Group cites First Amendment in appeal of ban on its political ads

'restoring america' challenges assumptions in judge's order

bmusgrave@herald-leader.comOctober 19, 2011 

Gov. Steve Beshear spoke at the podium during an unveiling event at Woodford Co. High School in Versailles, Ky., on Wednesday, Aug. 24, 2011. Photo by Pablo Alcala | Staff

PABLO ALCALA | STAFF

FRANKFORT — An outside political group that has run television ads against Democratic Gov. Steve Beshear has appealed an order barring the ads from running in Kentucky, saying the ruling violated the group's First Amendment right to free speech.

Franklin Circuit Court Judge Thomas Wingate issued a restraining order on Monday after hearing arguments from the Kentucky Democratic Party. The order said Restoring America violated the state's campaign finance laws by not reporting its individual donors and banned the group from running advertisements that advocate for a candidate or a slate of candidates.

Wingate issued his restraining order on the same day that Restoring America released four TV ads attacking Beshear or supporting his chief rival, Republican Senate President David Williams. Those ads were no longer airing on Lexington television stations Tuesday evening.

Restoring America listed Restoring America Inc., known as a 527 group because of its federal tax identification, as its sole donor in state campaign finance reports. The filing did not say who gave more than $1.3 million to Restoring America Inc.

An advisory opinion issued by the Kentucky Registry of Election Finance earlier this year said organizations could not use "pass through" entities to hide the names of donors if the organization was created solely to raise funds for a specific campaign.

Douglas Hallock, a Louisville lawyer who represents Restoring America, argued in court documents filed with the Kentucky Court of Appeals on Tuesday that the Kentucky Democratic Party and Wingate assumed that Restoring America Inc. was solely created for the 2012 gubernatorial race.

The Kentucky Democratic Party's "assumptions are without evidentiary basis," Hallock wrote.

Restoring America also argues that the Kentucky Registry of Election Finance is the appropriate venue to determine campaign finance laws, not circuit court. Moreover, Restoring America was not given notice of the Monday hearing before Wingate, even though the Democratic Party filed documents with the court that contained Restoring America's contact information.

"A circuit court has no authority to impose such a restraint on core election speech, certainly not without notice and in clear contravention of the law," Hallock wrote.

Hallock did not immediately return phone calls seeking comment.

Restoring America asked that the restraining order immediately be dissolved, saying that even if it were determined that there were violations of state campaign finance law, there are other remedies available besides prohibiting free speech.

Meanwhile, attorneys for the Democratic Party and Restoring America are scheduled to appear in Franklin Circuit Court on Thursday for another hearing in the case, which has implications beyond the Nov. 8 election.

Democrats want Wingate to order Restoring America to name its donors and issue an injunction stopping the group from airing advertisements until Nov. 8.

In court documents filed in Franklin Circuit Court, Democrats argue that upon "information and belief" the major donor to Restoring America is Terry Stephens, Williams' father-in-law and owner of Stephens Pipe and Steel in Russell Springs.

Earlier this year, tax records showed that Stephens contributed $1 million to the Republican Governors Association a few weeks before the group's political action committee began running TV ads in support of Williams.

Efforts to reach Stephens for comment Tuesday night were unsuccessful. A spokesman for the Williams campaign declined to comment about Restoring America.

As an independent campaign committee, Restoring America does not have the same restrictions as a candidate's campaign committee.

Individual candidates can't accept money from corporations and individuals' contributions to them are capped at $1,000 per election, but corporations can give an unlimited amount to third-party committees, and there are no limits for individual donors.

Kentucky law does prohibit an independent campaign committee from coordinating its efforts with a candidate's campaign.

Democrats argued in court filings that if Stephens is Restoring America's sole contributor, that could mean that Restoring America and the Williams campaign are colluding or cooperating and therefore violating campaign finance law.

However, the Kentucky Registry of Election Finance said in 2008 that the fact that an independent committee and a candidate's campaign have similar donors does not prove that there is cooperation between the campaign and the committee.

To show coordination between an independent committee and a candidate there needs to be proof that the campaign discussed "the content, timing, placement, nature or volume of communications" with the committee, the registry said in 2008.

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