SESSION OF 2023
SUPPLEMENTAL NOTE ON SUBSTITUTE FOR HOUSE
BILL NO. 2391
As Recommended by House Committee on
Elections

Brief*
Sub. for HB 2391 would amend provisions in the
Campaign Finance Act on topics including procedures of the
Kansas Governmental Ethics Commission (Commission).

Governmental Ethics Commission (New Section 1 and
Section 2)
The bill would state the provisions of the Kansas
Administrative Procedure Act (KAPA), the Kansas Code of
Civil Procedure, and the Kansas Judicial Review Act (KJRA)
would apply to actions by the Commission or Commission
staff. This would include, but not be limited to, investigative
and enforcement actions of the Commission and applications
to the Commission. The bill would apply provisions of the
Kansas Public Speech Protection Act to all actions filed by
the Commission in district court pursuant to this act.
The bill would establish the statute of limitations for
bringing any action before the Commission at five years after
the first act giving rise to the cause of action or complaint.
The bill would require the Commission to provide
through rules and regulations the standards by which any
member of the Commission, the Executive Director, or other
person employed or engaged by the Commission must
recuse themselves from any matter before the Commission
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
for a reason affecting the ability of the Commission to
neutrally and fairly enforce the Campaign Finance Act (Act).
Continuing law prohibits a member of the Commission
from being a candidate for or holder of any partisan political
office. The bill would also, for the purposes of the
qualifications of Commission members, add a definition of
“partisan political office” to mean any office for which any
candidate is nominated or elected as representing a party
whose candidates for presidential elector received votes in
the last preceding election at which presidential electors were
selected. The definition would exclude any office or position
within a political party including, but not limited to, precinct,
congressional district, or state party committee member.

Commission Hearings, Procedures, and Findings
Respondent Rights (New Section 1)
The bill would state no action by the Commission shall
require a respondent to waive any civil or legal rights to
judicial recourse in any manner, and no person shall be held
responsible for any action on behalf of another individual or
entity subject to the provisions of this act, unless that person
is an agent as defined in the bill.
Hearing Procedures (Sections 13, 14, 18, and 19)
The bill would require all hearings conducted under the
Act to be conducted in accordance with the provisions of
KAPA and the Kansas Code of Civil Procedure. The bill would
authorize the respondent to request any hearing and pre-
hearing procedure under this act be removed for hearing
before a presiding officer from the Office of Administrative
Hearings and conducted as prescribed by KAPA. The bill
would prohibit the Commission from conducting another
hearing on the matter and would require the Commission to
make its final determination based on the record.

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 The bill would also clarify any appeal to district court by
a person aggrieved by an order of the Commission would be
a trial de novo, and the bill would require the trial de novo to
be an evidentiary hearing at which issues of law and fact are
determined anew.
Commission Procedures (Sections 12, 13, and 15)
The bill would remove the Commission’s authority to
issue subpoenas and require the Commission to apply to the
Shawnee County District Court for an order to administer
oaths and affirmations, subpoena witnesses, compel their
attendance, take evidence, and require the production of any
documents or records that the Commission deems relevant or
material to the investigation. The bill would require all
applications for a court order to be made under the seal of the
court. The bill would require a 2/3, rather than 3/4, majority
vote to issue such an application and would remove the
requirement that the commissioners must be physically
present in order to vote. The bill would require any subpoena
or other process issued by the Commission pursuant to the
section on subpoenas to be served upon any person unless
an application has been filed in the district court of Shawnee
County.
The bill would state the court may issue the order after
review of the sufficiency of the written findings of fact and
conclusions of law provided by the Commission, the
Commission record, and the reasonableness and scope of
the subpoena. The bill would require any subpoena or
subpoena duces tecum issued by the presiding officer to be
subject to the provisions of KAPA, the Kansas Code of Civil
Procedure Act, and all other laws applicable to issuance and
quashing of subpoenas. The bill would allow a person
responding to a subpoena to apply to a court for relief from a
subpoena.
The bill would require every subpoena so issued to
include notices regarding the rights of the person to whom the

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subpoena was issued. The bill would require any person
ordered to testify or produce documents to be informed that
the person has a right to be advised by counsel and may not
be required to make any self-incriminating statement. The bill
would direct the judge to appoint counsel if the person is
indigent and requests counsel. The bill would authorize
counsel to be present while the witness is testifying and
interpose objections on behalf of the witness, but would not
authorize counsel to examine or cross-examine any witness.
The bill also would require the Commission to take
reasonable steps to avoid imposing undue burden or expense
on a person subject to subpoena and require the court to
enforce this duty against the Commission and impose an
appropriate sanction.
The bill would also prohibit any attorney or staff member
representing the complainant before the Commission from
engaging in ex parte communication with the Commission, as
well as advising, representing, or assisting the Commission
regarding the same or related matter before the Commission.
The bill would require the Commission to obtain separate
independent legal counsel when needed to comply with these
requirements.
The bill would authorize the Commission to enter into a
contract with the Office of Administrative Hearings and
provide reimbursement for actual and necessary expenses
and compensation for such person serving as a presiding
officer, and would add duties of confidentiality for hearings to
members of the Commission, the Executive Director, or any
person employed or engaged by the Commission.
The bill would amend various provisions to reflect
changes to the subpoena process and the application of
KAPA, the Kansas Code of Civil Procedure Act, and all other
general laws applicable to the issuance and quashing of
subpoenas.

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 The bill would apply duties of confidentiality of
complaints and allegations therein only to members of the
Commission, Executive Director, or any person employed or
engaged by the Commission. The confidentiality statute on
records, complaints, documents, reports filed with or
submitted to the Commission, and all transcripts of any
investigation, inquiries, or hearings of the Commission would
apply only to members of the Commission, the Executive
Director, or any person employed or engaged by the
Commission.
Penalties and Fines (Sections 7 and 17)
The bill would cap the fine the Commission could
impose to not exceed an amount double the applicable fine
for a single violation of the matter. The bill would state its
provisions would not prevent a court from imposing a
separate fine in a criminal proceeding. Further, the bill would
direct fines assessed to the State General Fund instead of
the Governmental Ethics Commission Fund.
The bill would also prohibit the Commission from:
● Ordering community service or any other specified
performance in lieu of a civil fine as part of a
consent decree or final order; and
● Entering into any agreement with any person that
legally binds the Commission from enforcing any
law against that person in exchange for the
person’s cooperation with or assistance of the
Commission in any matter unless that person has
received immunity from criminal prosecution in the
matter from a county or district attorney or the
Attorney General.
The bill would state these provisions would not prohibit
the Commission from requiring training regarding or
compliance with any provision of the Act as part of a consent
decree or final order.
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Campaign Finance
Definitions (Sections 3, 6, 10, 11, and 16)
The bill would add multiple definitions to the Act:
● “Agent” would mean an individual who is a
candidate; a chairperson of a candidate, political,
or party committee; a treasurer; or any director,
officer, employee, paid consultant, or other person
authorized in writing to act on behalf of a person
previously listed;
● “Coordination” or “coordinated” would be defined in
terms of an express advocacy communication. A
communication that is coordinated would be one
that is paid for, in whole or in part, by a person
other than the candidate or party committee, and
meets a Federal Election Commission definition of
“coordination communication”; it would exclude any
action where reasonable efforts are taken to
prohibit information passing from a candidate or
candidate’s agent to a political committee;
● “Primary purpose” would mean the entity in
question meets at least one of the following
standards:
○ The entity publicly states in its articles of
incorporation, bylaws, or resolutions by the
board of directors that its primary purpose is
to expressly advocate the nomination,
election, or defeat of a clearly identified
candidate for state or local office or to make
contributions to or expenditures for the same
purpose; or
○ The entity spends at least 50 percent of the
entity’s total spending on contributions or
expenditures reportable under this act during
a two-year general or local election cycle;
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● “Contribution in the name of another” would mean
a contribution given to another individual or entity
for the purpose of concealing the original source of
any funds reported under this act. The bill would
provide a section regarding knowingly making or
accepting a contribution in the name of another
would not apply to contributions, expenditures, or
transfers subject to the Act made by an individual
or committee otherwise reporting the contribution,
expenditure, or transfer on a report or statement
filed under the Act;
● “Restricted to uses for a specific purpose” would
mean only a legally enforceable limitation on the
manner in which a contribution may be used, and
would not include suggestions, advice, requests, or
other non-binding statements.
The bill would amend two definitions:
● “Independent expenditure” would mean an
expenditure made without the coordination, rather
than the cooperation or consent, of the candidate
or agent of the candidate; and
○ “Total spending” to amend the term to “total
program spending,” exclude volunteer
expenses as well as volunteer time, and
specify that the term includes all
disbursements other than those for
fundraising and administrative expenses but
includes costs of fundraising communications
that expressly advocate the nomination,
election, or defeat of a candidate for state or
local office. To determine total program
spending regarding grants:
○ The bill would require a grant made to a
political committee or an organization
organized under section 527 of the Internal
Revenue Code to be counted in total program
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 spending, unless expressly designated for
use outside of Kansas or federal elections;
○ If the entity making a grant takes reasonable
steps to ensure the transferee does not use
the funds to make a contribution or
expenditure in Kansas, the bill would require
the grant to be counted in total program
spending but not as a contribution or
expenditure; and
○ If the entity making a grant expressly
earmarks a portion of the grant for a
contribution or expenditure in Kansas, the
grant would be counted in total spending, and
the earmarked portion would count as a
contribution or expenditure.
The bill would also amend the definition of “excessive
campaign contribution” to clarify nothing in the definition
would prohibit a contribution, expenditure, or transfer of
money between party or political committees and candidates
and candidate committees made in compliance with the
statute regarding campaign contributions given in the name of
another and the statute regarding permitted campaign fund
use.
Filing Fees and Requirements (Sections 4 and 5)
The bill would create a new category of registration by a
political committee and change the thresholds for annual
registration fees for political committees. A political committee
anticipating receiving within a calendar year:
● More than $10,000, a new category, would be
required to pay a $500 registration fee;
● At least $2,501 and less than $10,001 would be
required to pay a $300 registration fee;


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 ● At least $500 and less than $2,501 would be
required to pay a $100 registration fee; and
● Less than $500 would be required to pay a $50
registration fee.
The bill would make technical amendments to continue
requiring a political committee that receives more
contributions than anticipated to pay the difference between
the fee owed and the amount of the fee accompanied by
current registration. Continuing law states this does not apply
to political committees registered in the $2,501 to $10,001
range of anticipated contributions.
Campaign Solicitation (Sections 8 and 9)
The bill would state no solicitation from January 1
through Sine Die is a violation if it is a general public
solicitation and accompanied with a disclaimer that it is not
intended for lobbyists, political committees, or persons other
than individuals.
The bill would prohibit any member of or candidate for
the Legislature from serving as the treasurer or chairperson
of a political committee.
Campaign Expenditures and Contributions (Section 11)
The bill would expand allowable personal use of moneys
received by any candidate or candidate committee to include:
● Expenses, compensation, or gifts provided to any
volunteer, staff member, or contractor of the
candidate’s campaign or provided to any volunteer
or staff of the candidate’s political office, provided
that the total amount provided from all sources
does not exceed the total fair market value of
services provided;

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 ● Payment of any civil penalty imposed by the
Commission pursuant to the Act; and
● Payment of legal fees related to any matter under
the Act.
The bill would state nothing from the section regarding
personal use of campaign funds would prohibit a candidate or
candidate campaign from contributing moneys to a party
committee, and the party committee would not be prohibited
from accepting said contributions, provided it is not restricted
for a specific purpose.
The bill would also make technical amendments to
update language referring to the Kansas Commission on
Governmental Standards and Conduct and to make
conforming amendments to provisions of the bill.

Effective Date
The bill would be in effect upon publication in the
Kansas Register.

Background
The bill was introduced by the House Committee on
Elections at the request of Representative Waggoner.

House Committee on Elections
In the House Committee hearing, representatives of
Kreigshauser Ney Law Group and the Institute for Free
Speech and private citizens provided proponent testimony.
The proponents generally stated the Commission currently
controls all parts of the process of handling a complaint and
violation through determining the penalty, and the bill would
place appropriate checks on the Commission’s authority.

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 Written-only proponent testimony was submitted by a
representative of Fleeson Gooing, Attorneys at Law.