“Disclosure, Not Suppression” – Sixth Circuit Clarifies Party Speech Rules in Boone County Republican Party v. Wallace

1. Introduction

The Sixth Circuit’s order in Boone County Republican Party Executive Committee v. Wallace (June 20, 2025) refuses en banc rehearing of a panel decision that had treated Kentucky’s “dual-committee” campaign-finance regime as a permissible disclosure system rather than an impermissible speech ban. Three county Republican executive committees (Boone, Hardin, and Jessamine) sued members of the Kentucky Registry of Election Finance (KREF) after KREF advised them that they could not spend existing party funds on ballot-measure advocacy unless they first registered a separate “political issues committee” (PIC). The litigation arrived on the Sixth Circuit’s doorstep in an emergency, pre-election posture, prompting a preliminary-injunction opinion (March 18, 2025, later reported at 132 F.4th 406) that split the panel and the full court alike. The June 20 order leaves that opinion intact—without full precedential weight, but with significant persuasive force—thereby crystallising a nascent rule:

New Principle: At least at the preliminary-injunction stage, a state may require political-party executive committees to channel ballot-initiative expenditures through a separately registered PIC so long as the regulatory burdens resemble ordinary disclosure obligations and do not demonstrably foreclose the party’s ability to speak.

Although labelled an “order,” the decision offers a trove of concurrences and a dissent that together map the doctrinal terrain between Citizens United and state-level disclosure schemes.

2. Summary of the Judgment

Procedural Posture: Petition for rehearing en banc following a divided panel decision on a preliminary injunction.
Disposition: Rehearing denied; less than a majority of active judges voted to rehear.
Key Holdings (from the underlying panel opinion that survives):
- Kentucky’s requirement that party executive committees form PICs to speak on ballot initiatives is, on the current record, akin to a disclosure mandate.
- The requirement does not amount to a categorical prohibition on speech because the committees remain free to speak once they comply.
- Strict scrutiny therefore does not automatically apply; exacting scrutiny or a Buckley-style disclosure analysis is the better fit.
- Because factual development is minimal and the 2024 election has passed, the case should proceed to discovery; the preliminary injunction was properly dissolved.

3. Analysis

3.1 Precedents Cited and Their Influence

Citizens United v. FEC, 558 U.S. 310 (2010) – The lodestar for corporate and associational political speech. Both sides spar over whether Kentucky’s rule is a disguised spending ban (Nalbandian dissent) or merely a disclosure requirement (panel majority).
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) – Quoted by Judge Moore to emphasise deciding only the case actually presented.
Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) & McConnell v. FEC, 540 U.S. 93 (2003) (both limited by Citizens United) – Cited by Judge Readler to illustrate how forcing groups to speak through segregated funds can be unconstitutional when burdensome.
Lower-court disclosure cases – e.g., Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011); provide support for the view that entity-registration requirements can survive exacting scrutiny when they do not compel creation of a separate association—distinction sharpened by Judge Readler.
Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021) – Sets “exacting scrutiny” for compelled disclosures; referenced by concurrence and dissent as the governing standard.

3.2 Legal Reasoning

The judges divide along two conceptual axes:

Characterisation of the Rule – Is Kentucky’s dual-committee system a spending ban (thus triggering strict scrutiny) or a disclosure regime (thus triggering exacting scrutiny)?
- Panel Majority & Judge Moore: Because the executive committees may still speak after registering a PIC, the rule merely discloses “who is speaking.” The burden appears modest: fill out forms, open a bank account, file reports.
- Judge Griffin (dissent at panel stage) & Judge Nalbandian (dissent from denial): Requiring new funds and a new entity severs the party from its general treasury and is therefore functionally identical to the corporate-PAC system condemned in Citizens United.
Burden Analysis – Even if the rule is “just disclosure,” how onerous is it in practice?
- Unsettled Facts: The record is thin. Key unknowns: Can pre-existing funds be transferred? Are joint mailers feasible? How high are compliance costs?
- Future Litigation: Judges Murphy and Readler signal willingness to revisit once discovery clarifies these burdens.

3.3 Impact and Prospective Significance

Short-Term: The denial leaves the panel opinion as the operative (though preliminary) interpretation in the Sixth Circuit, guiding district courts on similar injunction requests.
Long-Term:
- Provides a roadmap for states defending dual-committee structures: label them “disclosure” and document minimal burden.
- Signals that full appellate courts may postpone en banc intervention until factual records mature, even in high-stakes First Amendment disputes.
- Creates a potential circuit tension with the more robust reading of Citizens United in other venues; Supreme Court review remains plausible if a clear split emerges.
Practical for Political Parties: Executive committees in Kentucky (and perhaps elsewhere) must assume, for now, that using general funds for ballot-measure advocacy requires an ancillary PIC with separate books and filings.

4. Complex Concepts Simplified

Executive Committee – The county-level governing board of a political party; handles everyday finances and operations.
Political Issues Committee (PIC) – A single-purpose entity under Kentucky law that advocates for or against ballot questions and must file disclosure reports.
Disclosure vs. Spending Ban – Disclosure rules force speakers to reveal who is speaking; spending bans restrict what money can be spent (or whether speech can occur at all).
Exacting Scrutiny – Mid-level constitutional test: the government must show a “substantial relation” between the disclosure requirement and an “important” interest (usually transparency).
Strict Scrutiny – Highest constitutional hurdle: regulation must be narrowly tailored to serve a compelling interest; almost always fatal for speech bans.
Preliminary Injunction – Emergency court order that preserves the status quo pending final judgment; decisions are provisional and usually non-precedential.

5. Conclusion

By denying rehearing en banc in Boone County Republican Party v. Wallace, the Sixth Circuit leaves untouched—at least for now—a framework that treats Kentucky’s dual-committee requirement as a disclosure-oriented, constitutionally tolerable constraint on political-party speech. The court emphasises procedural modesty (limited record, post-election timing) over doctrinal grandstanding, yet the vigorous separate opinions highlight a live controversy: when does “mere disclosure” morph into a de-facto ban on using general treasury funds? Future factual development—and perhaps a subsequent election cycle—will determine whether the Sixth Circuit ultimately deems Kentucky’s system benign or whether it will, echoing Citizens United, strike it down as an impermissible burden on core political expression. Either way, the order serves as an important warning to litigants and legislators alike: the line between transparency and suppression is thin, and courts will scrutinise not just the labels affixed to a regulation but its practical effect on the ability of political actors to speak with the resources they already possess.