this "some day" intention

is much too speculative to overcome mootness. See Bernbeck v. Gale, No. 15-1983,

2016 WL 3769481, at *3 n.3 (8th Cir. July 14, 2016). The court's reliance on Super

Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974), is also misplaced. Super Tire

involved a state law that made striking workers eligible for welfare programs. Even

though the strike in question ended while the litigation was pending, the state law

continued to affect the interests of the parties because, as the Supreme Court

explained one year after deciding Super Tire, the parties were engaged in "cyclically

recurring bargaining," Weinstein v. Bradford, 423 U.S. 147, 148 (1975) (per curiam),

and the law's favorable effect on the employees altered the parties' bargaining

positions. See Super Tire, 416 U.S. at 124. The state law therefore had an ongoing,

continuous, and certain effect. This case more closely resembles Weinstein, where the

Supreme Court held that a former state prisoner's challenge to the state's parole

procedures was moot because he had been released from prison and thus no longer

had a present interest in parole policies. Id. at 147–48. By providing no evidence of

an intent to regenerate for future elections, MFA has not demonstrated a presently

affected interest.

I suggest further that the court errs by concluding that MFA's claims are not

moot because the MEC has thus far only declined to penalize MFA. It is unclear to

me how the MEC could penalize a campaign committee long after it has dissolved,

and the two consent orders that the court identifies as showing an imminent threat of

a penalty involve penalties levied against continuing committees, which do not

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dissolve by operation of law. Nothing in the record shows that MEC actually

penalizes defunct campaign committees for late formation or suggests how it could

even do so.

MFA's claims are also unripe. Ripeness requires an examination of the fitness

of issues for judicial determination and the hardship to the parties when the decision

of a case is deferred. Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014). The

fitness consideration "safeguards against judicial review of hypothetical or

speculative disagreements," and the hardship consideration deals with whether

delayed review would work a significant practical harmon the plaintiff. Id. This harm

must be "certainly impending." Id. at 876. Claims are not ripe when they rest on

"contingent future events that may not occur as anticipated, or indeed may not occur

at all." Id. at 875–76.

MFA's claims for prospective equitable relief depend entirely on speculation.

Delayed review will not harm MFA because it has given no evidence of an intent to

regenerate its election committee for future elections. In no sense is any injury

"certainly impending." Unlike 281 Care Committee v. Arneson, 638 F.3d 621, 631

(8th Cir. 2011), upon which the court relies, MFA will not suffer harm "at defined

points" in the future because it has provided no evidence of an intent to act in the

future. And the fact that it may have been harmed previously does not license it to

seek prospective equitable relief ad infinitum, and the court errs in apparently

concluding otherwise.

In Golden v. Zwickler, the Supreme Court confronted a First Amendment

challenge to a New York law barring distribution of anonymous literature in

connection with an election campaign. 394 U.S. 103, 104–05 (1969). The plaintiff

was convicted (and thus already harmed) under the law for distributing literature

targeting a particular Congressman running for re-election in 1964. The First

Amendment challenge, filed after the 1964 election and the reversal of the plaintiff's

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conviction, alleged that the same Congressman would run in 1966, that he had been

a political figure for many years, and that the plaintiff intended to continue

distributing such literature. After the case was filed, the Congressman accepted a

position in the New York judiciary, so the Court concluded that it was unlikely that

the Congressman would seek re-election, precluding a finding that there was

sufficient immediacy and reality, so the Court lacked Article III jurisdiction. Because,

moreover, there was no upcoming re-election campaign, "it was wholly conjectural

that another occasion might arise when [plaintiff] might be prosecuted for distributing

the handbills referred to in the complaint," and his assertion that the former

Congressman could run again was "hardly a substitute for evidence that this is a

prospect of'immediacy and reality.'" Constitutional questions, even First Amendment

ones, must emanate from a specific live grievance. Id. at 109–10. The Court's

observations in Golden apply here with equal force.

Relatedly, MFA did not prove an actual, imminent injury that is not conjectural

or hypothetical, Mo. Roundtable for Life v. Carnahan, 676 F.3d 665, 672 (8th Cir.

2012), so it lacks standing. To have standing to raise a First Amendment challenge

to a state statute, "the plaintiff needs only to establish that he would like to engage in

arguably protected speech, but" the statute in question significantly discourages him

from doing so. 281 Care Comm., 638 F.3d at 627. The decision to refrain from

speaking in light of the relevant statute must be objectively reasonable, which

requires the plaintiff to demonstrate "an intention to engage in a course of conduct

arguably affected with a constitutional interest, but proscribed by [the] statute, and

there exists a credible threat of prosecution." Id.

The court concludes that MFA was harmed by its self-censorship. It seems to

me that MFA's self-imposed silence, if any, was not objectively reasonable. We

recognized in Connor, when construing a virtually identical formation requirement,

that the requirement "does not, on its face, limit issue or express advocacy." Connor,

323 F.3d at 693. In fact, MFA's proposed construction of the relevant statute borders

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on the fanciful. Life is risky, particularly political life, and President Truman's

aphorism about the heat and the kitchen surely has a special resonance in Missouri

campaigns. As Mr. Justice Cardozo remarked in a different but similar context, "the

timorous may stay at home." Murphy v. Steeplechase Amusement Co., 250 N.Y. 479,

483, 166 N.E. 173, 174 (1929). And MFA's self-imposed blackout does nothing to

avoid a penalty; it could have been assessed a penalty whether it was actively

speaking or keeping quiet: The challenged portion ofthe statute concerns only MFA's

formation, so whatever MFA did (or did not do) after it formed does not help resolve

the standing inquiry.

Finally, "[t]o have Article III standing to seek prospective relief, plaintiffs must

show they are likely to suffer future injury that will be remedied by the relief sought."

Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006). "Past exposure to illegal

conduct" will not suffice absent present adverse effects. Id. Past wrongs are merely

evidence showing the existence of a real and immediate threat of repeated injury. As

with the chokeholds in Lyons, MFA has not shown a real and immediate threat of

future harm that justifies prospective relief. "Absent a sufficient likelihood that [it]

will again be wronged in a similar way, [MFA] is no more entitled to an injunction

than any other citizen of [Missouri]." Lyons, 461 U.S. at 111. If MFA wants to

vindicate what happened to it in 2014, a claim for damages would be more

appropriate. See id. at 105, 111.

The court gives short shrift to MFA's lack of plans for participating in future

elections. Since MFA has not demonstrated the existence of an Article III case or

controversy, I respectfully dissent from the court's opinion and would affirm the

district court's judgment.

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