A Shawnee County judge has refused to allow the state ethics commission to enforce a subpoena against the treasurer of a Republican-leaning political action committee as part of a lengthy investigation into alleged state campaign finance violations.
Shawnee County District Judge Teresa Watson denied a petition from the ethics commission seeking to enforce the subpoena against David Matthew Billingsley, treasurer for the Lift Up political action committee that donates mostly to Republican candidates.
Billingsley, of Topeka, once served as the chief of staff to former Revenue Secretary Sam Williams during former Gov. Sam Brownback’s administration.
Watson said in her ruling that the state law used as the basis for enforcing the subpoena was unconstitutionally vague.
Ethics officials have been looking at the Lift Up PAC as part of a broad investigation into whether political action committees allegedly gave money to Republican county parties that was in turn relayed to the state Republican Party to skirt campaign finance limits.
The ethics commission has been seeking information about contributions from the Republican State Leadership Committee in Washington, D.C., to the Lift Up PAC and the Right Way Kansas PAC during the 2020 elections.
The investigation has focused on whether there was a violation of a state law barring someone from making a campaign contribution in the name of another. The law also prohibits someone from knowingly taking a contribution made in the name of another.
Watson rejected the commission’s request to enforce the subpoena under a 2016 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.
A judge’s approval for the ethics commission to enforce an ethics subpoena was required under a new state law approved by the Legislature in 2023.
The subpoena submitted to the judge directed Billingsly to produce any and all written
communications, documents, and records that specifically included the words “Lift Up” when referencing an existing or planned political committee.
The subpoena also wanted documents regarding contributions from the Republican State Leadership Committee to Lift Up Kansas PAC or the Kansas Republican Party or the Republican House Campaign Committee.
It also sought documents related to contributions from Lift Up Kansas PAC to the Johnson County Republican Central Committee, the Shawnee County Republican Central
Committee and the Sedgwick County Republican Central Committee.
In ruling against the subpoena, Watson found that the state law banning someone from making a campaign contribution in the name of another was unconstitutionally vague as applied in the case of Billingsley and the Lift Up PAC.
Watson said the phrase “in the name of another” was a sticking point in the law.
“This phrase has not been judicially defined in Kansas, as it exists in this statute or any other that would be helpful to this analysis,” Watson wrote.
“Nor does this phrase have a settled meaning in Kansas law, notably in the context of modern campaign finance,” she wrote.
She added that there is no precision or guidance in the law sufficient to prevent arbitrary
or discriminatory enforcement of the statute.
Billingsley had argued the court should consider campaign contribution reports involving entities associated with the Kansas Democratic Party.
He said those reports show that the flow of campaign funds through various political entities has occurred and continues to regularly occur in Kansas politics.
The ethics commission said there were nuances in the activities of entities associated with the Kansas Democratic Party.
It said those nuances makes the Democratic contributions different than the ones in question and were acceptable under the law.
However, Watson said there might be a possibility of discriminatory enforcement given the vagueness in the law.
“Even without evaluating the merits of Billingsley’s claim of discriminatory enforcement by the (ethics commission), the parties’ arguments demonstrate that – given the lack of a detail about what is prohibited under the statute – uneven enforcement is a ‘real possibility,'” Watson said.
“There is not precision or guidance in the statute sufficient to prevent arbitrary or discriminatory enforcement,” she wrote.
Watson’s ruling on the constitutionality of the law only addresses how it’s applied in this case and not on a broader scale.
Lawyers for Billingsley praised the court’s ruling, saying it validates their claim that the ethics commission is taking a “shoot-first, educate-second” approach to applying the law.
“If there are unclear laws on the books, pass regulations, write advisory opinions, or issue other public guidance to give all political actors fair notice of what the law requires,” Josh Ney said.
“It’s time for the Legislature to clean up vague laws that, until recently, have given bureaucrats boundless discretion on what the law means.” Ney said.
Billingsley is now seeking attorney fees to cover his expenses in the case.
“Unelected bureaucrats should not be given free rein to churn attorney fees, time, and expenses against private citizens without consideration of our constitutional rights,” Billingsley said in a statement.
“Even the threat of investigation or enforcement is enough to make many people shut up and leave the political arena. I fought the commission in this action based on principle, and I am thankful to be vindicated by the court’s ruling,” he said.
Mark Skoglund, executive director of the ethics commission, declined to comment.
Court documents that the judge unsealed show that ethics officials were looking at contributions that the Lift Up Kansas PAC and The Right Way PAC for Economic Growth made to Republican parties in Johnson, Sedgwick and Shawnee counties.
Ethics officials said in court documents that $39,000 in campaign contributions can be traced from the Republican State Leadership Committee to the Kansas Republican Party.
They allege in those documents that $39,000 was donated directly as well as passed through the Lift Up Kansas PAC, The Right Way PAC for Economic Growth PAC and the Republican parties in Johnson, Shawnee and Sedgwick counties.
Th ethics commission said in court documents there was “reasonable suspicion” to believe that the Lift Up Kansas PAC, The Right Way Kansas PAC, and the Republican parties in Johnson, Shawnee and Sedgwick counties made and accepted contributions in excess of legal limits set by state law.
Ethics officials said in court documents that former House Speaker Ron Ryckman Jr. and his chief of staff organized the contributions from the Republican State Leadership Committee to the Right Way and Lift Up PACs.
Ryckman said in a text message that the ethics commission “withdrew their request of me to provide info into their investigation.”
Ethics officials said in court documents that their subpoena for Billingsley sought information about whether Ryckman violated a state law that prohibited legislators from establishing PACs.
However, Watson found that there was nothing in the ethics commission’s findings and conclusions that addressed whether Ryckman “established” a political committee.
“The findings and conclusions are insufficient to support an alleged violation… as an independent basis for issuance of the subpoena,” she wrote.
