This week, the U.S. Supreme Court unanimously held that an anti-abortion group can proceed with a constitutional challenge of the state’s law that makes it a crime to lie during political campaigns. That’s bad news for the Ohio Elections Commission, in charge of sorting through from 20 to 80 complaints about fibbing every year.
The issue before the court was whether the anti-abortion group, the Susan B. Anthony List, had standing to go forward. Although the commission had found probable cause the group lied about then-U.S. Rep. Steve Driehaus’ voting record, Driehaus, a Democrat from Cincinnati, lost in November 2010 and withdrew the complaint.
What the Susan B. Anthony List wants now is a decision in federal court that would bar the commission from going after it in future campaigns as other Democrats who voted for the Affordable Care Act are targeted for supporting “taxpayer funded abortion.”
Driehaus pointed to an executive order from President Obama that insurance plans offered in health-care exchanges cannot use tax dollars to pay for abortions, except in cases of rape, incest and the life of the mother.
He might have won. What matters now, for Ohio and about a dozen other states with similar laws, is not whether the Susan B. Anthony List was telling the truth, but whether the strong likelihood of future action by the commission is a serious enough threat for the anti-abortion group to challenge Ohio law on free speech grounds.
The answer is yes, and the opinion written by Justice Clarence Thomas leaves little hope that the Ohio Elections Commission and similar bodies have a chance of surviving.
Anyone can file a complaint, wrote Justice Clarence Thomas, who delivered the court’s unanimous decision, triggering action by the elections commission. “The threatened Commission proceedings are of particular concern because of the burden they impose on electoral speech,” Thomas wrote. “Moreover, the target of a complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days before an election.”
So, it’s not too early to ask: Is the bad news for the commission also bad news for Ohio voters? Not really.
Much of what the commission deals with amounts to ankle-biting, campaigns seeking a last-minute tactical advantage by filing a complaint and hoping to get a finding of probable cause or a decision in time to air television ads or print brochures.
For example, in last year’s race for clerk of the Barberton Municipal Court, challenger Zack Milkovich’s campaign was found guilty of making a false statement in yard signs, implying he was the incumbent. By the time the commission ruled, it was the Friday before Election Day, and Milkovich was already in deep trouble, mainly because he had virtually no qualifications to hold the office.
In 2008, in a race watched nationally, Ohio Supreme Court Justice Alice Robie Resnick was slammed by a secretive group called Citizens for a Strong Ohio. Six years passed before the Ohio Elections Commission found that the committee, formed by the Ohio Chamber of Commerce, was really a political action committee and must disclose its donors. By that time, Resnick, who had been re-elected, was ready to retire.
These days, candidates have better and faster means of responding to sleaze than filing a complaint with the elections commission. Even smaller campaigns show increasing sophistication using social media to communicate with voters, instantly countering charges.
In a rough sort of way, Ohio voters have always drawn the line when negative campaigning gets out of hand. There are some spectacular examples of negative campaigns backfiring (among them the Resnick’s 2008 victory).
And candidates who manage to win through negative campaigns, among them State Treasurer Josh Mandel, find that in the long run, they can never completely wash away the slime, past excesses constantly calling into question the credibility of their actions.
That is where the U.S. Supreme Court appears headed, toward a self-regulating political system where free speech rules and voters make up their own minds.
Hoffman is a Beacon Journal editorial writer. He can be reached at 330-996-3740 or emailed at email@example.com.