Ohio Right to Life Preliminary Injunction ruling

Published on September 5, 2008

A federal judge today granted a preliminary injunction request by The Ohio Right to Life Society, freeing the group to engage in issue advocacy close to this fall's general election. 

The Ohio Right to Life Society is challenging current state law that bars citizen organizations from using funds from their general treasury to run advertisements mentioning the name of a political candidate within 30 days of an election. 

The preliminary injunction decision frees Ohio Right to Life of these restrictions while the case is pending.

"Thanks to this ruling, Ohio Right to Life will be able to advocate close to an election, the time period when citizens are most engaged in the political issues of the day," said Stephen Hoersting, vice president of the Center for Competitive Politics and an attorney representing the group. "Importantly, this victory also lays the groundwork for fully vindicating the ability of citizens groups of all ideologies to speak out about the issues of the day in Ohio."

Ohio Right to Life, represented by attorneys from Benesch, Friedlander, Coplan, & Aronoff and the Center for Competitive Politics, argued in court filings that the Ohio state law barring it from running advertisements mentioning candidates' names close to an election is impermissible in the wake of the Supreme Court's decision last summer in Federal Election Commission v. Wisconsin Right to Life (WRTL).

In that case, Chief Justice John Roberts wrote in the majority opinion that political speech can only be regulated if the advertisement contains "express advocacy" or "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

The court, however, ruled against Ohio Right to Life Society's request for a preliminary injunction to bar the state from enforcing disclosure requirements that the group is challenging while the case is pending.

The Ohio Right to Life Society is challenging the Ohio law mandating that the group report all donors who contribute $200 or more to the group.  In McConnell v. FEC, Supreme Court upheld disclosure requirements for electioneering communications within 60 days of an election.  However, the Ohio statute requires disclosure of funders of issue ads far outside the 60 period recognized in McConnell.  The Court denied ORTL's request for a preliminary injunction against these extensive requirements. 

"The judge quotes McConnell v. Federal Election Commission in his ruling on the reporting requirements, but does so out of context," explained Hoersting.  "The judge asserts that ‘important state interests' support disclosure requirements to the entire range of ‘electioneering communications.'

"But this statement presumes that the entire range of communications are of an electoral nature and not genuine issue advocacy.  The anti-corruption interests the judge speaks of do not apply to independent issue advocacy because such advocacy is not of an electoral nature, and cannot corrupt elections.

"We are confident that the court will ultimately recognize that the state of Ohio cannot simply compile a database of citizens' political activities without providing a compelling reason," Hoersting said.  "Compelled disclosure is supposed to put sunlight on the operations of government, not glare on the operations of citizens."  "These reporting requirements can have a chilling effect on citizen speech, and at the very least impose a time consuming burden on Ohio Right to Life."

Proceedings on the merits of the case will continue in the District Court.

A copy of the decision can be found here: http://www.campaignfreedom.org/docLib/20080905_ORTL_PI.pdf