Steve Driehaus is still a loser.
For those who remember, Driehaus was the Ohio politician who sued his political opponents for — get this — “depriving him of his livelihood” as a congressman. So egregious was this sorehead’s effort to criminalize people for criticizing him, even the local ACLU sided against him.
Now the folks Driehaus tried to bully into silence will get their day in the Supreme Court. Their case raises a fundamental question about speech: In a free society, who gets to decide the truth or falsity of political claims: the voters, or an unelected government panel?
The case stems from an Ohio state law that punishes “false statements” intended to influence the outcome of an election. Back in the 2010 mid-terms, the Susan B. Anthony List — a pro-life political action committee — argued that a vote for ObamaCare was a vote for abortion. And it tried to put up billboards in the Cincinnati area saying, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer funded abortion.”
Driehaus says that’s a lie, and that he lost the election because of it. In the waning days of the campaign, he lodged a “false statements” complaint with the Ohio Elections Commission. Though he dropped the complaint after the election, it was only to file a federal defamation suit — which he then lost.
Amid all the legal charges and counter-charges, the Susan B. Anthony List rightly challenged the Ohio law as unconstitutional. Last May, the group took a hit when the Sixth Circuit Court of Appeals upheld a lower court’s dismissal of all claims and held that the SBA List lacks standing to sue because the Ohio Elections Commission never actually found it guilty of making a false statement.
That’s a fraud in itself, and the Supreme Court’s decision to take up the case suggests as much. Because the smelliest aspect of this law is that the commission doesn’t have to find a group guilty to chill speech. It’s the mere threat. In this case, it had its effect: The billboard owner refused to run the SBA List ads after Driehaus’s attorney threatened to include the company in its complaint to the commission.
Bradley Smith, a law professor who served as chairman of the Federal Elections Commission and now runs the Center for Competitive Politics, says the whole thing is a game.
Here’s how it works: If you’re a candidate, he says, in the last days of the election you file a complaint against someone who’s run an ad or distributed a flier you don’t like. A three-member panel of the commission then finds “probable cause” to look into whether the accused has made a false statement.
“The complaining candidate then features this finding in advertisements run over the last weekend of the campaign,” says Smith. “It will say, ‘A panel of the Ohio elections commission found probable cause that my dirty rotten scumbag opponent’s campaign ads are lies.’ ”
Never mind that long after the election, most complaints are dismissed. The intimidation has had its effect, as the billboard example illustrates.
Alas, for an industry that relies on the First Amendment’s protections, the press corps has missed the boat about what’s a stake here. Much of the reporting assumes the SBA List was lying about abortion funding in ObamaCare — and accepts without question Driehaus’s spin about the SBA List argument: “that their ‘right to lie’ is protected by the Constitution and is therefore OK.”
The truth is there are arguments on both sides about abortion funding in ObamaCare. Driehaus and many others say an Obama executive order banned such funding, and that abortion coverage on the exchanges is handled through a separate account.
The SBA List and others argue that the separate account is an accounting gimmick, that the contraceptive mandate covers abortion-inducing drugs, that an executive order is not the law and, as Smith notes, that the order itself includes language allowing payments for abortion “in cases of rape, incest, or when the life of the woman would be endangered.”
Who’s telling the truth ? The answer is, this is the wrong question. The question is: Who gets to decide? The authors of the First Amendment were pretty clear it should be the American voter.
Steve Driehaus’s position is likewise clear. “The Ohio Elections Commission,” he states, “has been used by Democrats and Republicans alike in Ohio to maintain some decency in the electoral process. They make rulings on false statements and unfair practices in Ohio elections.”
In other words, voters can’t be trusted to evaluate the claims and reach their own conclusions. We need an unelected commission filled with political appointees who have no particular expertise in First Amendment law to rule on what speech is acceptable during an election.
And for that, Steve Driehaus remains the biggest loser of them all.