Gerald Geier and Stop Now! v. Missouri Ethics Commission , 474 S.W.3d 560 ( 2015 )

SUPREME COURT OF MISSOURI
en banc
GERALD GEIER AND STOP NOW!, )
)
Appellants, )
)
v. ) No. SC94951
)
MISSOURI ETHICS COMMISSION, ET AL., )
)
Respondents. )
)
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
The Honorable Joel P. Fahnestock, Judge
Opinion issued November 24, 2015
Gerald Geier and the political action committee of which he was the treasurer,
Stop Now!, both appeal from the circuit court’s grant of summary judgment in favor of
the Missouri Ethics Commission in an action involving their challenge to the
constitutional validity of sections 130.021.4(1), 130.021.7, and 130.021.8, RSMo Supp.
2009, as well as sections 130.046.1, RSMo Supp. 2007, and 105.961.3, RSMo 2000.
This Court affirms the judgment.
I. Factual and Procedural Background
From 1991 to 2012, Gerald Geier, a certified public accountant, was the treasurer
of Stop Now!, a Missouri political action committee (PAC) that engaged in issue
advocacy opposing ballot initiatives that would raise taxes. He was required to register
the PAC with the Missouri Ethics Commission (MEC), the agency responsible for
administering Missouri’s campaign finance disclosure laws. Geier completed a
“Statement of Committee Organization” form, which named him as the treasurer and
required him to identify the PAC’s bank account. Stop Now! became inactive after 2003.
The bank closed the account in 2006 after routine fees depleted the account to zero. Stop
Now! did not notify the MEC of the account’s closure as required by section 130.021.7,
RSMo Supp. 2009.
Stop Now!, however, remained a registered PAC and, from 2004 to 2010,
continued to file the quarterly disclosure reports required by sections 130.041.1, RSMo
2000 and 130.046.1, RSMo Supp. 2007 indicating that it had no money and was engaging
in no activity. 1 When Stop Now! failed to file reports for the first three quarters of 2011,
the MEC opened an investigation. Geier subsequently filed the overdue reports along
with a “Committee Termination Statement,” indicating the dissolution of Stop Now!.
The MEC filed a formal complaint against Geier and Stop Now!, alleging they
violated section 130.046.1, RSMo Supp. 2007 by failing to timely file disclosure reports
in 2011 and violated sections 130.021.4(1) and 130.021.7, RSMo Supp. 2009 for failing
to maintain a bank account or notify the MEC of changes to the account. The MEC held
a hearing on the complaint, which was closed to the public pursuant to section 105.961.3.
1
Because by this point Stop Now! was inactive, these required quarterly filing obligations could
be met by filing a “Committee Statement of Limited Activity” certifying that the PAC’s receipts
and expenditures did not exceed $500 for the reporting period. Section 130.046.3, RSMo Supp.
2007.
RSMo 2000. It found probable cause that Geier and Stop Now! unknowingly violated
the applicable statutes due to the delinquent disclosure reports and failure to timely file a
termination statement after the bank account was closed. The MEC issued a letter to
Geier stating that no further action would be taken. 2
Geier appealed the MEC’s probable cause determination to the Administrative
Hearing Commission (AHC) on behalf of himself and Stop Now!. He admitted the
statutory violations, arguing instead that the reporting statutes were unconstitutional as
applied because Stop Now! had been inactive prior to commencement of the enforcement
action. He also challenged the constitutional validity of section 105.961.3, RSMo 2000,
the provision under which the MEC’s enforcement hearing was closed to the public.
Finally, Geier argued that, if violations occurred, they must be attributed to Stop Now!
and not to him either personally or in his official capacity as treasurer. The AHC granted
summary decision on all counts in favor of the MEC.
Geier next sought judicial review in the circuit court pursuant to section 536.110,
RSMo 2000. He raised each of the claims asserted at the AHC and asserted new claims.
In addition to the “as applied” constitutional challenges to the reporting statutes, he also
challenged the statutes facially, seeking declaratory and injunctive relief barring
2
While the MEC action was pending, Geier brought suit in federal court, arguing the
enforcement action violated the First Amendment to the United States Constitution and seeking
declaratory and injunctive relief. The district court abstained under the Younger doctrine, which
states that federal courts should not exercise jurisdiction when (1) there is an ongoing state
proceeding, (2) important state interests are involved, and (3) there is an adequate opportunity to
raise the federal questions in the state proceeding. Plouffe v. Ligon, 606 F.3d 890, 892 (8th Cir.
2010). The Eighth Circuit affirmed. See Geier v. Mo. Ethics Comm’n, 715 F.3d 674 (8th Cir.
2013).
3
enforcement of the statutes against similarly situated inactive PACs. Finally, he
supplemented the constitutional challenges with claims under 42 U.S.C. §§ 1983 and
1988. The circuit court granted summary judgment in favor of the MEC. Geier appeals. 3
II. Standard of Review
This is an appeal from the circuit court’s review of the AHC’s grant of summary
decision in favor of the MEC. Typically, in an appeal from an agency-tried case this
Court reviews the decision of the agency and not the circuit court. Garozzo v. Mo. Dep’t.
of Ins., Fin. Inst. & Prof’l Registration, Div. of Fin., 389 S.W.3d 660, 663 (Mo. banc
2013). Here, however, the circuit court was the first to rule on the bulk of Geier’s
constitutional claims because the AHC cannot declare a statute unconstitutional. Cf.,
State Tax Comm’n v. Admin. Hearing Comm’n, 641 S.W.2d 69, 75-76 (Mo. banc 1982).
Additionally, Geier’s §§ 1983 and 1988 claims were not presented to the AHC.
Rulings were entered in favor of the MEC before both the AHC and the circuit
court. The circuit court decided only questions of law, and there were no factual
disputes. Regardless of whether this Court reviews the AHC’s decision or the circuit
court’s judgment, the standard of review is the same. The propriety of summary
judgment is an issue of law entitled to de novo review. Floyd-Tunnell v. Shelter Mut. Ins.
Co., 439 S.W.3d 215, 217 (Mo. banc 2014). Additionally, both the constitutional validity
of a statute and an agency’s interpretation and application of a statute are subject to de
3
This Court has exclusive jurisdiction of the appeal because the case involves the constitutional
validity of Missouri statutes. MO. CONST. art. V, sec. 3.
4
novo review. State v. Young, 362 S.W.3d 386, 390 (Mo. banc 2012); Algonquin Golf
Club v. State Tax Comm’n, 220 S.W.3d 415, 418 (Mo. banc 2007).
III. Analysis:
A. The Reporting Statutes Are Constitutional As Applied
Before turning to Geier’s constitutional challenge, a review of Missouri’s
Campaign Finance Disclosure laws as well as First Amendment jurisprudence in the area
of campaign finance regulation is helpful. Missouri’s Campaign Finance Disclosure Law
defines a “PAC” as
a person or any combination of persons, who accepts contributions or
makes expenditures for the primary or incidental purpose of influencing or
attempting to influence the action of voters for or against the nomination or
election to public office of one or more candidates or the qualification,
passage or defeat of any ballot measure . . . .
Section 130.011(7), RSMo Supp. 2007. Every committee qualifying as a PAC must have
a treasurer and must maintain a bank account in Missouri. Sections 130.021.1,
130.021.4(1), RSMo Supp. 2009. Each PAC must also file a statement of organization
listing contact information for the treasurer, candidate and officers (if applicable), as well
as the name of its bank and account number. Section 130.021.5, RSMo Supp. 2009. The
statement of organization must be amended if any of the listed information changes.
Section 130.021.7, RSMo Supp. 2009. The treasurer is also required to file regular
disclosure reports detailing all receipts and expenditures. Section 130.041.1, RSMo
2000. Reports must be made each calendar quarter in which contributions or
expenditures exceed $500. Section 130.046.3, RSMo Supp. 2007. If contributions or
expenditures are less than $500, a PAC may meet its reporting obligation by filing a one-
5
page “Committee Statement of Limited Activity.” Finally, when a PAC dissolves, a
termination statement must be filed no later than 10 days after the date of dissolution.
Section 130.021.8, RSMo Supp. 2009.
Geier and Stop Now! do not dispute that they violated the campaign finance laws
by failing to maintain a bank account after 2006, failing to amend the statement of
organization after the bank account was closed, failing to file quarterly reports for the
first three quarters of 2011, and failing to timely file a termination statement. Instead,
Geier argues that sections 130.021.4(1), 130.021.7, 130.021.8, RSMo Supp. 2009, and
section 130.046.1, RSMo Supp. 2007 (collectively “the reporting statutes”) violate the
First Amendment to the United States Constitution “as applied” to Stop Now!, a PAC
that had been inactive for several years prior to the MEC’s enforcement action.
The First Amendment prohibits laws “abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble . . . .” U.S. CONST. amend. I. The
United States Supreme Court has held that campaign finance regulations operate in the
most fundamental of First Amendment activities because they limit expression and
associational rights related to the discussion of public issues and candidates for public
office. Buckley v. Valeo, 424 U.S. 1, 14 (1976). The Supreme Court has distinguished
laws that limit speech by restricting “the amount of money a person or group can spend
on political communication” from disclosure regulations which, though they burden the
ability to speak, “impose no ceiling on campaign-related activities.” Citizens United v.
Federal Election Comm’n, 558 U.S. 310, 339, 366 (2010).
6
Regulations that limit speech are subject to “strict scrutiny,” which requires the
government to prove that the regulation furthers a compelling interest and is narrowly
tailored to achieve that interest. Id. at 340. Disclosure and reporting requirements, on the
other hand, are subject to “exacting scrutiny.” Id. at 366. “Exacting scrutiny” is a lesser
standard, requiring that the government establish a “substantial relation” between the
regulation and a “sufficiently important” interest. Id. The reporting statutes here are
disclosure requirements, and exacting scrutiny applies. To withstand exacting scrutiny,
“the strength of the governmental interest must reflect the seriousness of the actual
burden on First Amendment rights.” John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010).
Buckley states that disclosure and reporting requirements directly serve substantial
governmental interests. 424 U.S. at 68. The Buckley Court explained that there are at
least three categories of sufficiently important interests that can justify such regulations.
Id. at 66-68. The first interest is informational—the need to provide the electorate with
information about the sources of election-related spending. Id. The second is to “deter
actual corruption and avoid the appearance of corruption by exposing large contributions
and expenditures to the light of publicity.” Id. The third interest is in the “gathering of
data necessary to detect violations of [other campaign finance laws].” Id. 4 Geier argues
4
Geier suggests that the governmental interests identified by Buckley may no longer be valid
under more recent precedent from the Supreme Court. He cites McCutcheon v. Federal Election
Comm’n, in which the Court recognized that there is only one legitimate governmental interest
for restricting campaign finances: “preventing corruption or the appearance of corruption” and,
in particular, quid pro quo corruption. 134 S. Ct. 1434, 1450 (2014). Geier argues that, because
there is no risk of this type of corruption by an issue PAC, the State cannot identify a sufficiently
important interest to justify the reporting statutes. His reliance on McCutcheon is misplaced.
The statutes at issue there were campaign contribution limits, not disclosure and reporting
regulations. As highlighted by the different degrees of scrutiny, the interests underlying
7
that the reporting statutes are unconstitutional as applied to himself and Stop Now!. He
asserts that in the unique context of an inactive PAC – a PAC that is no longer
“speaking” – the State either has no interest to justify required disclosure and reporting,
or that its interest is so diminished as to be outweighed by the burden placed on First
Amendment rights. He asks this Court to declare that he and Stop Now! committed no
violations of Missouri law. To determine whether the reporting statutes withstand
exacting scrutiny, this Court must examine the State’s interests in the statutes, assess
whether the statutes are substantially related to those interests, and look to the unique
burden the statutes placed on Geier and Stop Now!.
It first must be noted that the governmental interests outlined in Buckley v. Valeo
are narrower in the context of disclosure and reporting regulations when applied to an
“issue PAC” as opposed to a PAC supporting or opposing a candidate for office. In the
case of a ballot initiative, there is no “risk of quid pro quo corruption present when
money is paid to, or for, candidates.” Buckley v. Am. Constitutional Law Found., Inc.,
525 U.S. 182, 203 (1999). Assuming that Stop Now! was truly an “issue PAC” speaking
only about tax-related ballot initiatives, 5 the reporting statutes here must be justified by
(1) the State’s interest in gathering data to detect other violations of campaign finance
laws and/or (2) the informational interest: “the need to provide the electorate with
regulations of campaign spending and regulations requiring disclosure and reporting are
different. McCutcheon did nothing to erode the governmental interests for disclosure regulations
outlined in Buckley and, in fact, cited them favorably. 134 S. Ct. at 1459.
5
Geier admits that, though Stop Now! was primarily an “issue PAC,” it at least once engaged in
direct support of a candidate for office.
8
information about the sources of election-related spending.” Buckley v. Valeo, 424 U.S.
at 66-68.
Missouri’s broad interests in preserving the integrity of the election process . . . are
significant, compelling and important. Weinschenk v. State, 203 S.W.3d 201, 217 (Mo.
banc 2006). The MEC serves the public interest by enforcing Missouri election law in a
nonpartisan and transparent manner to provide the electorate with accountability as to the
source of political speakers. The MEC has an interest in enforcing Missouri’s campaign
finance laws and providing the public with information and accountability about how
money is spent in elections and on issue advocacy. These interests comport with
Buckley. Geier, however, argues that even if this is true as applied to PACs generally, the
State does not have a real interest in the disclosure and reporting of Stop Now!, a PAC
that had been financially dormant for several years before its bank account was closed
and for nearly a decade before the MEC opened its investigation.
In support of his contention that the State has insufficient interest to justify
enforcing the reporting statutes against an inactive PAC, Geier primarily relies on
Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012). In
that case, Minnesota business entities challenged the independent expenditure and
reporting provision of Minnesota’s campaign finance law. Id. at 867-68. The provisions
applied to all “associations,” defined as “group[s] of two or more persons, who are not
members of the same family, acting in concert.” Id. The law required all associations to
make indirect expenditures through a PAC or through an “independent expenditure
political fund.” Id. at 868. Once formed, an “independent expenditure political fund”
9
was subject to ongoing reporting requirements, and if the fund was inactive during a
reporting period, it was required to file a statement of inactivity. Id. at 869. The Eighth
Circuit held that the independent expenditure and reporting requirements were likely
unconstitutional. Id. at 877. 6 In particular, the court noted that the ongoing reporting
requirement chilled speech because it forced any association, no matter how small, to
decide whether exercising its constitutional right was worth navigating the regulatory red
tape. Id. at 873. It also found that Minnesota could accomplish its goals through less
burdensome measures. Id. at 876-77.
On its face, Minnesota Citizens does not apply to this case. The Eighth Circuit
specifically excluded PACs from its analysis, reversing the lower court’s denial of a
preliminary injunction “to the extent it requires ongoing reporting requirements from
associations not otherwise qualifying as PACs under Minnesota law.” Id. at 877. It
stated that its holding did not affect Minnesota’s regulation of PACs and that associations
“whose major purpose is to influence the nomination or election of a candidate or to
promote or defeat a ballot question would still comply with the same essential
requirements because they are political committees.” Id. at 877 n.11. Here there is no
question that Stop Now! was a PAC. As such, the unconstitutional reporting
requirements applying to “associations” in Minnesota Citizens do not similarly apply to
Stop Now!, and that case does not render the reporting statutes here unconstitutional.
6
Part of the problem in Minnesota Citizens was that the Minnesota law, which required any
association to speak through a political fund, imposed virtually identical regulatory burdens on
political funds as it did on PACs. 692 F.3d at 872. Under Citizens United, corporations cannot
be forced to “speak” through a PAC. 558 U.S. at 337-38.
10
Apart from Minnesota Citizens, Geier offers no authority for the proposition that
the State has no interest in receiving disclosure reports from inactive PACs. He argues
that there can be no sufficiently important State interest in disclosure by a speaker
potentially capable of speech, but not actually engaged in speech or other related activity
by way of accepting contributions or making expenditures. Stop Now!’s inactivity,
however, does not alter the State’s interest in enforcing the reporting statutes, and Geier’s
contention that a PAC cannot be required to file a report if it has not accepted
contributions or made expenditures misunderstands those interests. The State’s interests
in providing information and accountability to the public, as well as enforcing Missouri’s
campaign finance laws, would be frustrated if a PAC could file nothing with respect to its
activities during a reporting period. Otherwise, the MEC would be forced to continually
sift through each PAC that did not file disclosure reports to determine which were
shirking their disclosure obligations and which were merely inactive. The MEC had no
way of knowing, absent a termination statement, that Stop Now! had effectively
dissolved. Stop Now! remained a registered Missouri PAC, capable of becoming active
and “speaking” again at any time. Stop Now!’s inactivity did not diminish the State’s
interest in disclosure and reporting.
Having found that the State’s interests in the reporting statutes are sufficiently
important, even in the case of an inactive PAC, this Court turns to the reporting statutes
and finds they are substantially related to those interests. Section 130.046.1, RSMo
Supp. 2007 requires PACs to file quarterly reports disclosing contributions and
expenditures, which the MEC is responsible for reviewing and, if necessary, conducting
11
an audit or investigation. Section 105.959.1, RSMo Supp. 2007. Tracking funds
distributed among multiple accounts and banks would be time-consuming and costly.
Sections 130.021.4 and 130.021.7, RSMo Supp. 2009, which require PACs to maintain a
single account in Missouri and notify the MEC of any changes, allow the MEC to
efficiently investigate violations of the campaign finance disclosure laws. For similar
reasons, section 130.021.8, RSMo Supp. 2009, which requires PACs to timely file a
termination statement after dissolution, is substantially related to the State’s interests
because it requires PACs to notify the MEC that they no longer exist and provide the
MEC with the information about the disposition of remaining funds and debts it needs to
perform a final audit. In other words, the statutes serve the State’s interests by allowing it
to track where the money is being spent – or, in Stop Now!’s case – where it was spent.
Finally, the Court turns to the burden placed on Geier and Stop Now!’s First
Amendment rights by the reporting statutes. Geier argues that the statutes imposed
“overly burdensome reporting requirements,” both in determining what is required under
the statutes and in making the required disclosures. The record, however, does not
indicate that Geier did not understand the requirements of Missouri’s campaign finance
disclosure laws. On the contrary, he complied with the quarterly reporting requirements
for nearly two decades. There is no evidence in the record that, during that period, he
ever complained that the obligation was too burdensome. Rather, Geier stated that the
reporting stopped, not because of any burden, but because “life goes on, people have
things to do, and no activity occurred.”
12
The relevant reporting and disclosure requirements were not overly burdensome.
The “Committee Statement of Limited Activity,” which satisfies a PAC’s reporting
requirement under section 130.046.1, RSMo Supp. 2007 for quarters where contributions
or expenditures are less than $500, is a one-page form requiring limited information and
may be filed electronically. Similarly, sections 130.021.4(1) and 130.021.7, RSMo Supp.
2009, which required Stop Now! to maintain a Missouri bank account and amend its
statement of organization of any changes to that account, are not overly burdensome.
The statement of organization is a one-page document and the record reflects that, prior
to the MEC’s enforcement action, Geier completed both Stop Now!’s initial statement of
organization and an amended statement. Finally, Stop Now! was not overly burdened by
the requirement of section 130.021.8, RSMo Supp. 2009 that a termination statement be
timely filed upon a PAC’s dissolution. The termination statement requires a final
accounting of the PAC’s finances and contact information for the person responsible for
its records. This merely required Geier to provide information he was already required
by law to keep. Furthermore, the termination statement would have relieved Geier of the
ongoing reporting requirements of which he now complains.
In sum, the reporting statutes are substantially related to the State’s sufficiently
important informational, accountability, and enforcement interests. They “impose no
ceiling on campaign-related activities” and “do not prevent anyone from speaking.”
Citizens United, 558 U.S. at 366. Further, they imposed no more than a minimal burden
on Geier and Stop Now!’s First Amendment rights. On balance, the statutes meet
exacting scrutiny, and judgment was proper in favor of the MEC.
13
B. Geier’s Facial Challenges Are Not Ripe
Geier not only challenges the reporting statutes as applied to him and Stop Now!,
but also challenges them facially, seeking declaratory and injunctive relief preventing
enforcement of the statutes against any hypothetical similarly dormant PACs or their
treasurers. The MEC contends that his claim triggers justiciability concerns. A
justiciable controversy requires standing and ripeness. Schweich v. Nixon, 408 S.W.3d
769, 773-74 (Mo. banc 2013). To have standing, a party must have a personal stake
arising from a threatened or actual injury. Id. at 774. Even when a party has standing,
however, the claims must also be ripe, which requires the dispute to be “developed
sufficiently to allow the court to make an accurate determination of the facts, to resolve a
conflict that is presently existing, and to grant specific relief . . . .” Id. A claim is not
ripe for adjudication if it “rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300
(1998).
Standing and ripeness, often closely related, are both implicated here because
Geier seeks relief on behalf of others not before this Court and in future circumstances
not certain to occur. However, he offers no evidence of any such similarly situated PAC.
He also has not pointed to any future plans of his own to become treasurer of a PAC that
becomes inactive after many years without formally dissolving. Geier argues that in the
First Amendment context, standing and ripeness requirements are relaxed because of the
potential “chilling” effect on speech—a judicial assumption that a statute's very existence
14
may cause others not before the court to refrain from constitutionally protected speech or
expression. State v. Vaughn, 366 S.W.3d 513, 518 (Mo. banc 2012).
Geier contends there is a sufficient record of chilling in this case to establish
standing and ripeness. He asserts that enforcement of the reporting statutes has chilled
his own political speech in that he fears engaging in future speech potentially subject to
the MEC’s regulation because “it may be too expensive and burdensome for me to bear.”
He argues that the regulatory burden will prevent him from serving in the future as
treasurer of a PAC. He also states that Stop Now! “terminated itself out of existence
rather than remain merely dormant because of the chilling effect of the enforcement
action itself.” Geier’s assertions of chilling, though possibly relevant to standing if
credited, do not address the ripeness of a pre-enforcement challenge to the reporting
statutes on behalf of either hypothetically inactive PACs or Geier himself as a future PAC
treasurer. This Court holds such claims for declaratory and injunctive relief are not ripe
for review. Judgment was proper on behalf of the MEC.
C. Section 105.961.3 Does Not Violate the First Or Sixth Amendments
Geier next argues that section 105.961.3, RSMo 2000, the statute that requires the
MEC’s hearings be closed to the public, violates the First and Sixth Amendments to the
United States Constitution both facially and as applied. He contends that the hearing,
which was closed over his objection, violated his and Stop Now!’s rights, as well as the
rights of the public and the news media. He seeks declaratory and injunctive relief
barring all closed door hearings under section 105.961.3, RSMo 2000. To address this
claim, it is necessary to review what actually occurred before the MEC in this case.
15
The MEC is an administrative body established to administer and enforce ethics-
related laws, including the campaign finance disclosure provisions. Impey v. Mo. Ethics
Comm’n, 442 S.W.3d 42, 44 (Mo. banc 2014). The MEC is authorized to receive
complaints alleging violations of any of the campaign finance disclosure laws. Section
105.957.1(3), RSMo Supp. 2007. The MEC here, after investigation into Stop Now!,
determined that there were reasonable grounds to believe that non-criminal violations of
the campaign finance disclosure laws had occurred. Because the suspected violations
were non-criminal, the MEC conducted a hearing which, pursuant to section 105.961.3,
RSMo 2000, “shall be a closed meeting and not open to the public.” (emphasis added).
After the closed hearing, the MEC determined there was probable cause that a violation
had indeed occurred. Subsequently and pursuant to section 105.961.4(5), RSMo 2000,
the MEC issued a letter to Geier indicating that he violated the law and that no further
action would be taken. Despite Geier’s contrary assertions, the hearing under section
105.961.3, RSMo 2000 did not (and could not) have led to criminal penalties. 7 This
conclusion is fatal to Geier’s Sixth Amendment argument because, by its terms, the Sixth
Amendment’s right to a public trial applies only to criminal proceedings.
The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . .” U.S. CONST. amend. VI. Geier
argues that, though the closed hearing appeared civil, in reality it was criminal or quasi-
7
After the MEC found probable cause of violations of the law, under section 105.961.3, RSMo
2000 it could have referred the case to an “appropriate disciplinary authority,” which could have
conducted its own proceedings See Impey, 442 S.W.3d at 45. When no such referral takes place,
the MEC may take action on its own and notify the alleged violator of its proposed action. Id.
That is what occurred here, and the MEC notified Geier that it would take no further action.
16
criminal. This is unsupported by the record. The purpose of the hearing was to
determine whether there was probable cause to believe that Geier and Stop Now!
violated the reporting statutes. See Impey, 442 S.W.3d at 45 (noting that, under section
105.961, RSMo 2000, the MEC’s purpose is “to determine whether a particular
complaint is worth pursuing.”). At no point were Geier or Stop Now! exposed to
criminal liability under section 105.961.3, RSMo 2000. The closed hearing was not
criminal or quasi-criminal. Under the Sixth Amendment, section 105.961.3, RSMo 2000
is valid both facially and as applied.
Geier also argues that the closed hearing held pursuant to section 105.961.3,
RSMo 2000 violated his, Stop Now!’s, the news media’s, and the general public’s First
Amendment rights. 8 The First Amendment provides a qualified right for the news media
and general public to attend criminal trials and proceedings. Globe Newspaper Co. v.
Super. Ct. for Norfolk Cnty., 457 U.S. 596, 603 (1982). The MEC’s closed hearing,
however, was not a criminal proceeding. Though some federal courts have amplified the
First Amendment right of access beyond the context of criminal proceedings, 9 Geier cites
no authority for the proposition that the First Amendment guarantees the public and the
news media access to an investigative proceeding whose purpose is to determine whether
there is probable cause that a non-criminal violation of the campaign finance disclosure
8
The record is silent as to whether a member of the public or the news media sought entry to the
hearing, and Geier admits that he does not know of a citizen or reporter who was turned away.
9
See, e.g., In re Iowa Freedom of Info. Council, 724 F.2d 658, 661 (8th Cir. 1983) (First
Amendment right of access applies to contempt proceedings, which are “a hybrid containing
both civil and criminal characteristics.”).
17
law occurred. Section 105.961.3, RSMo 2000 does not violate the First Amendment
facially or as applied to Geier and Stop Now!.
Section 105.961.3, RSMo 2000 is valid under the First and Sixth Amendments,
and judgment was properly entered in favor of the MEC.
D. The MEC Had Authority To Investigate Geier
Finally, Geier challenges the MEC’s authority to attribute violations of the law to
a PAC’s treasurer. In this case, the MEC’s order stated that there was probable cause to
believe that “Respondents Geier and Stop Now! violated, and have violated, [the
reporting statutes].” Further, the letter the MEC issued to Geier following the closed
hearing stated that Geier violated the reporting statutes in his “capacity as Treasurer of
Stop Now! Continuing Committee.” Geier argues the law is ambiguous as to the MEC’s
authority in this regard and seeks a declaration that, if there was a violation of the
reporting statutes, the violation may only be attributed to Stop Now! and not to Geier
either personally or in his capacity as treasurer of Stop Now!.
The reporting statutes at issue are within chapter 130. Section 130.058, RSMo
2000 provides that “[t]he candidate or the committee treasurer of any committee except a
candidate committee is ultimately responsible for all reporting requirements pursuant to
this chapter.” Under this section, Geier was responsible for Stop Now!’s reporting
obligations because he was its treasurer at all relevant times. He admits he violated the
reporting statutes. The MEC had authority, pursuant to section 130.058, RSMo 2000, to
18
investigate Geier individually for these violations on account of his responsibility as
treasurer. 10
In the alternative, Geier argues that, if the treasurer may be held liable, it must be
in official capacity only. The MEC’s letter of “no further action,” plainly stated that
Geier violated the reporting statutes “in [his] capacity as Treasurer of Stop Now! . . . .” It
is unclear then, what Geier asks this Court to do in this regard, as the MEC determined
that the violations of the reporting statutes were committed in his official capacity.
Further, there were no monetary penalties assessed for which Geier could have been
liable. Judgment on this claim was properly entered in favor of the MEC.
IV. Conclusion
The judgment of the circuit court is affirmed. 11
___________________________
Mary R. Russell, Judge
All concur.
10
Geier argues that section 130.058, RSMo 2000 is ambiguous in light of section 105.963.1,
RSMo Supp. 2007, a provision detailing the MEC’s framework for assessing late fees against
PACs that fail to comply with reporting obligations. This is irrelevant, as it is undisputed that
the MEC did not fine Geier or Stop Now!.
11
Geier also argues that the circuit court erred in denying summary judgment on his federal
claims under 42 U.S.C. §§ 1983 and 1988, which supplemented his various constitutional
challenges. There is no question that the claims were properly brought, but, as previously
discussed, Geier has failed to establish a violation of his or Stop Now!’s constitutional rights.
Judgment was properly entered in favor of the MEC on the §§ 1983 and 1988 claims.
19