¶1dissenting.
¶2The trial judge in this case correctly ruled that KRS 121.150(1)
¶3I. Introduction
¶4The indictment against the appellants alleges that they violated KRS 121.150(1) by “knowingly making or receiving a contribution of a thing of value which was neither an independent expenditure to support or defeat a candidate nor made to the duly appointed campaign manager or campaign treasurer of the Patton/Henry slate of candidates.” As made clear by the allegations contained in the Bill of Particulars, these charges involve expenditures made by third parties that allegedly bene-fitted the Patton/Henry gubernatorial campaign. The majority opinion accepts this assessment in concluding that “Appellants were indicted for making contributions ... in the form of ‘coordinated’ expenditures to the Patton/Henry slate.... ” Op. at 50-51. But the majority’s use of the term “coordinated expenditures” is misleading.
¶5The term “coordinated expenditure” comes from the U.S. Supreme Court’s seminal case on campaign-finance regulation. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley, the U.S. Supreme Court addressed the constitutionality of “key provisions of the Federal Election Campaign Act of 1971 [FECA].” Id. at 6, 96 S.Ct. at 629, 46 L.Ed.2d at 680. The case stands as the benchmark against which the constitutionality of all other campaign-finance regulation is made. The majority attempts to shoehorn KRS 121.150(1) into Buckley⅛ dictates through verbal manipulation and gerrymandering. But Buckley’s, limits on the General Assembly’s reach are not as malleable as the majority suggests.
¶6As used in Buckley, “coordinated expenditure” is clearly defined by statute to mean an expenditure “authorized or requested by a candidate.” But the majority construes KRS 121.150(1) to define “coordinated expenditure” as any campaign-related expenditure that is not “independent” within the meaning of the statute. In other words, under the majority’s construction of the statute, “coordinated expenditure” is defined expansively in terms of what it is not rather than in terms of what it is. Under this reverse definition, “coordinated expenditures” embrace a wide range of campaign-related expenditures that constitutionally can be neither limited in amount nor required to be disclosed. Thus, the majority opinion’s narrowing construction of KRS 121.150(l)’s definition of “independent expenditure” merely expands the statute’s definition of “coordinated expenditure” and fails to correct the statute’s inherent constitutional flaw.
¶7II. Discussion
¶8As did the majority, I begin my discussion with Buckleyand its discussion on spending limits.
¶9*64Section 608 of FECA prohibited “individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign and from spending more than $1,000 a year ‘relative to a clearly identified candidate.’ ” Id. at 13, 96 S.Ct. at 681-32, 46 L.Ed.2d at 684. (Buckley referred to the expenditures encompassed by § 608 as “independent expenditures.”) While limits on both campaign-related contributions and expenditures “operate in an area of the most fundamental First Amendment activities,” the BuckleyCourt determined that limits on campaign-related expenditures deserve closer scrutiny than restrictions on campaign-related contributions. Id. at 14-23, 96 S.Ct. at 632-36, 46 L.Ed.2d at 684-90. The Court made, and has continued to carefully maintain this distinction, because “[rjestraints on expenditures generally curb more expressive and associational activity than limits on contributions do.” Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 440, 121 S.Ct. 2351, 2358, 150 L.Ed.2d 461, 472 (2001). Accordingly, the BuckleyCourt upheld FECA’s spending limits on contributions, but struck down the spending limits on expenditures.
¶10The BuckleyCourt’s discussion of FECA’s spending limit provisions is important to this case, because this is where Buckley’s discussion of “coordinated expenditures” is found; however, it takes a bit of explanation to get there. In beginning its spending-limit discussion, the BuckleyCourt stated:
The Act’s expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot, to an expenditure of $1,000 “relative to a clearly identified candidate during a calendar year.” § 608(e)(1). Other expenditure ceilings limit spending by candidates, § 608(a), their campaigns, § 608(c), and political parties in connection with election campaigns, § 608(f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression “at the core of our electoral process and of the First Amendment freedoms.”
¶11Buckley, 424 U.S. at 39, 96 S.Ct. at 644, 46 L.Ed.2d at 699.
¶12The BuckleyCourt concluded that § 608(e)(1) was unconstitutionally vague because the
key operative language of the provision limits “any expenditure ... relative to a clearly identified candidate.” Although “expenditure,” “clearly identified,” and “candidate” are defined in the Act, there is no definition clarifying what expenditures are “relative to” a candidate. The use of so indefinite a phrase as “relative to” a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608(e)(1) make sufficiently explicit the range of expenditures covered by the limitation.
¶13Id. at 41-42, 96 S.Ct. at 645, 46 L.Ed.2d at 700.
¶14The BuckleyCourt, however, determined that the range of expenditures covered by § 608(e)(1) could be made sufficiently explicit by construing the phrase “relative to a candidate” to mean “advocating the election or defeat of a candidate.” Id. at 42, 96 S.Ct. at 645-46, 46 L.Ed.2d at 700-01. Still, this did not eliminate the vagueness problem because
the distinction between discussion of issues and candidates and advocacy of *65election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.
¶16The BuckleyCourt then held that the vagueness problem with § 608(e)(1) only could be eliminated by further limiting the reach of the statute’s spending limits by construing it “to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” Id. at 44, 96 S.Ct. at 646-47, 46 L.Ed.2d at 702. Even so narrowly and explicitly construed, the statute was still unconstitutional because “the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608(e)(l)’s ceiling on independent expenditures.” Id. at 45, 96 S.Ct. at 647, 46 L.Ed.2d at 702. One of these governmental interests is of great importance to this case.
¶17The proponents of § 608(e)(1) argued that the statute was necessary to
prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate’s campaign activities ... [and] that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse.
¶18Id. at 46, 96 S.Ct. at 647, 46 L.Ed.2d at 703 (emphasis added). The BuckleyCourt rather summarily dismissed this argument by noting that “such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act.” Id. at 46, 96 S.Ct. at 647-48, 46 L.Ed.2d at 703 (emphasis added). The argument had no merit because “Section 608(b)’s contribution ceilings rather than § 608(e)(l)’s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions.” Id. at 46-47, 96 S.Ct. at 648, 46 L.Ed.2d at 703-04.
¶19Thus, under Buckley, “coordinated expenditure” means an expenditure “authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate.” Id. at 46, n. 53, 96 S.Ct. at 648, n. 53, 46 L.Ed.2d at 703, n. 53 (citing § 608(c)(2)(B) of the Act). KRS Chapter 121’s definition of section does not define “contribution” to include coordinated expenditures as that term is used in Buckley. Rather, the only definition of “contribution” that applies to expenditures of any sort is KRS 121.015(6)(e): “‘Contribution’ means any ... [e]xpenditure in connection with any other activity undertaken independently of the activities of a candidate, slate of candidates, committee, or contributing organization made or furnished for the purposes of influencing the results of an election.” This definition is unconstitutional on its face because it includes “exactly the type of independent activity that Buckleyheld could not be restricted.” Op. at 50. The definition is void and has no effect. Further, KRS Chapter 121’s definition of section does not define either the term “expenditure” or “coordinated expenditure.” Therefore, any definition of those terms must be found in KRS 121.150(1) itself.
¶20KRS 121.150(1) places affirmative obligations on all persons or groups who make *66expenditures to support or defeat a candidate (“campaign-related expenditures”). The form of the obligation depends on the type of expenditure made, “independent” campaign-related expenditures over $500 must be reported directly to the Registry. All other campaign-related expenditures must be made through a “duly appointed campaign manager, or campaign treasurer.” The majority opinion considers these non-independent, campaign-related expenditures to be “coordinated expenditures” that can be treated as “contributions” under Buckley. See Op. at 50-51. The Commonwealth clearly gives the statute this construction. The Bill of Particulars alleges that the appellants “violated KRS 121.150(1) by contributing a ‘thing of value’ to the Patton campaign [that] was not made to [Patton’s] campaign manager or ... treasurer ... and which was not an independent expenditure.” (Emphasis added). Thus, while KRS 121.150(1) does not expressly define “coordinated expenditure,” it implicitly defines it in terms of what is not an “independent expenditure.” This inclusive and implicit definition is contrary to the exclusive and explicit definition of the same term in Buckley. This difference in definition is what makes KRS 121.150(1) unconstitutionally overbroad on its face.
¶21KRS 121.150(1) defines the term “independent expenditure” to mean an expenditure
made for a communication which expressly advocates the election or defeat of a clearly identified candidate or slate of candidates, or the passage or defeat of a constitutional amendment or public question which will appear on the ballot and which is not made with any direct or indirect cooperation, consent, request, suggestion, or consultation involving a candidate, slate of candidates, campaign committee, political issues committee, or agent.
¶22The above definition is detailed, precise and, well, definite. It is the inverse of Buckley’s definition of the same term. Buckleyuses the term “independent expenditure” broadly and indefinitely to refer to FECA’s spending limits on all “expenditures by individuals and groups ‘relative to a clearly identified candidate.’ ” Buckley, 424 U.S. at 7, 96 S.Ct. at 629, 46 L.Ed.2d at 681. Thus, Buckley’s use of the term “independent expenditure” corresponds the closest with KRS 121.150(l)’s phrase “expenditures ... made ... to support or defeat a candidate.” On the other hand, KRS 121.150(l)’s definition of “independent expenditure” corresponds with Buckley’s narrow and explicit construction of the term “expenditure.”
¶23The language “expressly advocates the election or defeat of a clearly identified candidate” contained in KRS 121.150(l)’s definition of “independent expenditure” is obviously patterned after the BuckleyCourt’s narrow construction of § 608(e)(1), which limited that statute’s application “only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” Buckley, 424 U.S. at 44, 96 S.Ct. at 646-47, 46 L.Ed.2d at 702. Recall that the BuckleyCourt narrowly construed § 608(e)(1) this way to avoid the inherent vagueness problem of applying FECA’s spending limits to “independent expenditures” as that term was used in Buckley. Further recall that, by definition, expenditures that were “authorized or requested by a candidate” (coordinated expenditures) were excluded from the definition of “independent expenditures” in Buckley. Thus, under Buckley’s narrow construction of § 608, “expenditures” comprised a small, discrete subset of the whole set of “independent expenditures,” as that term is used in Buckley.
¶24*67Unlike Buckley, under KRS 121.150(1) it is “independent expenditures” that comprise a small, discrete subset of a much greater set. This greater set consists of all “expenditures ... made ... to support or defeat a candidate.” But the greater set of KRS 121.150(1) is larger than Buckley’s set of “independent expenditures” because, under Buckley, “independent expenditures” expressly excluded expenditures “authorized or requested by a candidate,” whereas such expenditures are not excluded from KRS 121.150(l)’s phrase “expenditures ... made ... to support or defeat a candidate” and, thus, necessarily fall somewhere within it. But also falling within that phrase are expenditures made for “exactly the type of independent activity that Buckleyheld could not be restricted.” Therefore, under Buckley, all expenditures “relative to a clearly identified candidate” (“independent expenditures”) that are not “expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate” (“expenditures”) are campaign-related expenditures that constitutionally can be subject to neither spending limits nor reporting requirements. On the other hand, under KRS 121.150(1) “expenditures ... made ... to support or defeat a candidate” (all campaign-related expenditures) that are not “independent expenditures” within the meaning of the statute, include both “independent expenditures” and “coordinated expenditures” as those two terms are used in Buckley. Thus, in the context of the case at bar, the statute’s constitutional infirmity lies not in the type of expenditures included in KRS 121.150(l)’s definition of “independent expenditure,” but rather, the infirmity lies in the type of expenditures excluded by the definition, which indiscriminately includes both “independent expenditures” and “coordinated expenditures” as those terms are used in Buckley. And it applies to these campaign-related expenditures in a way prohibited by Buckley, as can be shown through Buckley’s discussion of FECA’s disclosure and reporting provisions.
¶25Reporting and disclosure are not the same thing. “Disclosure” refers to statutory provisions that compel 'political candidates, parties and committees to keep detailed records of contributions and expenditures and to disclose this information through regular pre- and post-election reports to a governmental agency. See Buckley, 424 U.S. at 60-63, 96 S.Ct. at 654-55, 46 L.Ed.2d at 711-12 (emphasis added). “Reporting” refers to statutory provisions that require “direct disclosure of what an individual or group contributes or spends.” Id. at 75, 96 S.Ct. at 661, 46 L.Ed.2d at 719 (emphasis added).
¶26The Kentucky disclosure provisions require any candidate, slate of candidates, or political issue committee to make a report to the Kentucky Registry of Election Finance (“Registry”) that includes inter alia a list of the full name, address, occupation and employer of any person making a contribution over $100, as well as the date on which the contribution was made; and (2) a “complete statement of all expenditures authorized, incurred or made.” KRS 121.180(3)(a). In turn, the Registry is required to make these reports available for inspection and copying. KRS 121.120(4)(f). These provisions are very similar to those in FECA, which were discussed in Buckley. Id. at 62-64, 96 S.Ct. at 655-56, 46 L.Ed.2d at 712-13.
¶27The BuckleyCourt held that FECA’s disclosure requirements were constitutional. Id. at 64-68, 96 S.Ct. at 655-56, 46 L.Ed.2d at 713-16. Likewise, and for the same reasons which are not relevant here, I believe that the Kentucky disclosure statutes are constitutional. But Buckley⅛ “disclosure” discussion is not relevant to the case at bar. Rather, what is relevant *68is Buckley⅛ discussion and examination of FECA’s reporting statute, § 434.
¶28Section 434 of FECA imposed no spending limits on either contributions or expenditures. Instead, it required “every person (other than a political committee or candidate) who makes contributions or expenditures aggregating over $100 in a calendar year other than by contribution to a political committee or candidate to file a statement with the [Federal Election Commission].” Id. at 74-75, 96 S.Ct. at 661, 46 L.Ed.2d at 719 (internal quotation marks omitted). Violation of the statute carried criminal penalties. Id. at 76, 96 S.Ct. at 661, 46 L.Ed.2d at 720. Similarly, KRS 121.150 imposes no limits on either campaign-related contributions or expenditures. Instead, it requires that all contributions and expenditures, other than “independent expenditures,” be made only through [a] candidate’s campaign manager or treasurer. “Independent expenditures” over $500 are to be directly reported to the Registry. And, violation of the statute is a felony offense. KRS 121.990(3). In the context of this case, the only possible difference in the two statutes is KRS 121.150(l)’s bifurcation of reporting requirements between (1) the Registry, and (2) “only through [a] duly appointed campaign manager.” The difference is of no practical consequence.
¶29First of all, it was § 434’s criminal penalties for individuals and groups who failed to report a contribution or expenditure that caused the BuckleyCourt the most concern about the statute’s constitutionality. See Buckley, 424 at 76-77, 96 S.Ct. at 662, 46 L.Ed.2d at 720 (§ 434 “raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties and fear of incurring these sanctions may deter those who seek to exercise protected First Amendment rights.”). Further, KRS 121.150(l)’s requirement that a campaign-related contribution or non-independent expenditure shall be made “only through [a] duly appointed campaign manager, or campaign treasurer” is, for all practical purposes, a reporting requirement.
¶30While no report is made directly to the Registry under the “through [a] duly appointed campaign manager” requirement, the candidate, through whose campaign manager the contribution or non-independent expenditure is made, is required to file a detailed report of the information to the Registry. KRS 121.180(3)(a). This report includes the full name and address of the person making the contribution or expenditure. In turn, the Registry is required to make these reports available for public inspection and copying. KRS 121.120(4)(f). From the standpoint of the person or group making a campaign-related contribution or expenditure, there is no appreciable difference between directly reporting vital information about a campaign-related contribution or expenditure to the Registry and indirectly reporting the same information through a “duly appointed campaign manager.” Therefore, the reach of KRS 121.150(l)’s reporting requirement is necessarily constrained by what is constitutionally permissible under Buckleyand its progeny, because (1) neither § 434 nor KRS 121.150(1) imposes any constraints on the amount of campaign-related contributions or expenditures that individuals or groups can make, (2) both KRS 121.150(1) and § 434 of FECA affirmatively require individuals and groups to report campaign-related contributions and expenditures, (3) violation of both statutes is a criminal offense, and (4) both statutes’ reporting requirements implicate core First Amendment rights.
¶31In its discussion of § 434, the BuckleyCourt separately examined the constitu*69tionality of the statute as applied to contributions and expenditures, just as it did in its discussion of FECA’s spending-limit provisions. In this discussion, the Court noted that FECA’s reporting and disclosure provisions used the same definition of “contribution” as was used in the spending limit provisions. Buckley, 424 U.S. at 78, 96 S.Ct. at 663, 46 L.Ed.2d at 721. That is, FECA defined “contribution” to include expenditures “authorized or requested” by a candidate for purposes of § 434. The BuckleyCourt held that the reporting provisions were constitutional as applied to contributions because, “[s]o defined, ‘contributions’ have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign.” Id. at 78, 96 S.Ct. at 663, 46 L.Ed.2d at 721-22. The individual reporting requirements of § 434 as applied to “expenditures” gave the Court more pause.
¶32Just as it began its discussion on FECA’s spending-limit provisions, the BuckleyCourt began its discussion of § 434 by addressing an inherent vagueness problem with the statute. This time, the language that gave the Court trouble was the phrase “for the purpose of ... influencing an election or nomination,” which the Court determined had the “potential for encompassing both issue discussion and advocacy of a political result.” Id. at 79, 96 S.Ct. at 663, 46 L.Ed.2d at 722. The Court concluded that this was overbroad. Id. at 79-80, 96 S.Ct. at 663-64, 46 L.Ed.2d at 722. Thus, to insure that the reach of § 434(e) was not imper-missibly broad, the BuckleyCourt construed “expenditure” for purposes of § 434 in the same way it construed “expenditure” in FECA’s spending-limit provisions, ie., “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id. at 80, 96 S.Ct. at 664, 46 L.Ed.2d at 722. But unlike § 608’s spending limits on expenditures, the BuckleyCourt held that § 434’s reporting requirement of expenditures was constitutional in light of its narrow construction of the statute because it bore a “sufficient relationship to [the] substantial governmental interest[s]” of preventing election corruption and the appearance of corruption. Id. at 80, 96 S.Ct. at 664, 46 L.Ed.2d at 722.
¶33In concluding its § 434 discussion, the BuckleyCourt provided a summary of when § 434(e), as construed, imposed independent reporting requirements on individuals and groups that were not candidates or political committees. Reporting under the statute was required
only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate.
¶34Id. at 80, 96 S.Ct. at 664, 46 L.Ed.2d at 722-23 (emphasis added).
¶35The “authorized or requested” language mirrors FECA’s description of the types of expenditures (coordinated) that are included in the definition of “contribution” and, consequently, that are excluded from the definition of “expenditure.” Thus, under Buckley, the General Assembly may only require individuals and groups, who are not candidates or political committees, to report expenditures (1) that are authorized or requested by a candidate or his or her agent, or (2) that are made for communications that expressly advocate the election or defeat of a clearly identified candidate. By defining “coordinated expenditures” as any expenditure that is not “independent” *70within the meaning of the statute, KRS 121.150(1) goes much further than Buckleyallows.
¶36KRS 121.150(1) requires the reporting of all expenditures made “to support or defeat” a candidate or slate of candidates, except “independent expenditures” under $500. This requirement indiscriminately embraces both direct advocacy and the discussion of issues. It applies exactly to the type of “independent expenditures” that the government cannot require to be reported. The statute is too broad. The majority’s narrowing construction of the term “independent expenditure” does nothing to solve this problem, because it only affects to whom campaign-related expenditures have to be reported; it fails to affect the range of campaign-related expenditures that are required to be reported under the statute, which is where the constitutional infirmity of the statute lies.
¶37Finally, KRS 121.150(l)’s definition of “coordinated expenditures” in terms of what it is not rather than in terms of what it is, creates yet another problem that makes the statute unenforceable. Under the majority’s construction of KRS 121.150(1), to prove violation of the statute at trial, the Commonwealth will have to show that the alleged expenditures (1) were made to support or defeat a candidate, and (2) the expenditures were not “independent” as that term has been construed by the majority. Thus, all non“independent expenditures” are non-re-buttably presumed to be “coordinated” under KRS 121.150(1). This presumption is not enforceable. See Federal Election Commission v. Colorado Republican Federal Campaign Committee, 518 U.S. 604, 621-22, 116 S.Ct. 2309, 2319, 135 L.Ed.2d 795, 809 (1996).
¶38III. Conclusion
¶39KRS 121.150(1) is unconstitutional on its face because it requires campaign-related expenditures to be reported that cannot be required to be reported under Buckley, and because it creates the impermissible presumption that all non-independent expenditures are “coordinated.” Because the reporting requirement applies to all expenditures made to support or defeat a candidate, it inescapably reaches expenditures that neither expressly advocate the election or defeat of a clearly identified candidate nor are authorized or requested by a candidate. The majority’s attempt to save the constitutionality of the statute through a narrow construction of the term “independent expenditure” misses the mark because it does not limit the type of campaign-related expenditures that are subject to the statute’s reach. Finally, the unconstitutionality of the statute renders all the charges in the indictment against the appellants unenforceable.
¶40Counts I and IV of the Indictment cannot be maintained because they allege a violation of KRS 121.150(1), which is unconstitutional and cannot be enforced against the appellants.
¶41Count II of the Indictment cannot be maintained because the Bill of Particulars alleges that appellant Martin violated KRS 121.150(12) because he “knowingly accepted a contribution made by Ross, Fields and Winstead.” But the alleged “contribution” is in the form of an expenditure. The applicable definition of contribution that applies to expenditures is unconstitutional on its face. Therefore, any expenditure made or received by the appellants cannot be considered a “contribution” within the meaning of KRS 121.150(12).
¶42Counts III and V of the Indictment cannot be maintained because the charges are based on the allegation that the appellants violated KRS 121.150(1). Because the statute is unconstitutional, there is no underlying offense to support the allegation.
¶43*71For the reasons set forth above, I respectfully dissent.
¶44. All statutory citations in this dissent are to the 1994 versions of the statute.