(Updated to include comment from lawyer for those challenging the subpoenas)
A Shawnee County judge has agreed to let the state ethics commission enforce a subpoena issued as part of a wide-ranging campaign finance investigation that appears to focus on contributions made to the state Republican Party.
Shawnee County District Judge Teresa Watson agreed that while portions of the subpoena were overly broad, she said other parts were reasonably relevant to the ongoing investigation and the request for information would likely be enforced in court.
Watson found that the ethics commission had established a likelihood that a court would grant at least a portion of its application for a subpoena in the case.
“The Court has concluded that (the ethic commission’s) findings of fact and conclusions of law articulate a reasonable suspicion of campaign finance violations,” she wrote.
However, she thought another part of the subpoena was an “unacceptably overbroad” request for information.
She said there was no limit on the subject matter sought and would cover information “far beyond what is reasonably relevant to the violations alleged.”
She said if an objection had been raised to that part of the request, it would have likely been upheld and the court would not have required a response.
Watson ruled in four different but similar cases brought by the Republicans.
Chet Compton, the lawyer for the former and current Republican leaders who challenged the case, said the judge’s ruling is one step in the process.
“I think it’s important to clarify what this decision did not say,” Compton said.
“The court is not ordering any of my clients to comply with the subpoenas,” he said. “It’s not even saying any of my clients are even suspected of a campaign finance violation.”
Compton noted that Watson gave the parties 10 days to schedule a status conference.
“We still get our day in court,” he said. “We didn’t get everything that we sought. We believe this is a step in the right direction.”
Compton said he will still get a chance to object to provisions questioned by the judge.
He agreed the subpoena could be enforced under the judge’s ruling but was optimistic that it won’t be when the case is done.
“We continue to believe that issuing incredibly broad subpoenas to private citizens based solely on their volunteer association with a local political group is worth opposing.”
The subpoena seeks information about contributions from the Republican State Leadership Committee in Washington, D.C., to two Kansas political action committees – The Right Way Kansas PAC for Economic Growth and the Lift Up Kansas PAC.
The Republican State Leadership Committee had zeroed in on nine seats in the Kansas House and five in the Kansas Senate during the 2020 elections.
It pumped $145,000 into the Kansans for Jobs and Opportunity PAC, which used that money to help Republican Rick Kloos in his upset of former Senate Minority Leader Anthony Hensley in 2020.
Formed in 2019, the Lift Up Kansas PAC was started by Matthew Billingsley of Topeka, who once served as the chief of staff to former Revenue Secretary Sam Williams during former Gov. Sam Brownback’s administration.
The Right Way PAC for Economic Growth’s treasurer is western Kansas businessman H.J. Swender.
The subpoena also seeks all communications and shared documents, including emails, texts and social media messages, related to financial transactions involving the Johnson, Sedgwick and Shawnee County Republican Parties as well as the Republican House Campaign Committee and the two political action committees.
The cases challenging the subpoenas were brought by Daniel Thorne, former chair of the Sedgwick County Republican Party; and Scott Bishop, former treasurer of the Sedgwick County Republican Party.
They also were contested by Cheryl Reynolds, former chair of the Shawnee County Republicans and treasurer of the state Republican Party; and Fabian Shepard, former chair of the Johnson County GOP.
In ruling on the case, the court opinion connects more dots about the focus of the ethics commission’s investigation.
In its findings and conclusions, the ethics commission asserted that the Republican State Leadership Committee gave $37,500 each to Lift Up Kansas PAC and The Right Way PAC on Aug. 31, 2020, and Sept. 1, 2020.
On Sept. 23. and Sept. 25, 2020, the PACs collectively gave $10,000 each to the Johnson, Sedgwick and Shawnee County Republican Parties, according to the court ruling.
Within days, most or all of the money was sent to the state Republican Party, according to the court opinion as it recounted the ethics commission’s case, according to the opinion.
On the same day the PACs gave to the party central committees, they also gave $5,000 to the state Republican Party.
The court opinion quoted the ethics commission’s findings:
“Given the consistency of the timing of all contributions at each stage including the nearly identical timing of funds passing through the central committees, the similar funding for both PACs, the substantial inactivity of the PACs, the quick turnaround of assets from one fund to the next, and the ultimate disposition of the assets in the state party committee that would have been an illegal overcontribution if directly contributed by the RSLC or the PACs individually, the scheme is apparent.”
While acknowledging that there is a low burden for reasonable suspicion, Watson agreed that the “existence, amounts, and timing of the contributions set forth in the (ethic commission’s) findings and conclusions give rise to a reasonable suspicion that a campaign finance violation occurred.”
She said that was reinforced by additional information submitted in the ethic commission’s brief, which included an affidavit detailing a Sept. 22, 2020, text from Jared Suhn, the contract consultant for the Republican House Campaign Committee, to the then-treasurer of the Johnson County Republican Party.
“If I have some PACs interested in contributing to the JCRP would JCRP then be willing to
contribute most of those resources to the KSGOP if asked,” the text states.
“The response was: ‘I’ll have you get in contact with Fabian (Shepard) to work that out. I don’t have as much discretion on decisions anymore.’”
Watson focused on one part of the subpoena in questioning whether it would pass legal muster.
That section of the subpoena that Watson said was too broad sought this information:
“From June 1, 2020, to December 31, 2020, all communications and shared documents, including but not limited to email, text, and social media messages, that are to, from, carbon copying or shared with” a number of individuals, named and unnamed, without limitation on the subject of the communication.
The challenge to the subpoena was based on a 2016 state law intended to discourage lawsuits aimed at limiting free speech on matters of public interest.
The law required ethics officials to show a likelihood of prevailing in their effort to get the court to enforce the subpoena.
The ethics commission argued the law only applied in the context of defamation claims or other “non-meritorious” civil suits.
The judge found that the 2016 law – known as them Public Speech Protection Act – applied in this case, although the ethics commission had met its burden by showing that it was likely to prevail on the claim by providing evidence to support its case.
In a request for attorneys’ fees, the ethics commission argued that the plaintiffs challenging the subpoena used the law to flush out “important investigatory details” only known to the agency.
The commission argued that a “signal must be sent to other similarly situated entities that the (law) cannot be used without risk to attempt to evade investigation, delay maters, or to force disclosure of significant investigatory facts.”
“First Amendment rights are among the most fundamental, this is recognized in the PSPA, and there is little or no Kansas case law to be applied to most of the legal arguments at play in the motion to strike.”
She said there was no indication that the motions to throw out the subpoenas were “frivolous or solely intended to cause delay.”
She denied the request for attorney fees and costs.