Lying is a First Amendment Right! – Politicians Misleading the Public Suffer No Consequence
The Ohio Elections Commission is pretty much toothless
By John Corrigan
(KENTON) Do you remember the day when a candidate for public office in Ohio would accuse their opponents of being deceitful and it meant something? “Ohio Elections Commission Sanctions Candidate ‘A’ for Intentionally Deceptive Ads” would shout the media releases. Candidates would use great speech and newspaper editorial boards (when that was relevant, unlike today since it is not) with the “Elections Commission Finding” narrative.
The Ohio Elections Commission was founded in 1974 to police elections in Ohio in the wake of the Watergate political scandal. But today, the elections police are more like Quickdraw McGraw (no offense Auditor Yost) and Deputy Dog. They do virtually nothing except enforce deadlines in campaign finance reports. They have not pursued a single case of lying, cheating, or even stealing in Ohio politics in years.
What are taxpayers paying these people to do?
Longtime Executive Director Phil Richter used to be a force to be reckoned with. The seven-person commission, appointed by the Governor with advice and consent of the Ohio Senate, were busy around election time, reviewing hundreds upon hundreds of cases that pitted candidate versus one another, warring political parties and outside political action committees to police elections.
The Elections Commission is supposed to enforce R.C. 3517.21 with its most significant role that used to be enforcing section “(B) (10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Those found guilty of violating 3517.21 were punishable by fines, and even threatened jail terms. Elections Commission cases were widely publicized, some even televised, with wild accusations, convoluted but creative defenses for lying, and then the Commission would deliberate and render a verdict. A party was either guilty of misleading the voters and subject to sanction or were vindicated.
The Commission used to function in a highly proactive manner, with frequent meetings in the months and weeks before elections. Under Ohio law, the Commission may render a “probable cause” preliminary ruling that a candidate in all likelihood lied or intended to mislead voters. The Probable Cause case was then subjected to an expedited quasi-judicial trial where evidence was submitted that either disproved or proved the contention. The candidate, committee, party, or PAC was then either found guilty of lying or acquitted. It was great political theatre.
Much political hay was made of Elections Commission complaints. Many press statements, radio and television ads, literature and direct mail letters and brochures were issued after these cases were decided with blaring headlines. “CANDIDATE X GUILTY OF LYING, BUT DON’T JUST BELIEVE CANDIDATE Y, THE OHIO ELECTIONS COMMISSION RULED CANDIDATE X IS A PROVEN LIAR” You get the idea.
It was high political drama.
No more. In a landmark case of Susan B. Anthony List, et al., Petitioners v. Steven Driehaus, et al. Judge Tim Black, a U.S. District Court Judge appointed by President Barack Obama, struck down Ohio’s law passed by the Legislature at the urging of then House Speaker William G. Batchelder (R-Medina).
The law expressly made lying and knowingly making falsehoods in a political campaign a crime. In 2010, U.S Rep. Steve Driehaus (D-Cincinnati) faced the voters in a heavily pro-life district and the pro-life Republican organization, Susan B. Anthony List accused Driehaus of voting for government financed abortion due to his support of the Affordable Care Act. Driehaus took the case to the Elections Commission, and the Commission issued a preliminary probable cause that the Anthony accusations were false.
The U.S. Supreme Court had ruled in 2014 that the lower court should hear the case, that had been thrown out after Driehaus lost the 2010 election. Black ruled against the State, and effectively argued that lying is a First Amendment right and cannot be sanctioned.
Since then, Richter and his two person team do not enforce Ohio law on lying and cheating in campaigns. Since the earlier law had been struck down, current law, according to Richter’s interpretation, is powerless to stop overt lying in Ohio political campaigns. Not a single case has been taken up by the Commission, who spends its time on campaign finance matters.
The Court System is available to candidates who have been slandered or libeled. While difficult to prove, politicians have won cases in this arena. Former Minnesota Governor Jesse Ventura (I) won a $1.8 million dollar non-campaign related judgement, but was reversed at the Appellate level, and confirmed by the United States Supreme Court http://www.startribune.com/ventura-loses-appeal-to-reinstate-1-8-million-defamation-verdict-vows-retrial/410144095/.
So, yes, candidates, political parties, political action committees can lie, deceive, and make outrageous statements to deceive voters. And, nothing is done about it in Ohio. Rather than crafting a law that can live within First Amendment constraints, according to Judge Black, Ohio’s leaders just let the lies go on. The State did not appeal the decision further after the U.S. Supreme Court had ordered the case to be heard by Black. One could only imagine, that Richter and his commission long for the glory days of hearing cases that didn’t only include missed campaign finance deadlines.
During the recently completed primary election, candidates like Mike DeWine and Mary Taylor threw around wild accusations, and even if they could not be verified, were not subject to any sanction. Taylor’s 2005 vote to cut the state income tax and reform taxes was painted as a massive tax hike, incorrectly, and that deception was allowed unabated. Cliff Rosenberger and Ryan Smith’s aligned “Conservative Alliance PAC” and its sister PAC established to malign State Rep. Larry Householder (R-Glenford), the Honor and Principles PAC, were able to state obviously false statements, and no state entity has the power to intervene on behalf of the truth.
Stunning that elected officials who could create laws to ensure the voters were receiving honest and ethical information regarding candidates would chose not to do so.
Go ahead and lie Ohio politicians, there are no consequences. Except the threat that dishonest campaigns pose to the Republic and the principles that it stands for.