Chris Finney, an Ohio lawyer who has represented multiple clients in cases involving the Commission, is frank about his frustrations with the law.
“Ninety-eight percent of the stuff that goes on at the Ohio Elections Commission has nothing to do with the truth or falsity of the statement in question,” he says. “It has to do with trying to embarrass your opponent as Election Day approaches. You get a headline that says this person is a liar. You may get a ruling in time that you can publish printed materials that say the OEC found that my opponent lied. And that’s what it’s all about.”
In one case, Finney’s client was accused of lying because he had said that government officials had paid $60,000 to buy a building they tore down. Not so, argued the officials, who pointed out they had paid $30,000. Finney’s client pointed out that while they had paid $30,000 for the building, there had been other associated fees, such as $8,000 for lawyers and $4,000 in appraisal fees, that ultimately pushed the full cost to $60,000.
“So when you add it all together, my client was right, at least in one interpretation,” Finney comments. “Their client was right in another interpretation. Who’s telling the truth and who’s lying? Do we want government deciding that?”
Finney also dislikes the fact that commissioners don’t need to have a legal background. The panel is bipartisan, and must be composed of three Republicans, three Democrats, and one independent. Currently, four of the six members (one member recently resigned, and a replacement has not yet been appointed) have legal training.
Overturning Ohio’s false-statement law could prove tricky. A version of it has been around for over half a century, and has already survived a court challenge, with the Sixth Circuit ruling in 1991 that the portions of the law connected with speech regulation were constitutional. The SBA List has a different legal argument than was used in the earlier case, but it’s anyone’s guess how persuasive judges will find it. “I have no idea,” admits Bopp, when asked how far the case could go.
But he is confident that it will have far-ranging echoes. “It is fundamentally unconstitutional to empower the government to decide what speech is false and what speech is true,” says Bopp, “and then punish the false speech when we are talking about candidates for political office. This is at the core of First Amendment, and this is for the voters to decide, not the government.”
— Katrina Trinko is an NRO staff reporter.