Standing - Preenforcement Challenges

Harvard Law Review, November 2014 | Go to article overview

Standing - Preenforcement Challenges


Ahead of the 2010 election, a political advocacy organization sought to post a billboard criticizing a sitting Ohio Congressman, which proclaimed: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion!" (1) But the billboard was never posted--the advertising company that owned the space refused to post the billboard due to an Ohio law that prohibits parties from making certain "false statement[s]" (2) in the course of a political campaign. (3) Last Term, in Susan B. Anthony List v. Driehaus (4) (SBA List), the Supreme Court held that the plaintiffs alleged a "sufficiently imminent injury" to confer Article III standing for their preenforcement challenge to the law. (5) Though precedent supported conferring standing, the Court's analysis that standing was proper because the organization spoke about broad issues across multiple election cycles--and thus faced threats of future enforcement--could result in recognition of standing for repeat players in political discourse without providing the same recognition for actors with an interest in a single election cycle who potentially face the same threat of enforcement.

Ohio state law prohibits parties from making certain "false statement[s]" of fact "during the course of any campaign for nomination or election to public office." (6) If a party fails to comply with the law, "any person, on personal knowledge" may file a complaint with the Ohio Elections Commission. (7) The Commission reviews each complaint, (8) and provides an expedited hearing for any complaint filed within sixty days of a primary or special election, or ninety days of a general election. (9) If the hearing panel finds "probable cause" that a failure to comply with the law occurred, it refers the matter to the full Commission for a hearing to occur no later than ten days afterward. (10) If the Commission finds that the law was violated "by clear and convincing evidence," it "shall refer the matter to the appropriate prosecutor." (11)

Susan B. Anthony List (SBA List), a "pro-life advocacy organization," had planned to run advertisements against then-Congressman Steven Driehaus in Ohio shortly before the 2010 election. (12) SBA List opposed the Patient Protection and Affordable Care Act (13) as "permit[ting] taxpayer-funded abortion," and sought to place a billboard in Congressman Driehaus's district criticizing his vote for the Act. (14) However, the planned billboard was never posted; Congressman Driehaus threatened legal action against the billboard owner, who subsequently refused to post the billboard. (15) Congressman Driehaus filed a complaint against SBA List with the Ohio Elections Commission on October 4, 2010, alleging that SBA List had violated the false-statement law by claiming he had voted for "taxpayer-funded abortion." (16) At an expedited hearing, a Commission panel found probable cause that SBA List violated the false-statement law and scheduled a full-Commission hearing for ten business days later. (17)

Before the full-Commission hearing, SBA List filed suit in the U.S. District Court for the Southern District of Ohio seeking declaratory and injunctive relief against enforcement of the false-statement law. Congressman Driehaus and SBA List agreed to postpone the full-Commission hearing until after the November election. (19) Congressman Driehaus lost his reelection bid and withdrew his complaint against SBA List. (20) After the Commission terminated the proceeding, SBA List amended its federal complaint to claim that the false-statement law unconstitutionally "chilled" the organization's speech. (21) The district court consolidated SBA List's suit with a similar lawsuit by the Coalition Opposed to Additional Spending and Taxes (COAST), (22) an organization that sought to disseminate "factual statements and opinions related to Mr. Driehaus and his support of the federal health care reform legislation." (23) The defendants moved to dismiss the case. (24)

Focusing on justiciability, (25) the district court dismissed the claims. …

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