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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Analysis of Proposed Ohio Campaign Finance Bill (SB1/HB1): Electioneering Communication Provisions

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December 13, 2004

1. The definition of "electioneering communication" in this bill does not track the definition of the same term in the federal McCain-Feingold law, upheld by the U.S. Supreme Court in McConnell v. FEC. Whereas federal law defines "electioneering communication" as only those candidate-specific broadcasts that occur within 60 days of a general election (or 30 days of a primary), this bill by contrast defines "electioneering communication" to encompass all candidate-specific broadcasts prior to a general election (or primary). Consequently, there can be no presumption of validity attaching to the "electioneering communication" elements of this bill based on McConnell.

2. The obligation of individuals and non-profit groups to create "electioneering communication committees" in order to engage in any such communications is problematic under the U.S. Supreme Court's decision in FEC v. MCFL. That decision held unconstitutional a federal law insofar as it required a non-profit ideological group to establish a political action committee in order to disseminate a newsletter advocating the election of pro-choice candidates. According to the Supreme Court, the burden of creating a PAC was too great to impose on groups of this nature. Therefore, the Supreme Court is likely to similarly disfavor the obligation to create "electioneering communication committees" imposed by this bill on individuals and non-profit groups.

3. Insofar as this bill attempts to ban all candidate-specific broadcasts within 30 days of a general election or primary by persons others than the candidates themselves, the bill is patently unconstitutional under the First Amendment.

3.1 The bill says: "No electioneering communication committee shall make, during the thirty days preceding a primary election or during the thirty days preceding a general election, any broadcast, cable, or satellite communication that refers to a clearly identified candidate."

3.2 The bill does not specifically say that no one else may make a candidate-specific broadcast during this 30-day time period; moreover, because the bill defines "electioneering communication" to exclude candidate-specific broadcasts within this 30-day time period, the obligation to set up "electioneering communication committees" would not extend to such communications. Therefore, technically, everyone would be free to make such communications without restraint, including without any disclosure obligations (which cover "electioneering communications" before the 30-day cut off).

3.3 But the apparent intent of the bill is to require all candidate-specific broadcasts to be funneled through special committees (with their attendant disclosure obligations) prior to 30 days before the election, but prohibit them altogether during the last 30 days. This intent was made explicit in a summary of the bill prepared by its sponsors at a press conference on Friday, December 10.

3.4 This apparent intent, however, is flagrantly contrary to the First Amendment, as construed by the U.S. Supreme Court in a longstanding series of cases, and the inclusion of this provision in the bill is likely to make the judiciary dubious of other provisions as well.

4. Apart from the apparent 30-day absolute ban on candidate-specific broadcasts (as discussed immediately above), the bill appears to permit business corporations and labor unions to spend unlimited sums of money to sponsor candidate-specific broadcasts.

4.1 The bill permits any "person" to engage in candidate-specific broadcasts in advance of 30 days, as long as they set up the requisite committee. The bill defines "person" in the same way as R.C. 1.59, which specifically encompasses corporations and associations.

4.2 The bill also specifically exempts "electioneering communications" from the prohibition on corporate or union campaign activities in R.C. 3599.03(A). The bill does this by introducing a new clause in 3599.03(A), which states: "Except to carry on activities specified in . . . 3517.10011 . . ., no corporation . . . and no labor union . . . shall pay . . . for or in aid of or opposition to . . . a political party, a candidate . . ." Section 3517.1011 is the new one concerning electioneering communications. Anything undertaken pursuant to this new section is now outside the prohibition contained in 3599.03(A). Therefore, under this bill, business corporations and labor unions now will be free to spend as much as they wish on such candidate-specific broadcasts.

4.3 In this respect, this bill stands in sharp contrast to the federal McCain-Feingold law, which prohibited corporate and union money for candidate-specific broadcasts within 60 days of a general election (or 30 days of a primary), but did not prohibit individuals or unincorporated ideological groups from spending their funds on candidate-specific broadcasts. The Ohio General Assembly would do better if it were to track the electioneering communication provisions of McCain-Feingold, rather than to adopt the current draft of the bill.

5. This bill imposes disclosure obligations considerably more extensive than those in McCain-Feingold and sustained in McConnell.

5.1 The disclosure obligations in McCain-Feingold kick in only 60 days before a general election (and 30 days before a primary), whereas the disclosure obligations in this bill kick as soon as there is a candidate for office identified in a broadcast – which could be a year (or more) before the election.

5.2 For statewide offices, especially the Governor's race, the disclosure obligation would apply to any broadcast mentioning any candidate for Governor, including those mentioning incumbent officeholders – Attorney General, Auditor, Secretary of State, etc. – for reasons having nothing to do with their candidacy.

5.3 The Supreme Court in McConnell sustained the disclosure provisions there in large part because of the extensive evidentiary record concerning the necessity of disclosure with respect to candidate-specific broadcasts within 60 days of the election. Assuming that no comparable evidentiary record has been established with respect to the necessity of disclosure with respect to all candidate-specific broadcasts no matter how far in advance of the election – including a year or more earlier – it would be imprudent to rely on McConnell as authority for the proposition that the disclosure provisions of this bill are suitably tailored to regulatory interests at stake.