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Attorney who tried federal campaign-finance case warns of overbroad enforcement, subpoenas and constitutional risk
Summary
Attorney Josh Nye told the committee that recent KGEC enforcement practices have chilled First Amendment activity, cited recent court rulings that found aspects of the PAC and conduit-contribution rules unconstitutional as applied, and recommended reconsidering enforcement mechanisms and clarity in statute.
Josh Nye, a partner at Kriegshauser Nye Law Group and an elected county attorney, told the Committee on Elections that recent enforcement and subpoena practices by the Kansas Governmental Ethics Commission have been overbroad and have chilled political speech.
“I really do have a soft spot in my heart, not only personally, but also on behalf of my clients,” Nye said, describing a 2019 federal trial in which his client was acquitted and later faced administrative proceedings before the KGEC with substantial legal costs.
Nye said multiple recent court decisions support concerns about the way some Kansas statutes have been applied. He cited a federal district court decision on Jan. 3 that found the PAC-major-purpose application unconstitutional as applied in the Fresh Vision OP case, and a separate August 2024 ruling in Shawnee County that struck a “giving in the name of another” application as unconstitutional as applied by KGEC staff. He said there are at least four related cases pending and that defendants have sought attorney’s fees; he said one county-court matter resulted in an $85,000 award of attorney’s fees to the prevailing party.
Nye criticized the frequency and scope of subpoenas served during the 2022 session, which he described as requesting wide-ranging phone and electronic records tied to political activity. He said that practice has created a “culture of fear” among candidates, consultants and lobbyists and has discouraged routine interactions and speech.
On enforcement, Nye urged the committee to reconsider whether administrative enforcement by an independent agency is the best vehicle for policing campaign-finance rules, suggesting the Legislature consider a clearer role for elected criminal prosecutors in appropriate cases to reduce duplicative proceedings and prolonged administrative litigation.
Nye also urged clearer statutory definitions — particularly for PACs (major-purpose test), coordination and conduit contributions — to provide fair notice to speakers and avoid enforcement-by-litigation. “You got to problem — and I have to answer the voters when I file a case. There’s no way to throw this prosecutor out of office through the ballot box,” Nye said in urging clearer lines on who should enforce campaign-finance laws and how.
Committee members asked questions about what changed to produce the recent wave of litigation and about the balance between administrative rules and court process.
Nye said that in his view, changing interpretations and aggressive enforcement — rather than different statutory language in every instance — explain why previously routine conduct has become the subject of protracted investigations and litigation.
