With Lying While Campaigning Legalized, What Will Ohio's Elections Be Like?
By Jim Siegel
Did Sen. Larry Obhof really vote to fund Obamacare in Ohio? Did his Republican primary opponent, anti-abortion activist Janet Folger Porter, refuse to support personhood status for unborn crime victims?
Each candidate accused the other of lying. But unlike in past elections, neither could take such complaints before the Ohio Elections Commission for a determination of whether the ads were false -- a ruling that could have gained media attention and been used in subsequent advertising.
The federal courts have struck down Ohio's law prohibiting lying in campaigns. Now, Ohioans who were already accustomed to negative campaigning can brace themselves for what comes next, now that the reins are off.
"Most of my clients want to tell the truth," said attorney Donald Brey, who has represented Republicans in a multitude of cases before the Ohio Elections Commission. "But if a client says, 'I want to lie through my teeth, and as long as I don't defame anybody, can I get away with it?' The answer is, unless you're running for judge, yes."
By striking down Ohio's law as a First Amendment violation, the federal courts removed a quick process by which candidates could settle false-advertising complaints in time to utilize such a ruling before voters hit the polls.
Phil Richter, the 20-year executive director of the Ohio Elections Commission, said he got a regular stream of calls throughout the primary season from local and state candidates who wanted to pursue false-advertising claims. He had to tell them that the commission was no longer hearing those cases.
"I think you're going to see people making more outrageous statements as they go through the election process," he said.
Talking separately to leaders in each party, one might think there is no need for a law to ban lying. Each side insists that their candidates speak the truth, but the other side doesn't like to hear it.
The reality is, campaigns regularly seek out a nugget of truth on which to base a broader ad that might include exaggerations and half-truths, or omit key facts. For example, when Gov. John Kasich is attacked for raising sales taxes, the ads don't mention that he also has cut billions more in income taxes.
Democratic Party leaders in Franklin County didn't like when a trio of incumbents referred to themselves in ads as "endorsed" when the party actually endorsed their opponents.
In the fall of 2014, U.S. District Court Judge Timothy Black struck down Ohio's 42-year-old law banning false statements in campaigns. He wrote that "lies are bad," but with some political speech, "there is no clear way to determine whether a political statement is a lie or the truth, and we certainly do not want the government deciding what is political truth."
A few weeks ago, the U.S. 6th Circuit Court of Appeals upheld the ruling, and no further appeal is expected.
"Not having the administrative reviews and being able to go to the elections board to file complaints, that is a great disservice to our residents because the amount of falsity that is going to come is only going to rise," said Rep. Nicholas Celebrezze, D-Parma, who led candidate recruiting for the House Democrats. "We've seen in the presidential election -- the gloves are off."
Without the Elections Commission, the only recourse generally available to candidates is a defamation lawsuit, which could be tougher to prove and would likely drag on well beyond Election Day, greatly reducing its value.
"I thought our process worked well to everybody's benefit," Richter said.
Both Richter and Celebrezze would like to see legislators try to reinstate some recourse against false ads that does not run afoul of the First Amendment.
"Hopefully, we can come up with something," Richter said, adding that the first step would be removing criminal penalties that almost never were used anyway. "I think the majority of people across Ohio would feel it's something that would be valuable."
The 6th Circuit gave a good road map of the issues, attorney Brey said. "I think there's some ways, if they wanted to legislate, they might be able to try it."
Sen. Bill Coley, R-West Chester, chairman of the Senate Government Oversight Committee, said that staff attorneys are looking at the rulings to see whether some middle ground can be reached.
"It's a tricky area," he said. "I don't like people lying in campaigns. I think the law should encourage people to tell the truth, but I don't know that there's a lot we can do."
(c)2016 The Columbus Dispatch (Columbus, Ohio)