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Yesterday the Missouri Supreme Court followed up its earlier campaign finance ruling with an opinion stating that campaign contributions over the limit must be returned to contributors. Mostly.

The Kansas City Star published the following summary in today’s edition [tiny URL]:

The Missouri Supreme Court on Monday ordered candidates to refund any oversized campaign contributions they accepted this year unless they could show such refunds would create a serious hardship.

The court ordered the Missouri Ethics Commission to give any candidate a hearing to show why refunding the money would be overly burdensome….

Jack Cardetti, Communications Director for the Missouri Democratic Party, issued the following press release:

Statement on Campaign Finance Ruling
Monday, August Date, 2007

“Today’s ruling is a victory for those Missourians who believe elections should be fought on a level playing field,” said Jack Cardetti, Missouri Democratic Party spokesman. “The Supreme Court and the Ethics Commission agree that this ruling should be applied retroactively. In the one instance where the court had all the available information, it determined that James Trout did not have a hardship and therefore retroactivity must apply. Therefore the Ethics Commission can now order refunds of contributions in excess of the limits unless individual candidates can prove that enforcing retroactivity ‘would be a hardship.’

“It will be hard for Matt Blunt to argue that returning $350,000 from the Swift Boat benefactors creates a hardship,” Cardetti said.

“Candidates who have not yet decided to challenge an opponent, will now be able to without the fear that they must play by a completely separate set of rules,” Cardetti said. “Most importantly, today’s ruling is a step in the right direction for anyone who wants to loosen the grip of special interest money on Missouri politics.”

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The Supreme Court opinion in James Trout, Appellant/Cross-Respondent, v. State of Missouri, et al., Respondents/Cross-Appellants. SC88476 starts [The document states: “This slip opinion is subject to modification until the Court has ruled on the parties’ motions for rehearing, if any, and will become final only after the Court issues its mandate.”]:

The campaign finance reform bill, H.B. 1900, became effective on January 1, 2007. James Trout filed suit challenging its constitutionality the following day. In its opinion of July 19, 2007, the Court found the removal of campaign limits could not be severed from the blackout provision that the trial court found to be unconstitutional. The Court invited interested parties to submit letter briefs as to the appropriate remedy, particularly whether the Court’s decision should be applied prospectively only…

The court tried to find a solution to the unfair advantage a candidate would have in garnering large contributions before the limits were reimposed over another candidate who had not yet started raising money or declared their candidacy after the limits were reimposed.

The law concerning whether a decision is given retroactive or prospective application is simple in theory. “An unconstitutional statute is no law and confers no rights. This is true from the date of its enactment, and not merely from the date of the decision so branding it.” State ex rel. Miller v. O’Malley, 117 S.W.2d 319, 324 (Mo. banc 1938); see also Norton v. Shelby County, 118 U.S. 425, 442 (1886).

That is, in general, the law is void from the day it was enacted, not the day the court found it invalid. If this does not create a hardship.

Moreover, no candidate’s campaign can be considered in a vacuum. It could create, rather than alleviate, hardship and injustice if only certain candidates who enjoyed periods of unlimited fundraising are granted prospective application of the Court’s July 19, 2007, opinion. Those candidates who have not yet or have only recently entered the field might have great difficulty matching the sums their opponents raised if they were subjected to campaign contribution limits that had not been applied to their opponents. It is well accepted that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money. . . . The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.” Buckley v. Valeo, 424 U.S. 1, 19 (1976). Such an uneven playing field raises obvious equitable and constitutional concerns. See Anderson v. Celebrezze, 460 U.S. 780, 802 (1983); see also Reynolds v. Sims, 377 U.S. 533, 564 (1964) (“[f]ree and honest elections are the very foundation of our republican form of government”). In balancing these variables in an election case such as this, one must endeavor to avoid doing so in a way that creates a political advantage for one candidate over another by virtue of the decision.

In the case of this particular statute, the balancing of hardships and the determination whether retroactive application would work an injustice is further complicated by the fact that this Court’s July 19 decision does not preclude the legislature from again enacting legislation lifting limits on campaign contributions. The Court invalidated the statute at issue in this case solely because it could not be severed from the blackout period the trial court found to be unconstitutional, rather than because a bill lifting contribution limits is inherently unconstitutional. Nothing in the July 19 decision precludes the legislature from enacting, in general or special session, new legislation that constitutionally lifts campaign limits entirely. Alternatively, it could enact new legislation that effectively reaffirms that campaign limits are in place because of the lack of a blackout period. Indeed, it would not be precluded from adopting more novel approaches in an effort to even the playing field, such as by enacting much higher campaign contribution limits or by enacting legislation that would impose contribution limits on a candidate only at such time, if any, as that candidate had reached the same level of contributions over permissible contribution limits as had other candidates for that office prior to this Court’s July 19 ruling. The Missouri Constitution commits any such decision to the discretion of the legislative branch.

The court stated that the General Assembly can do away with campaign contribution limits, but because the “blackout” provision [forbidding contributions while the General Assembly was in session] in the law in question could not be separated from the lifting of those limits, the court struck down the entire mess.

The opinion places the process for determining “hardship” squarely in the lap of the Missouri Ethics Commission:

Finally, and of key importance, is the fact that it is not this Court, but the Missouri Ethics Commission, that must initiate any enforcement action to require disgorgement of campaign contributions as to those not before this Court….If a candidate believes that retroactive application of the decision would be a hardship in his or her particular circumstances because he or she acted in good faith and in reasonable reliance and retroactive application would work an injustice, that candidate must develop with specificity what those circumstances are to the Missouri Ethics Commission. In considering these factors in particular cases or classes of cases, however, the Commission must ensure that it not become a vehicle for creating an uneven playing field for a particular office; to do so would itself create an undue hardship for and injustice to the other candidates for that office.

The Kansas City Star article continues:

….Nixon’s office said the decision “clears the way for the ethics commission to order refunds of contributions in excess of limits.”

Bob Connor, the Ethics Commission’s executive director, said the agency’s attorneys would present their recommendations and analysis to the full commission on Thursday. The commission might adopt policies to comply with the court ruling, Connor said.

But Connor said the ruling appears to require the agency to conduct a case-by-case review of every candidate for office. The agency will have to weigh each hardship that is claimed on all the other candidates in a race, he said.

“If X says, ‘I have a hardship for these reasons,’?” the commission will have to consider it, Connor said. The commission will then determine how that affects every person in the same race….

There will be plenty of campaign finance fodder for us to wade through as the implementation of this ruling takes place. As always, follow the money.