CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/6/2023 1

Unconstitutional Proscription on Forming a 

Campaign Committee Shortly Before an Election 

Missourians for Fiscal Accountability v. Klahr 

(Ortrie D. Smith, W.D. Mo. 2:14-cv-4287) 

A district court’s temporary restraining order blocked a proscription 

on forming a campaign committee fewer than thirty days before an 

election. After the election, the district judge determined that the 

case was not moot, but he later determined that it was not ripe. The 

court of appeals concluded that the case was ripe, and the district 

judge then issued a summary judgment that the proscription was unconstitutional. The court of appeals agreed, and the district judge 

awarded the plaintiff $158,055.80 in attorney fees and costs. 

Subject: Campaign activities. Topics: Campaign finance; 

attorney fees; recusal; ballot measure. 

On the Thursday before the November 4, 2014, general election, an organization established on October 22 to promote a ballot proposition filed a federal 

complaint in the Western District of Missouri challenging a statute that forbade the formation of a campaign committee fewer than thirty days before an 

election.1

 A little after 11:00 on the following morning, the organization filed 

a motion for preliminary and permanent injunctions and a temporary restraining order.2

On the case’s second day, Judge Dean Whipple recused himself,3

 and the 

court reassigned the case to Judge Ortrie D. Smith.4 Judge Smith held a telephonic hearing at 3:30 p.m. on Friday.5

 On Sunday, he issued a temporary 

restraining order against enforcement of the statute as an unconstitutional restriction on speech.6

 “[T]he blackout period is not a disclosure requirement. It 

does not require those collecting or expending funds to say anything to anyone, much less to the electorate. To the contrary, the blackout period forbids

communication by preventing the committee from expending solicited 

funds.”7

1. Complaint, Missourians for Fiscal Accountability v. Klahr, No. 2:14-cv-4287 (W.D. Mo. 

Oct. 30, 2014), D.E. 1; Missourians for Fiscal Accountability v. Klahr, 892 F.3d 944, 948 (8th 

Cir. 2018); Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 792 (8th Cir. 2016); 

see Mo. Rev. Stat. § 130.011(8). 

2. Motion, Missourians for Fiscal Accountability, No. 2:14-cv-4287 (W.D. Mo. Oct. 31, 

2014), D.E. 5; Opinion at 2, id. (Nov. 2, 2014), D.E. 9 [hereinafter Temporary-RestrainingOrder Opinion], 2014 WL 5530996. 

3. Recusal Order, id. (Oct. 31, 2014), D.E. 4. 

4. Docket Sheet, id. (Oct. 30, 2014) (D.E. 6). 

5. Transcript, id. (Oct. 31, 2014, filed Nov. 17, 2014), D.E. 12; Temporary-RestrainingOrder Opinion, supra note 2, at 2. 

6. Temporary-Restraining-Order Opinion, supra note 2; Missourians for Fiscal Accountability, 892 F.3d at 948; Missourians for Fiscal Accountability, 830 F.3d at 792. 

7. Temporary-Restraining-Order Opinion, supra note 2, at 4. 
Unconstitutional Proscription on Forming a Campaign Committee Shortly Before an Election 

2 Federal Judicial Center 10/6/2023 

Two days after the election, Judge Smith issued an order to show cause 

why the case should not be dismissed as moot: “Plaintiff can no longer advocate in support of ballot issues from the election, and the Court can no longer 

grant any effective relief.”8 On January 8, 2015, Judge Smith concluded that 

the case was not moot, because “Plaintiff must register at least thirty days before any future elections.”9

On April 27, however, Judge Smith determined that the organization’s 

claims were not yet ripe.10 By a vote of two to one, the court of appeals determined on July 29, 2016, that the case was ripe because the committee formed 

to support a successful 2014 ballot proposition had engaged in eleven days of 

self-censorship.11 Judge Smith awarded the organization summary judgment 

on January 5, 2017,12 a judgment affirmed by the court of appeals on June 12, 

2018.13 “[T]he formation deadline prohibits those who do not form a campaign committee 30 days before the election from speaking.”14 “Due to its burden on speech and its modest effect on preventing circumvention of the disclosure regime, the formation deadline is not narrowly tailored.”15

On April 10, 2017, Judge Smith awarded the organization $158,055.80 in 

attorney fees and costs.16

8. Order to Show Cause, Missourians for Fiscal Accountability, No. 2:14-cv-4287 (W.D. 

Mo. Nov. 6, 2014), D.E. 11. 

9. Order at 1, id. (Jan. 8, 2015), D.E. 20. 

10. Opinion, id. (Apr. 27, 2015), D.E. 25, 2015 WL 1893359; Missourians for Fiscal Accountability, 830 F.3d at 792; Missourians for Fiscal Accountability, 892 F.3d at 948. 

11. Missourians for Fiscal Accountability, 830 F.3d at 794–97; Missourians for Fiscal Accountability, 892 F.3d at 948. 

12. Opinion, Missourians for Fiscal Accountability, No. 2:14-cv-4287 (W.D. Mo. Jan. 5, 

2017), D.E. 44, 2017 WL 58588; Missourians for Fiscal Accountability, 892 F.3d at 948. 

13. Missourians for Fiscal Accountability, 892 F.3d at 946. 

14. Id. at 949. 

15. Id. at 952. 

16. Opinion, Missourians for Fiscal Accountability, No. 2:14-cv-4287 (W.D. Mo. Apr. 10, 

2017), D.E. 62.