United States Court of Appeals

For the Eighth Circuit

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No. 17-2239

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Free and Fair Election Fund; Missourians for Worker Freedom; American

Democracy Alliance; Herzog Services, Inc.; Farmers State Bank; Missouri Electric

Cooperatives, doing business as Association of Missouri Electric Cooperatives;

Association of Missouri Electric Cooperatives, PAC; David Klindt; Legends

Bank; John Elliott,

lllllllllllllllllllllPlaintiffs - Appellees,

v.

Missouri Ethics Commission; Don Summers, in his official capacity; Kimberly

Benjamin, in her official capacity; George Ratermann, in his official capacity;

Wayne Henke, in his official capacity; Liz Ziegler, in her official capacity,

lllllllllllllllllllllDefendants - Appellants.

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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Submitted: April 10, 2018

Filed: September 10, 2018

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Appellants Henke and Ziegler are automatically substituted for their

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predecessors under Federal Rule of Appellate Procedure 43(c)(2).
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

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COLLOTON, Circuit Judge.

The Missouri Ethics Commission appeals the district court’s order

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permanently enjoining enforcement of a recently enacted provision of the Missouri

Constitution. The provision, found in Mo. Const. art. VIII, § 23.3(12), prohibits a

political action committee from receiving contributions from other political action

committees. The district court concluded that the prohibition unconstitutionally

infringed on a political action committee’s First Amendment rights to freedom of

speech and association. We agree and therefore affirm.

I.

On November 8, 2016, Missouri voters approved an amendment to the

Missouri Constitution that added several provisions pertaining to campaign finance. 

The amendment took effect on December 8, 2016, see Mo. Const. art. XII, § 2(b), and

was enacted as § 23 to Article VIII of the constitution.

At issue in this appeal is § 23.3(12), which provides in pertinent part:

“Political action committees. . . shall be prohibited fromreceiving contributionsfrom

other political action committees . . . .” The amendment defines “political action

committee” as

a committee of continuing existence which is not formed, controlled or

directed by a candidate, and is a committee other than a candidate

committee, political party committee, campaign committee, exploratory

The Honorable Ortrie D. Smith, United States District Judge for the Western 2

District of Missouri.

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committee, or debt service committee, whose primary or incidental

purpose isto receive contributions or make expendituresto influence or

attempt to influence the action of voters whether or not a particular

candidate or candidates or a particular ballot measure or measures to be

supported or opposed has been determined at the time the committee is

required to file any statement or report pursuant to the provisions of this

chapter.

Mo. Const. art. VIII, § 23.7(20). A “contribution” includes, among other things, a

payment made “for the purpose ofsupporting or opposing the nomination or election

of any candidate for public office or the qualification, passage or defeat of any ballot

measure.” Mo. Const. art. VIII, § 23.7(7).

The Missouri Ethics Commission investigates alleged violations of laws

pertaining to campaign finance and enforces those laws. Among other things, the

Commission is authorized to receive complaints that allege violations of campaign

finance disclosure requirements, violations of the provisions of the Missouri

constitution that relate to the official conduct of state officials, and violations of

§ 23.3 by a candidate for elective office. See Mo. Rev. Stat. § 105.957; Mo. Const.

art. VIII, § 23.4(1). If the Commission has reasonable grounds to believe that a

complaintshows a violation of criminal law, the Commission may refer the complaint

for prosecution. See Mo. Rev. Stat. § 105.961.2; Mo. Const. art. VIII, § 23.4(4). The

Commission has asserted that it “intend[s] to enforce Article VIII, Section 23 as

required by law.” R. Doc. 27, at 4-5.

After the amendment was approved, two Missouri political action committees

(PACs)—Free and Fair Election Fund (FFEF) and the Association of Missouri

Electric Cooperatives Political Action Committee (AMEC-PAC)—sued the

Commission and its members to enjoin enforcement of § 23.3(12)’s ban on PAC-toPAC transfers. FFEF receives contributions and makes independent expenditures to

influence voters. FFEF alleged that it desired to accept contributions from other

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PACs and to contribute to those PACs that make only independent expenditures. 

AMEC-PAC is a committee formed and maintained by AMEC, an association of

nonprofit, member-owned rural electric cooperative membership corporations. 

AMEC-PAC alleged that it wished to accept contributions from and contribute to

other PACs.

FFEF and AMEC-PAC sought declaratory and injunctive relief, alleging that

the ban on PAC-to-PAC transfers was unconstitutional on its face under the First and

Fourteenth Amendments, and unconstitutional as applied to each of them. After a

hearing, the district court concluded that the transfer ban was unconstitutional on its

face under the First Amendment and unconstitutional as applied to FFEF. It therefore

permanently enjoined the Commission from enforcing that provision. The

Commission appeals. Because the grant of injunctive relief turns on purely legal

issues under the First Amendment, we review the district court’s decision de novo. 

See Qwest Corp. v. Scott, 380 F.3d 367, 370 (8th Cir. 2004).

II.

The First Amendment protects the “right to participate in the public debate

through political expression and political association.” McCutcheon v. FEC, 572

U.S. 185, 203 (2014) (plurality opinion). “When an individual contributes money to

a candidate, he exercises both of those rights: The contribution ‘serves as a general

expression ofsupport for the candidate and his views’ and ‘servesto affiliate a person

with a candidate.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 21-22 (1976) (per

curiam)). Like individuals, PACs enjoy the right to freedom of speech and

association. See FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480,

492-96 (1985).

The ban on PAC-to-PAC transfers implicates these rights. By prohibiting a

PAC from receiving contributionsfrom other PACs, § 23.3(12) necessarily prohibits

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a PAC from making contributions to other PACs. Restricting the recipients to whom

a PAC can donate therefore limits the donor-PAC’s speech and associational rights

under the First Amendment.

“When [a State] restricts speech, [it] bears the burden of proving the

constitutionality of its actions.” Missourians for Fiscal Accountability v. Klahr, 892

F.3d 944, 948 (8th Cir. 2018) (alterationsin original) (quoting McCutcheon, 572 U.S.

at 210). Laws that regulate political contributions are subject to “exacting scrutiny.” 

McCutcheon, 572 U.S. at 197; Nixon v. Shrink Mo. Gov. PAC, 528 U.S. 377, 387-88

(2000). To meet that standard, the challenged law must advance a sufficiently

important state interest and employ means closely drawn to avoid unnecessary

abridgment of First Amendment freedoms. Buckley, 424 U.S. at 25. A restriction on

First Amendment freedoms is unconstitutional on its face if “no set of circumstances

exists under which [the restriction] would be valid.” Phelps-Roper v. Ricketts, 867

F.3d 883, 891-92 (8th Cir. 2017); see United States v. Stevens, 559 U.S. 460, 472

(2010). 

There is only one legitimate state interest in restricting campaign finances: 

“preventing corruption or the appearance of corruption.” McCutcheon, 572 U.S. at

206. This interest is limited to preventing “only a specific type of corruption—‘quid

pro quo’ corruption” or its appearance. Id. at 207. A large donation that is not made

“in connection with an effort to control the exercise of an officeholder’s official

duties, does not give rise to . . . quid pro quo corruption.” Id. at 208. Similarly, the

general risk that a donor, through large donations, will “garner influence over or

access to elected officials or political parties,” either in fact or in appearance, is

insufficient to create quid pro quo corruption. Id. (internal quotation marks omitted). 

Instead, “the risk of quid pro quo corruption is generally applicable only to the

narrow category of money gifts that are directed, in some manner, to a candidate or

officeholder.” Id. at 211 (internal quotation marks omitted).

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In this case, Missouri has not demonstrated a substantial risk that unearmarked

PAC-to-PAC contributions will give rise to quid pro quo corruption orits appearance. 

Because the amendment defines a PAC as a committee that is “not formed, controlled

or directed by a candidate,” Mo. Const. art. VIII, § 23.7(20), PACs operate

independently from candidates. “[T]here is not the same risk of quid pro quo

corruption or its appearance when money flows through independent actors to a

candidate, as when a donor contributes to a candidate directly.” McCutcheon, 572

U.S. at 210; see also Citizens United, 558 U.S. at 357. “When an individual

contributes to . . . a PAC, the individual must by law cede control over the funds.” 

McCutcheon, 572 U.S. at 210-11. If that PAC contributes the funds to a candidate,

it is typically the PAC, not the individual, who receives credit for the contribution. 

If the PAC instead contributesthe funds to another PAC, rather than to the candidate,

“the chain of attribution grows longer, and any credit must be shared among the

various actors along the way.” Id. at 211.

The Commission asserts that without the ban on PAC-to-PAC transfers, a

donor could evade the individual contribution limits of $2600 per candidate set forth

in Mo. Const. art. VIII, § 23.3(1)(a). The evasion would occur, the argument goes,

because a donor could contribute large, unearmarked sums of money to a candidate

by laundering it through a series of PACsthat he controls. The Commission says that

circumvention of the contribution limits creates a risk of quid pro quo corruption or

its appearance. It therefore contends that the ban advances the State’s interest in

preventing corruption by preventing circumvention of contribution limits.

The transfer ban, however, does little, if anything, to further the objective of

preventing corruption or the appearance of corruption. The Commission does not

“provide any real-world examples of circumvention” along the lines of its

hypothetical. McCutcheon, 572 U.S. at 217. It does not point to evidence of any

occasions before the amendment where PAC-to-PAC transfers led to the

circumvention of contribution limits. Nor does the Commission identify any donors

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who have exceeded contribution limits by using transfers among a network of

coordinated PACs. The lack of examples is not surprising, for a donor determined

to support a candidate with large sums of money need not employ PAC-to-PAC

transfers. The donor may contribute directly to multiple PACs with the expectation

that these PACs would support the donor’s preferred candidate. Or, more practically,

the donor may simply devote the full amount of contributions to independent

expenditures in support of the preferred candidate without the suggested

machinations. Why establish 385 separate PACs to donate $2600 each to a preferred

candidate when the donor can spend $1 million independently to support the

candidate? See id. at 213-14.

The Commission also contends that the transfer ban furthers the State’s anticorruption interest by promoting transparency. TheCommission assertsthat PAC-toPAC transfers obscure the source of “large” donations and make it “nearly impossible

for the Commission to enforce the State’s individual contribution limits.” In the

Commission’s view, exposing the source ofthese large donations discourages corrupt

behavior and permits the Commission to detect violations of contribution limits. But

the transfer ban does not materially further these objectives. Contribution limits

already prevent “large” donations in excess of $2600 to a candidate by a single

person, see Mo. Const. art. VIII, § 23.3(1)(a), and other provisions serve the State’s

interest in revealing efforts to contribute more. Donors are prohibited from

contributing to PACs with the purpose of concealing the source, see, e.g., Mo. Const.

art. VIII, §§ 23.3(7) & (14), 23.7(19), and disclosure laws ensure that both the public

and the Commission know the source of each donation. See, e.g., Mo. Rev. Stat.

§§ 130.041, 130.057.

The Commission urges usto follow the Eleventh Circuit in upholding a ban on

PAC-to-PAC transfers. In Alabama Democratic Conference v. Attorney General of

Alabama, 838 F.3d 1057 (11th Cir. 2016), the court reasoned that such a ban

furthered the State’sinterest in preventing corruption orthe appearance of corruption. 

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Id. at 1070. The court pointed to evidence that before such a ban, “PAC-to-PAC

transfers were viewed by Alabama citizens as a tool for concealing donor identity,

thus creating the appearance that PAC-to-PAC transfers hide corrupt behavior.” Id.

But the court also noted that Alabama law “does not limit the amount of money that

a person, business, or PAC may contribute directly to a candidate’s campaign.” Id.

at 1060. Unlike Alabama, Missouri limits the contributions that a PAC can make to

a candidate, so the anti-corruption interest cited in support of the Alabama law is

diminished here.

The transfer ban also is not closely drawn to serve an important state interest. 

Although the fit between the interest served and the means selected need not be

perfect, it must be reasonable, with the means selected proportionate to the interest

served. McCutcheon, 572 U.S. at 218. In this case, the risk of corruption from PACto-PAC transfers is modest at best, and other regulations like contribution limits and

disclosure requirements act as prophylacticmeasures against quid pro quo corruption. 

The ban therefore amounts to the sort of “prophylaxis-upon-prophylaxis” that

requires a court to be “particularly diligent in scrutinizing the law’s fit.” Id. at 221.

Assessing the fit of a proposed restriction requires consideration of available

alternatives that would serve the State’s interests while avoiding unnecessary

abridgment of First Amendment rights. See id. As the Court explained in

McCutcheon, anti-proliferation laws, including rules regarding affiliated PACs, are

a lessrestrictive means of preventing the sort of abuse that concerns the Commission. 

If the State forbids a donor to create numerous PACs to support a candidate or to

cause multiple PACs to coordinate their expenditures, then the Commission’s

hypothetical scenario would be unlawful. See id. at 211-13. Enhanced disclosure

requirements, too, “often represent[] a less restrictive alternative to flat bans on

certain types or quantities of speech.” Id. at 223. The Commission asserts that

additional disclosure requirements would not help the public to track the source of

donations that are co-mingled with the rest of a PAC’s funds and shuttled through a

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series of other PACs before reaching a candidate. But even assuming the

Commission is correct about the difficulty of tracking funds, the argument is selfdefeating: If disclosure laws will not help the public discern who gave money to

whom, then we are hard pressed to see how a candidate would identify an original

donor to create a risk of quid pro quo corruption. AMEC PAC suggests that a limit

on the size of transfers between PACs is another less restrictive alternative. The

Commission argues that such a limit would not work, because donors would simply

use more PACs. But if a limit were combined with anti-proliferation provisions, then

the feared loophole would be closed. We do not here decide the constitutionality of

these other, hypothetical laws that might be enacted, but the availability of less

restrictive alternatives contributes to our conclusion that the current provision is not

closely drawn. See Green Party of Conn. v. Garfield, 616 F.3d 189, 210 (2d Cir.

2010); Tucker v. State of Cal. Dep’t of Educ., 97 F.3d 1204, 1216 (9th Cir. 1996).

Taken together, the low risk of quid pro quo corruption stemming from PACto-PAC transfers, the existence of other campaign finance laws that facilitate

transparency, and the availability of less restrictive alternatives to the ban suffice to

show that § 23.3(12) is not closely drawn to serve a sufficiently important state

interest. We thus need not explore other concerns, such as whether the ban is overinclusive by prohibiting transfers between PACs that make only independent

expenditures, or under-inclusive by permitting transfers between state PACs and

federal PACs.

The district court properly enjoined enforcement of the transfer ban in its

entirety. The amendment violates the First Amendment as applied to PACs that

donate only to candidates and to PACs that both donate to candidates and make

independent expenditures. The Commission argues that § 23.3(12) does not apply to

PACs like FFEF that make only independent expenditures, but it is unnecessary to

address that point. A State does not have a sufficiently important interest in

preventing contributions to a PAC that makes only independent expenditures, see

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Citizens United, 558 U.S. at 357-60, so the provision must be enjoined in its entirety

whether or not it extends to this subgroup of PACs.

* * *

The judgment of the district court is affirmed.

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