The treasurer of a political action committee is seeking $273,000 in attorneys’ fees and sanctions against the state ethics commission after successfully fighting a subpoena issued for him as part of a broad campaign finance investigation.
David Matthew Billingsley, treasurer of the Lift UP PAC, is asking a judge to award $75,125 in attorneys’ fees and another $198,482 in sanctions after a judge refused to allow the state ethics commission to enforce a subpoena against him.
The ethics commission’s budget in fiscal year in 2023 was about $722,000, including about $482,000 from the state general fund.
A hearing is set for Oct. 1.
The court filing accuses the ethics commission of carrying out a broad investigation of campaign finance in public view, playing favorites with Democrats and issuing subpoenas that were “staggeringly broad.”
The ethics commission has “issued dozens of stunningly broad subpoenas that had a massive impact on one side of the political aisle, stifling First Amendment activity, and costing hundreds of thousands of dollars in attorneys’ fees,” the lawyers for Billingsley tell the judge.
Billingsley’s lawyers say he’s entitled to the fees under a 2016 law intended to discourage lawsuits aimed at limiting free speech on matters of public interest.
Billingsley prevailed in his challenge of the subpoena under the law, which required ethics officials to show a likelihood of prevailing in their effort to get the court to enforce the subpoena.
In its response, the ethics commission said that the awarding of attorneys’ fees and imposing sanctions were not warranted.
“Claims for sanctions should not be made lightly, and yet defendant Billingsley offers little justification to substantiate this significant request,” the ethics commission argued in a filing.
The ethics commission said in court records that its ability to investigate cases in good faith would be impeded if the court awards attorney fees in this case.
The ethics commission’s “small budget limits its ability to investigate matters if a pervasive threat of attorney fees presents itself every time” the agency goes to court to enforce investigative subpoenas.
The commission says the judge ruled against the subpoena on constitutional grounds not because of the ethics commission’s conduct.
“Law enforcement officers are not penalized by having evidence excluded from consideration when the officer objectively and reasonably relied on a statute that is later held to be unconstitutional,” the commission said.
Similarly, the ethics commission said it shouldn’t be punished because it believed that the law was constitutional.
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.
In ruling against the subpoena, District Judge Teresa Watson found that the state law banning someone from making a campaign contribution in the name of another was unconstitutionally vague as applied in Billingsley’s case.
In arguing for the sanctions, Billingsley’s lawyers – Ryan Kriegshauser and Josh Ney – say the investigation targeted only Republicans while ignoring similar types of transactions carried out by the Kansas Democratic Party.
“This entire investigation has had the effect of publicly maligning certain individuals and organizations supportive of Republican candidates and interests, including the defendant,” Billingsley’s lawyers wrote in their brief.
For nearly three years, dozens of Kansans have lived under the “cloud of an ethics investigation,” the lawyers for Billingsley wrote.
“Our clients have operated businesses and engaged in core political activities under the ongoing threat posed by the weaponization of a government agency intent on selectively stifling political speech and freedom of association,” they wrote.
“During the course of 2022 to the present, subpoena recipients, including the defendant, have had to attempt to engage in political and business practices through major statewide election cycles with zero guidance from the (ethics commission) on what might have possibly been improper about their past activity and were left guessing about to how avoid future similar inquiries.”
In early 2022, the ethics commission issued subpoenas to dozens of people, including interns, political consultants, party officials, nonprofit organizations, and elected officials, as well as unsuccessful political candidates, the lawyers said.
“The subpoena recipients had no real indication of the legal basis of the investigation or why they were chosen, and the subpoenas were staggeringly broad and incredibly overburdensome,” the lawyers argued.
For two years, Billingsley’s lawyers said they have raised concerns about the vague nature of the “giving in the name another” statute and the ethics commission’s “evolving novel interpretations” of the law.
However, they say their concerns about the law have been met with “indifference” and “outright hostility.”
“Draining resources from one side of the political aisle through enforcement of unconstitutionally vague laws, when coupled with inaction and outright hostility toward public policy arguments advanced in the proper venue, is conduct that should be deterred in the future,” the lawyers argued.
While the ethics investigation was required by law to be kept confidential, the ethics commission staff carried out its work in public view, Billingsley’s lawyers said.
They said in early 2022 that the ethics commission’s Executive Director Mark Skoglund and his staff walked through the halls of the Capitol distributing the subpoenas to “unsuspecting targets.”
The “carpet bombing effect” of their actions “marching through the Capitol serving subpoenas” during the legislative session “doomed the possibility of a confidential investigation from the beginning.”
The ethic commission said the claims for sanctions are baseless and there is no conduct that needs to be deterred in the future.
“Because this investigation was made with the good faith belief that (campaign finance) violations occurred and that the…prohibitions were constitutional, there is no problematic conduct that occurred, and none that needs to be deterred.”
At the time the ethics commission filed its petition to enforce the subpoena, it said had no reason to believe that the giving-in-the-name-of-another statute was unconstitutional.
The only conduct that would be deterred by the sanctions would be good faith investigations into apparent campaign finance violations, the commission said.
