Outside of Ohio, one might find it odd that a state government panel exists to determine the “truthiness” of campaign ads.
However, under Ohio’ s generalized false-statement prohibitions, a complaint may be filed with the Ohio Elections Commission by “any person,” including political opponents, attesting that one of the statements in an ad was “false.” The allegedly false speech then will be reviewed by a state administrative body that has been selected with specific reference to the political affiliations of its members. This process begins with a “probable- cause” hearing before a panel selected by the Chair of the Commission. In some regards, the panel is similar to FactCheck.org. The panel, however, has the ability to threaten citizens with fines and criminal charges if they don’t toe the government line on their version of the “truth.”
Complaints filed within 90 days before an election must be heard within three days. At these expedited hearings, the Commission is not required to allow any evidence, testimony, or argument to be presented, and the hearing may be conducted without the respondent present or even notified. Even if the respondent receives notice before this hearing, is able to appear, and is allowed to present evidence or argument, the respondent may have no opportunity prior to the hearing to gain discovery or to learn the basis for the complaint, which may be conclusory in nature.
If the panel finds “probable cause” – a very low hurdle – the Commission may issues subpoenas compelling the attendance of witnesses and the production of papers, books, accounts, and reports, and may seek enforcement through contempt proceedings in the Franklin County Court of Common Pleas. Eventually, if the full Commission determines by “clear and convincing evidence” that the respondent has violated the false-statements law, the Commission may refer the matter to the appropriate county prosecutor for prosecution.
Former Rep. Driehaus sued SBA List alleging that billboards they provided during campaign season claiming that he voted in favor of taxpayer-funded abortions constituted defamation and led to a “loss of livelihood.” Representative Driehaus considers himself pro-life, but voted in favor of the federal health care overhaul which, according to SBA List, did not include provisions explicitly prohibiting taxpayer-funded abortions. SBA List’s claim against Driehaus stems from a study by the US Conference of Catholic Bishops, which also took the stance that the bill did not provide adequate measures to prevent certain insurance pools with access to federal funds from paying for abortion services. Driehaus claims that current statutes and an executive order fully prevent taxpayer money from going towards abortions, which SBA list disputed.
The complaint made it all the way to the United States Supreme Court.
- Center for Competitive Politics: SBA List v. Driehaus (CCP)
- Brief of Amicus Curiae Center for Competitive Politics in Support of Plaintiffs-Appellants and in Support of Affirmance (April 6th, 2015)
- Amicus Brief: SBA List v. Driehaus (DeWine and Smith)
- Brief amici curiae of Cato Institute, and P.J. O’Rourke filed
- Brief amici curiae of Citizens United
- Brief amici curiae of Institute for Justice
- Brief amicus curiae of 1851 Center for Constitutional Law
- Brief amicus curiae of First Amendment Lawyers Association
- Brief amicus curiae of Foundation for Individual Rights in Education
- Brief amicus curiae of Republican National Committee
- CCP: Press mulls its right to lie in coverage of SBA List v. Driehaus, by Bradley A. Smith
- Wall Street Journal: Courts Should Stay Out of Political Fact-Checking, by Michael A. Carvin and Yaakov M. Roth