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Missouri law barring use of public funds on ballot measures survives challenge

From left, attorneys Eric Banks, Nicole Gorovsky and Mark Smith
Evie Hemphill
St. Louis Public Radio
From left, attorneys Eric Banks, Nicole Gorovsky and Mark Smith

In 2019, officials in various St. Louis County municipalities filed a lawsuit seeking to have a state law declared unconstitutional. The law held that public employees could face criminal charges if they contributed or expended public funds to “advocate, support, or oppose any ballot measure or candidate for public office.” The officials said that prohibition violated their First Amendment rights.

Cole County Circuit Court Judge Cotton Walker agreed, but the Missouri Supreme Court did not. In a unanimous opinion issued Feb. 15, the court ruled that the law wasn’t about the officials’ right to speech. It was about their right to spend public money — and that was no right at all.

Eric Banks, a former city counselor and state prosecutor now in private practice at Banks Law, said he was surprised the municipal leaders thought there was a case worth bringing. “I was intrigued by the lawsuit,” he said on Thursday’s St. Louis on the Air. “Political Science 101: You cannot use public funds to advocate a political position.”

Mark Smith, an attorney and former vice chancellor at Washington University, said judges understand that any infringement on First Amendment rights must survive strict scrutiny. So, he said, the lower court judge had carefully examined hypotheticals.

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“They started talking about different hypothetical situations where a person might be confused,” he said. “So [if] I'm an elected official, somebody writes me about a ballot proposition, and I want to respond to them on my work email — not advocating, but just responding — that might have some kind of chilling effect."

Even so, Smith said, the Missouri Supreme Court rejected that reasoning. They also rejected the idea that the law might be unconstitutionally vague.

Said Nicole Gorovsky, a former prosecutor now in private practice at Gorovsky Law, “Our legal jurisprudence says that as long as the statute uses everyday language that can be understood by a person of ordinary intelligence, the statue is not vague such that it violates the due process clause of the 14th Amendment.” The court felt strongly that the terms in the law qualified as “everybody language.”

As Smith noted, last year the Missouri legislature extended the state law to even more political subdivisions, including school boards.

The attorneys also discussed a federal lawsuit challenging Missouri’s barriers to accessing public benefits.

The lawsuit, filed earlier this week in the U.S. District Court in Kansas City, charges that the process to access the federal Supplemental Nutrition Assistance Program presents high barriers to applicants and violates their due process rights.

The lawsuit was filed by the advocacy group Empower Missouri. It alleges that people seeking SNAP benefits through the Missouri Department of Social Services faced as long as four to six hours on hold in order to schedule in-person interviews — and when they were unable to reach someone for that interview, their applications were rejected.

The attorneys agreed that the due process claim might be one of the weaker arguments in the suit — but that overall, the lawsuit builds a compelling case.

Gorovsky noted that the litigants are not asking for money, only for a declaratory judgment that policies and procedures need to change.

Smith agreed, saying the suit could get the state’s attention.

“I suspect this may be a case where somebody says, ‘Hey, what's going on in this department?,’ and they get their act together,” he said.

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Sarah Fenske served as host of St. Louis on the Air from July 2019 until June 2022. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.
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