A battle over subpoenas of Kansas Republican officials is heating up. Here is what's at stake.
A Shawnee County judge Tuesday declined a request from the Kansas Governmental Ethics Commission to shield from the public hearings and documents related to a court tussle over subpoenas of top Republican Party officials.
The Ethics Commission in August went to court in a bid to compel the production of documents from seven individuals, essentially a move to enforce a series of previously issued subpoenas. The individuals targeted include former leaders in local Republican parties in Johnson, Sedgwick and Shawnee counties.
Attorneys for both sides Tuesday sparred over the fate of the attempt to enforce the subpoenas in court, the latest twist in the nine-month long saga, with the proceedings laying bare the core of the Ethics Commission investigation.
More:As Kansas Ethics Commission and lawmakers face off, some want changes to key campaign finance law
The cases regarding each of the seven individuals are at varying stages of adjudication, with the matter dismissed for some but ongoing for others.
Attorneys for some of the defendants, however, have sought to strike the Ethics Commission's court efforts under a state statute designed to crack down on lawsuits that are deemed to silence citizens.
Rumblings of a potentially wide-ranging investigation date back to the spring of 2022 and were blown open when a lobbyist for the Kansas Chamber, a top ally of Republican lawmakers, told reporters in April that organization staff have been contacted by the ethics commission.
That revelation came alongside an effort to oust the ethics commission's executive director, Mark Skoglund, ostensibly over concerns about his law license. That effort was later abandoned, and lawmakers denied there was any relationship to the ongoing investigation.
Subpoena shows Ethics Commission sought documents on potential campaign finance violations
Brett Berry, attorney for the Ethics Commission, said the body believed a series of political action committees gave to the Johnson, Sedgwick and Shawnee GOP groups with the intent of those entities passing those funds to the statewide party in a Republican Party that violates limits on donations.
Under state statute, a state party can only receive a maximum of $5,000 per year from political committee. County parties have a higher donation limit of $15,000 per year.
"These contributions, the way they’re done, doesn’t make a lot of sense to us as an investigative agency had there not been an effort to get around the contribution limits in statute," Berry said, adding later the contributions "would tend to be violations of the Kansas Campaign Finance Act."
A copy of the subpoena delivered to Cheryl Reynolds, chair of the 2nd Congressional District GOP, underscores the investigation centers on whether potential collaboration between top Kansas Senate and House lawmakers and staff, county Republican Party officials and political campaign consultants could have violated state campaign finance laws.
The document, approved by a unanimous vote of the Ethics Commission on Feb. 23, sought communications between Reynolds and a wide range of other individuals, including Senate President Ty Masterson, R-Andover, two current or former state senators, Shannon Golden, former chair of the Kansas Republican Party, and others.
The document specifically seeks materials related to a contributions and transfers to a number of groups and political action committees, notably the Right Way Kansas PAC for Economic Growth and Lift Up Kansas PAC, a pair of groups that campaign finance records show donated to Republican-aligned groups and campaigns in the last two election cycles. Both received donations from prominent Republicans, such as Wichita businessman Phil Ruffin, and a wide range of corporate entities.
It also notes contributions made by the Shawnee County Republican Party to two legislators, Rep. Dan Hawkins, R-Wichita and Sen. Gene Suellentrop, R-Wichita, as well as transfers to the Kansas Republican Party and a Shawnee consulting firm.
Subpoenas issued to other individuals sought similar materials, though there were slight differences in their exact contents.
T. Chet Compton, an attorney for five of the defendants, argued in the hearing Tuesday that the probe was part of an effort by the Ethics Commission to reimagine the state's campaign finance laws
Instead of issuing a public opinion on the matter, however, he argued they carried it out "through enforcement action and a massive dragnet investigation" that was "a fishing expedition."
The focus of the investigation, he said, is instead political consultant Jared Suhn, and Compton said it shouldn't impact a group of individuals he said haven't committed any wrongdoing.
"There can be no doubt that when the government comes calling for all of these private individuals' political communication, that has a chilling effect on their speech and their association," Compton said. "And that much is very clear."
But Berry said the individuals were subpoenaed because of the donations their groups made and that it doesn't trample on their free speech rights.
"We haven’t identified all of the possible targets," he said. "We don’t have enough info at this point to evaluate whether any of the defendants may be targets or whether there may be other individuals heretofore unknown to us that may be targets."
Ethics Commission thwarted in attempt to close hearings to public
A motion outlining the Ethics Commission's exact reasons for seeking the proceedings be closed to the public was filed under seal, though Berry said he believed the case ought to be closed in order to remain consistent with statutes confirming the confidentiality of commission probes.
"The two statutes read (in tandem) seem to leave an inescapable conclusion that our investigations are confidential by statute," Berry said. "I think that would provide the court with good cause to make the proceedings closed."
Watson disagreed, arguing she had "no grounds" to close the case.
"In the written submissions, I did not see much of a demonstration of any kind of safety, property or privacy interests or a public or private harm," Watson said in ruling from the bench. "In fact, given the subject matter of today's proceedings, I think the public interest is very, very strong in hearing what is being presented to the court today."
There are limited avenues under state law for court hearings or records to be closed to the public, as hearings are presumed to be open.
This can be changed only when a party can show "an identified safety, property or privacy interest of a litigant or a public or private harm that predominates the case" and can also prove that "such interest or harm outweighs the strong public interest in access to the court record and proceedings."
Max Kautsch, president of the Kansas Coalition for Open Government, said much was unclear about the case. But he argued any push to close the hearing and seal documents was objectionable, nonetheless.
"The judge found the interests of the litigants did not outweigh the interests of the public," he said. "And that's the way it should be."
Compton did not return a request for comment. But in a filing earlier this month, he said he would not oppose holding hearings behind closed doors and removing the case from the county court system's public access portal, as long as there was no attempt to institute a gag order on his client.
Still, he wrote the effort by the Ethics Commission was ironic as it "cannot un-ring the bell it intentionally already rung" by not immediately requesting the proceedings remain closed.
"While the Defendant prefers that this matter was not public, that ship has sailed and Defendant vehemently objects to the Motion if it in any way is attempt to now 'gag' the Defendant should these proceedings be reported in the media or to the extent the Motion is brought to inhibit any joint defense with similarly situated parties," Compton wrote in the Dec. 16 motion.
This article originally appeared on Topeka Capital-Journal: Judge declines to close hearing on Kansas Ethics Commission subpoenas
