IN THE SUPREME COURT OF OHIO

EDMUND CORSI,GEAUGA CONSTITUTIONAL COUNCIL,

Appellants,

-VS-

OHIO ELECTIONS COMMISSION

Appellee.

CASE NO. . 0

APPELLATE NO. 11-AP-001034

TRIAL COURT CASE NO: 11CVF-06-7794

OEC. Case No. 2010R-275

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS GEAUGA CONSTITUTIONALCOUNCIL AND EDMUND CORSI

Maurice A. Thompson (0078548)1851 Center for Constitutional Law208 E. State StreetColumbus, Ohio 43215Tel: (614) 340-9817Fax: (614) 365-9564MThompson@OhioConstitution.orgCounsel for Appellants

Erik Gale (0075723)Assistant Attorney GeneralConstitutional Offices Section30 East Broad Street, 16th FloorColumbus, OH 43215Tel: (614) 466-2872Fax: (614) 728-7592Email: erick.gale@ohioattorneygeneral.govCounsel for Appellee

Doug McKusick (Virginia Bar No. 72201)Rutherford InstitutePO Box 7482Charlottesville, Virginia 22906Tel: (434) 978-3888Fax: (434) 978-1789DouglasM@Rutherford.orgOf Counsel for Appellants

0

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TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION .................... 1

STATEMENT OF THE CASE AND FACTS ........................................................................................ 3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ............................................................. 7

Proposition of Law No. I: Ohio's Political Action Committee regutations, as written,enforced, and/or applied, impermissibly burden core political speech . . ................................. 8

CONCLUSION .... ...................................................................................................................................15

CERTIFICATE OF SERVICE ......... ....................................................................................................15

TABLE OF AUTHORITIES

CasesAshcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002) . ................................................ 9

Buckley v. Valeo (1976), 424 U.S. 1, 57, 96 S.Ct. 612 ..................................................................... 1, 2,15

Citizens United, 558 U.S. at , 130 S.Ct. at 898 ......................................................................... 3, 8, 10Colo. Right to Life Comm. Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007) ..................................... 14, 15

Corsi v. Elections Comm., 2012 -Ohio- 4831 ............................................................................................. 7

Davis v. Fed. Election Comm'n, 554 U.S. 724, 744, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) ................. 8

FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 262, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986)............................................................................................................................................................... 15

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 ( 1986), at 255 . .................................................... 10

Fed. Election Comm'n v. Wisc. Right to Life, Inc. (WRTL II), 551 U.S. 449, 464, 127 S.Ct. 2652, 168L.Ed.2d 329 (2007) .................................................................................................................................. 8

FW/PBS, Inc. v. Dallas (1990), 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603 .............................. 12

Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972))..... 13

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) ... 8, 11

Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966) . ................................ 2

N. C. Right to Life, Inc. v. Leake, 525 F.3d 274, 286 (4th Cir. 2008) ........................................................ 15

NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963) ..................................... 13Nat'l Right to Work Legal Defense and Educ. Found v. Herbert, 581 F. Supp. 2d 1132 (D. Utah 2008)

............................................................................................................................................................... 16New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964) . ............. 2

Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957) . .......................... 2

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. ,2010) . .................................................................. 13, 14

State ex rel. Toledo Blade Co. v. Henry Cty Court of Common Pleas, (2010), 125 Ohio St.3d 149, 926N.E.2d 634 ............................................................................................................................................. 12

State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 514 U.S. at 353-56, 115 S.Ct.1511 . ...................................................................................................................................................... 12

UFCWv. Southwest Ohio Regional Trans. Auth., 163 F.3d 341, 358-59 (6th Cir. 1998) ....................... 13

Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948) .................................... 2

StatutesR.C. 3517.01 ............................................................................................................................................. 12R.C. 3517.20 . ... ........................................................................................................................................... 9

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

In the free society ordained by our Constitution it is not the government, but the peopleindividually as citizens and candidates and collectively as associations and political

committees who must retain control over the quantity and range of debate on public issues. ^

Is a small group of Ohioans that infrequently gathers at a coffee shop to discuss public policy, and

does not donate to candidates or ballot issues or buy commercials or other advertisements, a "Political Action

Committee" ("PAC") under Ohio law because one of them occasionally makes political statements in

pamphlets and on his blog? That the Ohio Election Commission's answer in this case is "yes" illustrates the

need for the Court to review both Ohio's PAC regulations and the methods by which they are currently being

enforced.

In the wake of Citizens United, and since the United States Supreme Court reversed this Court in

McIntyre v. Ohio Elections Commission, forcing the legislature to rewrite Ohio's PAC regulations and

disclosure requirements, the opportunity has not arisen to address the outer constitutional boundaries of the

state's authority to limit communication of political thoughts by Ohioans not directly involved in the political

process, much less any particular campaign. Meanwhile, since the Court decided McIntyre 17 years ago,

internet communication has prolifically advanced, and Ohio's campaign finance authorities, have responded,

due to misunderstanding of web-based platforms, through impermissible over-regulation of even the most

basic political speech (today's "hand-crafted pamphlet" is more likely to be a blog post or Facebook page).

This case presents the most salient opportunity since McIntyre for this Court to determine the extent to which

Ohioans may share their thoughts about government, public officials, and public issues, while simultaneously

clarifying constitutional principles governing the intersection of internet speech and Ohio's speech

regulations.

And this an opportunity the Court must take. First, the extent to which Ohioans may engage in

political speech, free from government burden, is without doubt a "substantial constitutional question." The

First Amendment affords the broadest protection to such political expression in order "to assure (the)

Buckley v. Valeo (1976), 424 U.S. 1, at 57, 96 S.Ct. 612.

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unfettered interchange of ideas for the bringing about of political and social changes desired by the people."2

Although First Amendment protections are not confined to "the exposition of ideas,"3 "there is practically

universal agreement that a major purpose of that Amendment was to protect the free discussion of

governmental affairs* * *of course includ(ing) discussions of candidates* **"4 This reflects our "profound

national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-

open,"5 In fact, the Supreme Court of the United States observes that "[d]iscussion of public issues and

debate on the qualifications of candidates are integral to the operation of the system of government

established by our Constitution."6

These principles are at stake in this matter. The Ohioans entangled in the complex web of political

speech regulations before the Court face criminal prosecution, thousands of dollars in fines, loss of

anonymity, and subjection to onerous administrative burdens for the seemingly trite acts of, at most,

blogging about politics on several occasions and producing a single homemade pamphlet. Their

ensnarement is not an anomaly: it is a direct product of how Ohio's PAC regulations, deemed the nation's

most burdensome by some scholars,7 are written and enforced.

Meanwhile, the inability of the enforcement authorities to properly appreciate the quantity, source,

and significance of blog posts demonstrates that it may be unwise to use "internet activity" to label and

regulate a group of Ohioans, as the OEC has here - - in fact, the Federal Elections Commission has

specifically exempted "internet activity," including "blogging" from forming the basis for PAC or

"contribution" status.g

2 Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 ( 1957).

3 Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948).4 Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966).5 New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 ( 1964).

6 Buckley v Valeo (1976), 424 U.S. 1, 96 S.Ct. 612.

7 See Full Disclosure: How Campaign Finance Laws fail to inform voters and stifle public debate, by David Primo,

PhD, October, 2011, available at http•//www ij or images/ndf folder/otherpubs/fulldisclosure.pd£ See, specifically,"Table 7: "Minimum Dollar Thresholds for Selected Disclosure Requirements." For further evidence, and a comprehensivetreatment of this issue, see How State Campaign Finance Laws erect barriers to entry by political enreprenuers, by Jeffrey

Mylo, available at http://www.ij.orp-/about/3509.8 See 11 CFR 100.94.

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Finally, the issues presented by this case are of great public interest. If the Ohio Elections'

Commission's ruling in this case stands, Ohio's Political Action Committee regulations may be found

applicable to nearly any informal assemblage of local taxpayers, "tea party" and "occupy" groups, and even

to think tanks and other purveyors of good government, should one amongst their ranks express thoughts

"too political" in nature. The political speech of tens of thousands of additional Ohioans could be stifled

through prior restraints, loss of anonymity, disclaimer requirements, and considerable administrative costs

that intimidate and chill grass-roots speech, should this Court fail to protect the political speech here.

Citizens United boldly reinforced the principles that govern state officials' authority to suppress

grass-roots political speech by clarifying that (1) "the First Amendment does not permit laws that force

speakers to retain a campaign finance attorney * * * before discussing the most salient points of our day;"

and (2) "political speech must prevail against laws that would suppress it, whether by design or

inadvertence."9 This case both presents the opportunity, and demonstrates the need, to delineate Ohio's

authority to impose regulatory burdens on the political speech of small groups and individuals unable to

withstand these burdens.

STATEMENT OF THE CASE AND FACTS

Since 2008, Geauga County, Ohio citizen Edmund Corsi has been writing about political and other

issues under the name "Geauga Constitutional Council" ("GCC"), which was and is simply a pseudonym that

Mr. Corsi used when blogging, pamphleteering, and/or holding educational events.10 Mr. Corsi uses the

pseudonym "Geauga Constitutional Council" when expressing his political views, rather than his real name,

to enhance the effectiveness of his message, and because he feels that anonymity allows him to effectively

criticize government officials in his community without fear of reprisal.l l

GCC is not a legal entity' 2 -- it is not a corporation, registered partnership, or and LLC, and has no

organizational documents, by-laws, regulations, or membership, and does not file tax forms. GCC has no

9 Citizens United, 558 U.S. at , 130 S.Ct. at 898.10 July 29, 2010 Corsi Aff. At ¶15, Record at E1155-F96.11 Tr. of April 28, 2011 Proceedings at 65.12 Tr. of April 28, 2011 Proceedings at 67.

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treasurer, secretary, or chairman.13 It has no employer identification number or bank account.14 No

individual has any vote on any acts undertaken by GCC, or any other authority to control any actions

associated with the meetings or website.ls

Apparently, the OEC considers those individuals who met for coffee to discuss political issues to be

the "Geauga Constitutional Council Political Action Committee": Mr. Corsi and others occasionally met at a

local coffee house to discuss political issues.16 Mr. Corsi explained "there were no meetings of the Geauga

Constitutional Council. I personally had a discussion group that I would invite people to, to throw around

ideas and information on political issues or people who held office that were misspending money that - you

know, so that's what our - that's what that was. * * * There is no membership. There are no dues. There's

no structure at all. * * * It's get-togethers that I held, and still do. I get together with people all over and

discuss politics and politicians and issues of the day."I7

Unless he is posting an article that has located and approved of that someone else has written, which

will often have their name attached,18 Mr. Corsi's "blog posts" are anonymous, coming only from

"www.GeaugaConstitutionalCouncil.org.i19 Importantly, although Mr. Corsi writes about and discusses

political and philosophical issues, he has never, either in his own name or under the pseudonym GCC,

coordinated his activities with the campaign of any candidate for elected office?° There is no dispute that

Mr. Corsi has not received contributions from, raised money for, or contributed money to any ballot issue or

candidate for elective office via the GCC?1

Although the OEC concluded that "The GCC maintains an active website that offers comment on

political and civic issues in and around Geauga County, Ohio *** "22 the only evidence is that since

13 July 29, 2010 Corsi Aff. at ¶ 6, Record at E 1155-F95; Apri128, 2011 Corsi Aff. at ¶ 20, Record at G52.14 July 29, 2010 Corsi Aff. at ¶ 8, Record at E1155-F96; April 28, 2011 Corsi Aff. at ¶ 22, Record at E1155-G52.15 April 28, 2011 Zamlen-Spotts Aff. at ¶¶8, 12; Tr. of Apri128, 2011 Proceedings at 68-69.16 Tr. of April 28, 2011 Proceedings at 67 (testimony of Edmund Corsi), Record at E1155-E82.17 Tr. of Apri128, 2011 Proceedings at 67-68 (testimony of Edmund Corsi), Record at E 1155-E82-83.18 Tr. of Apri128, 2011 Proceedings at 65 (testimony of Edmund Corsi), Record at E 1155-D79.19 April 28, 2011 Corsi Aff. at ¶ 7, Record at E1155-G50.20 Tr. of Apri128, 2011 Proceedings at 65.21 July 29, 2010 Corsi Aff. at ¶ 8, Record at E 1155-F96.22 Id., at p. 1.

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beginning his communications in 2008, Mr. Corsi has been the sole administrator and writer for his weblog

("blog" or "website") located at the domain www.GeaugaConstitutionalCouncil.org.23 He exclusively

controls the content of the website.24 Mr. Corsi's blog features regular commentaries by Mr. Corsi, nearly

1,000 since 2008, and information on political philosophy and public policy issues, including occasional

reference to candidates and ballot issues.25 The OEC managed to locate less than ten that could arguably be

characterized as express political advocacy.

In addition to his blog, Mr. Corsi wrote and distributed at the Geauga County Fair a pamphlet

expressing his philosophical, public policy, and political views,26 paying for the printing of the pamphlet

himself.27 The pamphlet contains a "mission statement" of the GCC and a list perhaps carelessly labeled as a

"voter guide" on the fifth of six pages, with "most wanted" and "most unwanted" public officials - - notably,

this "voter guide" does not appear to be oriented towards influencing elections, despite its name: almost

none of the public officials upon which commentary appears were running for office or up for election at the

time the pamphlet was distributed.28

Finally, Mr. Corsi organized two separate educational events in his community, and wishes to

organize more. This case features no contention that these events were political in nature, or featured

express advocacy: OEC conceded "GCC hosted events at which public speakers of local and national

reputation addressed attendees."29 Instead, these events addressed issues of public policy, such as Second

Amendment rights.30

In response to these communications, the Geauga County Board of Elections lodged a formal

Complaint with the OEC, alleging, inter alia, "the Board has reason to believe that the [GCC] falls under the

definition of a Political Action Committee pursuant to R.C. 3517.01(B)(8);" "the [GCC] has not filed a

23 Tr. of Apri128, 2011 Proceedings at 44-46 (testimony of Edmund Corsi), Record at E 1155-E59-61.24 Tr. ofApri128, 2011 Proceedings at 68-69 (testimony of Edmund Corsi).25 Tr. ofApri128, 2011 Proceedings at 6, Record at E1155-D65.26 Tr. of Apri128, 2011 Proceedings at 44-46 (testimony of Edmund Corsi), Record at E l 155-E59-61.27 Tr. of Apri128, 2011 Proceedings at 50 (testimony of Edmund Corsi.

29 Id., at p. 2.30 Apri128, 2011 Grendell Aff. at ¶¶ 2, 4, 8, Record at El 155-G54-55; April 28, 2011.

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designation of treasurer pursuant to R.C. 3517.10(D)(1) with the Geauga County Board of Elections;" and

"the [GCC] has failed to file a statement setting forth in detail, contributions and expenditures."31

OEC conducted its full hearing on April 28, 2011, and thereafter, OEC concluded that GCC was a

Political Action Committee and was therefore required to file a Designation of Treasurer and required reports

on contributions and expenditures. On June 9, 2011, the OEC confirmed this ruling and issued a written

opinion setting forth its reasoning.

On the issue of whether to restrict Mr. Corsi's core political speech, the OEC framed its test as

follows: "[t]he essential issues before the Commission were whether there was one or more persons who

worked with or aided Mr. Corsi in conducting the activities of the GCC, whether the published materials that

were produced on the website and the pamphlets were `express advocacy' or `issue advocacy' as those terms

are used in the political arena, and what is the `primary or major purpose' of the group."32 The OEC

acknowledges that it did not consider the question of "[ijs money bein agctually being spent to elect or defeat

a candidate in any of those functions?", because "there is no mention of money in the definition of a PAC."33

The OEC analyzed Mr. Corsi's blog postings, concluding "In reviewing the materials included in the

complaint and presented at the hearing that were taken from the GCC website, a substantial number of

examples [of express advocacy] are evident;"34 "[c]ertainly such language that expressly advocates Mr.

Corsi's position on the website of GCC in opposition to such tax issues in such a prominent position must be

considered significant in degree and a major element in the organization's activities;"35 and (3) "[t]he

commission members identified all of these elements as evidence that the GCC's major purpose is to support

or oppose candidates or issues."36

With respect to the pamphlet, OEC concluded "[a]n organization that publishes a voter guide and

contemporaneously explicitly opposes candidates/or issues is an organization whose purpose, intent and

31 April 30, 2010 Letter of the Geauga County Board of Elections to Ohio Elections Commission.

32 Id., at p. 2.33 I, 3

34 Id.

35 Id.36 Id., citing Tr. 100-104, 108.

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actions can only be determined to be opposing candidates and/or issues as is required by the statute;"37 and

GCC's main purpose is to support or oppose candidates because it uses the terms "contenders for office" and

"go get or stay elected" in its pamphlet.38 And from the coffeehouse meetings, OEC found it important that

"[t]he GCC also conducted group meetings, or get-togethers, at which invited persons would `throw around

ideas and information on political issues or people who held office."39

The Court of Appeals for the Tenth District, ignoring the effect of the Supreme Court's decisions in

McIntyre and Massachusetts Citizens for Life affirmed the OEC's legal conclusions, raising several new

issues in the process, and indicating "the Council, however, argues that these requirements (and the

administrative costs they entail), when imposed on a small entity with only `de minimis forays into express

advocacy' discourages its speech and, therefore, burdens its First Amendment rights. We disagree."40 The

Court stressed the importance of the discredited "informational interest" Ohioans have in knowing the source

of writings related to politics, irrespective of whether money is being spent.a'

The Court added "[w]e conclude that [PAC disclosure and reporting requirements], even when

imposed on small PACs, are substantially related to the government's sufficiently important governmental

interests in providing the electorate with information about money in political campaigns. This transparency

`enables the electorate to make informed decisions and give proper weight to different speakers and

messages."'42 The Appellate Court further asserted that "the absence of a monetary trigger in the PAC

definition is not determinative of its legality."43 Finally, the Appellate Court impermissibly shifted the

burden of proof, which is on the state, to the citizens, evidencing a misunderstanding of internet

communication in the process.44

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

3' Id.

38 Id.39 June 9, 2011 OEC Decision and Finding at p. 1, citing Transcript, at p. 67.40 Corsi v. Elections Comm., 2012 -Ohio- 4831.41 Id., at Paragraph 23.42 Id.43 Id., at Paragraphs 28 and 29.44 Id., at Paragraph 26.

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Proposition of Law No. I: Ohio's Political Action Committee regulations, as written, enforced, and/or

applied, impermissibly burden core political speech.

Ohio Elections Commission Chairman: "I noted in your affidavit you say `Do I have to hire a lawyer toavoid these things?' Yeah, I guess so. I think it's very complicated without going to those lengths. 45

United States Supreme Court: "the First Amendment does not permit laws that force speakers to retain a

campaign finance attorney * * * before discussing the most salient points of our day. 46

The decisions of the Ohio Elections Commission and Court of Appeals permit and even facilitate

impermissible suppression of political speech by small groups, impose prior restraints, and limit spontaneous

and anonymous speech. Political "[s]peech is an essential mechanism of democracy, for it is the means to

hold officials accountable to the people."47 For this reason, when a law burdens core political speech, courts

apply strict scrutiny, under which "the Government must prove that [the law] furthers a compelling interest

related to the process of governing."48

The speech regulations at issue here first define "Political Action Committee," and then prescribe the

affirmative disclosure, registration, and reporting duties to which a PAC must adhere. Specifically, R.C.

3517.01(B)(8) defines a PAC as follows:

"Political action committee" means a combination of two or more persons, the primary or

major purpose of which is to support or oppose any candidate, political party, or issue, or to

influence the result of any election through express advocacy, and that is not a political party,

a campaign committee, a political contributing entity, or a legislative campaign fund.

Once two or more citizens are deemed a PAC, their political speech is silenced until they register with the

state; and their capacity to continue to speak is predicated on their adherence to further disclosure and

reporting requirements. Specifically, R.C. 3517.10(D)(1) mandates:

Prior to receiving a contribution or making an expenditure, every campaign committee,

political action committee, legislative campaign fund, political party, or political contributing

entity shall appoint a treasurer and shall file, on a form prescribed by the secretary of state, a

designation of that appointment, including the full name and address of the treasurer and of

45 Tr., at p. 104.46 Citizens United, at 889.47 Citizens United, 130 S.Ct. at 898.4° Fed. Election Comm'n v. Wisc. Right to Life, Inc. ( WRTL II), 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed2d 329

(2007); see also McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) ( when law

burdens core political speech, a court will "uphold the restriction only if it is narrowly tailored to serve an overriding state

interest").

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the campaign committee, political action committee, legislative campaign fund, political

party, or political contributing entity. (Emphasis added).

Further, R.C. 3517.10(D)(4) mandates strict reporting of expenses over $25, at risk of $100/day fines. In

additional to criminal prosecution, which "may commence under this section,"49 and R.C. 3517.992(Z)

authorizes $1,000 fines for violation of R.C. 3517.10. These are immense burdens on speech because "even

minor punishments can chill protected speech.',50

Imposing these burdens here, and frequently elsewhere, violates the First Amendment and the Ohio

Constitution. First, these burdens on association are constitutionally impermissible when applied to small

groups who do not spend money on politic campaigns. In Massachusetts Citizens for Life, the Supreme

Court explained as follows:

PAC disclosure "regulations may create a disincentive for such organizations to engage inpolitical speech. Detailed recordkeeping and disclosure obligations, along with the duty toappoint a treasurer and custodian of the records, impose administrative costs that many smallentities may be unable to bear. * * * Furthermore, such duties require a far more complex andformalized organization than many small groups could manage. * * * Such persons mightwell be turned away by the prospect of complying with all the requirements imposed by theAct [and] it would not be surprising if at least some groups decided that the contemplatedpolitical activity was simply not worth it."sl

Thus "the administrative costs of complying with such increased responsibilities may create a

disincentive for the organization itself to speak,"52 and the fact that the statute's practical effect may be to

discourage protected speech is sufficient to characterize [it] as an infringement on First Amendment

activities."53

Here, just as in MCFL,"[d]etailed recordkeeping and disclosure obligations, along with the duty to

appoint a treasurer and custodian of the records" are at issue. As Mr. Corsi affirmed, imposition of PAC

requirements would cause him to "simply cease to speak out on political issues," (1) to avoid "retaliation;"

and (2) because "Ohio's campaign finance laws are very intimidating" and he would "have to hire a

49 R.C. 3517.20(D).50 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389 (2002).sl FEC V. Massachusetts Citizens for Life, 479 U.S. 238 (1986), at 255.

52 Id., at 255, Footnote 7.

53 Id.

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campaign finance lawyer to assist, * * * a cost [he] certainly cannot afford."54 And this, while no money

"gets spent on attempting to elect or defeat political candidates or issues."55 However, "the First Amendment

does not permit laws that force speakers to retain a campaign finance attorney *** before discussing the

most salient points of our day."56

Secondly, application of Ohio's PAC regulations to individuals and small groups impermissibly

burdens the right to anonymous speech. In McIntyre v OEC, a case where an Ohioan sought to distribute

pamphlets opposed to a levy tax increase without disclosures on the pamphlets,57 the Supreme Court

invalidated the Ohio's PAC regulations, acknowledging that (1) "[t]he freedom to publish anonymously is

protected by the First Amendment, and ... extends beyond the literary realm to the advocacy of political

cause;" and "the prohibition of anonymous campaign literature abridges the freedom of speech in violation

of the First Amendment."58 The Court explained that "the name and the author add little, if anything to the

reader's ability to evaluate the document's message;"59 and added the following:

A written election-related document-particularly a leaflet-is often a personally craftedstatement of a political viewpoint.* * *As such, identification of the author against her will is

particularly intrusive ***. Disclosure of an expenditure and its use, without more, revealsfar less information. *** even though money may "talk," its speech is less specific, less

personal, and less provocative than a handbill ***.60

Similarly here, Mr. Corsi's pamphlets and posts on www.geaugaconstitutionalcouncil.org are clearly

"personally crafted statements of a political viewpoint" that reveal "the content of his thoughts on

controversial issues."61 Further, Ohio's PAC laws require surrender of anonymity or forced association and

enlistment of professional help because (1) the speaker must hire a treasurer or disclose himself as the

treasurer; (2) Ohio SOS Form 30-D, a public record obtainable by anyone, actually requires the street

address of the PAC - - someone's home; and (3) R.C. 3517.20(A)(3), (A)(4), (A)(6), and (A)(7) apply to

54 April 28, 2011 Affidavit of Ed Corsi, Paragraph 14.55 Id., at Paragraph 17.56 Citizens United, at 889.57 Mclntyre v. Ohio Elections Commission (1995), 514 U.S. 334, at 336.

58 Id., at Syllabus.59 Id., at 348, 349.60 Id., at 355.61 July 29, 2010 Affidavit of Edmund Corsi, Paragraphs 4, 7, 24.

10

PACs and "limited" PACs and require disclosure of the "name and residence or business address" of the

treasurer "in a conspicuous place" on any political publication "for or against a candidate" or "for or against

an issue." This, even though, as expressed in McIntyre, "people are intelligent enough to evaluate the source

of an anonymous writing."62

Third, Ohio's PAC regulations, unlike those of other states, are a prior restraint because they prohibit

speech without a license even before any money is spent or communications are initiated. This Court

recently explained "[t]he phrase `prior restraint' * * * is a term of art referring to * * * any `governmental

restriction on speech or publication before its actual expression."'63 And "[a]lthough prior restraints are not

unconstitutional per se, there is a heavy presumption against their constitutional validity."64

Citizens United recently upheld pure disclosure laws that were triggered once $10,000 was spent, only

because they "do not prevent anyone from speaking," and provide information about "sources of election-

related spending."65 Meanwhile, federal PAC regulations require PAC registration only after, inter alia, an

association receives $1000 earmarked for express advocacy, as required by the definition of "political

committee," with federal courts describing the only permissible alternative as "rather than waiting until it

expends $1,000."66 Thus, federal PAC burdens are triggered by money received or spent on politics.

Contrarily, in Ohio, under R.C. 3517.10(D)(1): "Prior to receiving [any] contribution or making [any]

expenditure, every *** PAC *** shall appoint a treasurer and shall file, on a form prescribed by the

secretary of state, a designation of that appointment, including the full name and address of the treasurer."67

Ohio actually compels its citizens to register as a PAC and surrender their anonymity before speaking at all,

62 See 514 U.S. at 353-56, 115 S.Ct. 1511.63 State ex rel. Toledo Blade Co. v. Henry of Common Pleas Cty. Court (2010), 125 Ohio St.3d 149, 926 N.E.2d 634.

64 Id., citing FW/PBS, Inc. v. Dallas (1990), 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603; Seven Hills, 76 Ohio

St.3d at 307, 667 N.E.2d 942.65 OEC Merit Brief, p. 1°o.66 SpeechNow org v. FEC, 599 F.3d 686 (D.C. Cir. ,2010).67 See R.C. 3517.01(A)(5),(A)(6) for defmitions of "contribution" and "expenditure." Neither is limited tocontributions for or spending on express advocacy.

11

even if those citizens have spent no dollars on express advocacy, and have no plans to do so in the future,

such as here.68

Fourth, this attribute - - the lack of a monetary trigger - - creates mass confusion when applying the

PAC label to Ohioans. Vague laws are those that may not only "trap the innocent by not providing fair

warning" or foster "arbitrary and discriminatory application" but also operate to inhibit protected expression

by inducing "citizens to `steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden

areas were clearly marked."'69 "Because First Amendment freedoms need breathing space to survive,

government may regulate in the area only with narrow specificity."70 The void-for-vagueness doctrine not

only ensures that laws provide "fair warning" of proscribed conduct, but it also protects citizens against the

impermissible delegation of basic policy matters "for resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory application." 7 ' To this end, without "clear standards

guiding the discretion of public officials" with enforcement authority, there is a risk that those officials will

"administer the policy based on impermissible factors,"72 and a statute that fails to constrain "an official's

decision to limit speech" with "objective criteria" is unconstitutionally vague.73 Here, due to the lack of a

monetary trigger, OEC must guess as to the primary or major purpose of the organization before it has spent

a dime, - - in Ohio, if an individual or group crafts a "mission statement" wrong on a personal blog, the

"group" is involuntarily committed as a PAC.

Meanwhile, Ohio maintains no "compelling or substantial state interest" in regulating the speech at

issue here. While "the public has an interest in knowing who is speaking about a candidate and who is

fundinQthat speech* **"74 the state maintains no informational interest in merely "identifying the sources

68 See Full Disclosure: How Campaign Finance Laws fail to inform voters and stifle public debate, by David Primo,

PhD, October, 2011, available at b_q://www.ii.orv,/imaizes/Tdf folder/otherpubs/fulldisclosure.nd£ See, specifically,"Table 7: "Minimum Dollar Thresholds for Selected Disclosure Requirements," For further evidence, and a comprehensive

treatment of this issue, see How State Campaign Finance Laws erect barriers to entry by political enreprenuers, by Jeffrey

Mylo, available at http://www.ij.ora/about/3509.69 Grayned u City ofRockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972)).

70 NAACP u Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).

" UFCW, 163 F.3d at 358-59 (citing Grayned, 408 U.S. at 108-109, 92 S.Ct. 2294).

72 UFCW, 163 F.3d at 358-59.'3 Id.

74 SpeechNow org v. FEC, 599 F.3d 686 (D.C. Cir. ,2010).

12

of support for and opposition to" a political position or candidate sufficient to justify any First Amendment

burden, much less the considerable burdens here.75 The difficulty in applying these regulations is evidenced

by the fact that the OEC and 10th District believe that the state has an interest in regulating political speech

that even the Ohio General Assembly has disclaimed a state interest in regulating. When the General

Assembly redrafted Ohio's Campaign Finance statutes in response to McIntyre, it specifically affirmed "This

state recognizes the right of individuals * * * and political action committees that make minor expenditures

to anonymously issue and distribute written campaign literature as defined by the United States Supreme

Court in McIntyre v. Ohio Elections Commission, "76 and "[t]his state further recognizes that political action

committees that make minor expenditures on written campaign literature to support or oppose a ballot issue

should be accorded the same status as individuals who anonymously issue or distribute such literature."77 In

fact, the state's only avowed interest in House Bill 99 was "in requiring organizations and political action

committees that make significant expenditures on written campaign literature to disclose their identities on

that literature."78 The legislature actually recognizes the absence of a state interest in regulating the type of

basic and minimal speech at issue here.

Fourth, here, the OEC's method of enforcing the "primary or major purpose" test is not narrowly-

tailored to effectuate even the state's putative informational interest "knowing who is speaking about a

candidate and who is funding that speech" because (1) it entirely ignores the issue of whether a regulated

person or association is funding speech for or against a candidate at all; and (2) it invites regulation of

Ohioans' politically-oriented communications through speculation upon whether Ohioans might fund

political speech for or against candidates in the future. Because R.C. 3517.10(D) appears to allow OEC to

force Ohioans to endure PAC burdens before they speak or fund speech, OEC may, and does, guess at the

association's primary or major purpose by relying on ill-considered non-authoritative statements in blogs or

pamphlets. Thus, OEC's standards in applying the "primary or major purpose" test ( 1) ignore actual

75 SpeechNow. org v. FEC, 599 F.3d 686 (D.C. Cir. ,2010).76 1995 H 99, § 5, eff. 8-22-95. Emphasis added." 1995 H 99, § 6, eff. 8-22-95. Emphasis added.78 See 1995 H 99, § 6, eff. 8-22-95 (Emphasis added).

13

spending on express advocacy for or against identified candidates. And in fact, OEC admits that in

determining GCC's primary or major purpose, it did not inquire into whether "money [is] actually being

spent to elect or defeat a candidate in any of those functions" because "there is no mention of money in the

definition of a PAC."79 Yet, an associations' primary or major purpose cannot, constitutionally, be

calculated without taking account of spending on express advocacy.80 Using a test that ignores spending in

determining whether Ohioans' free speech is subject to PAC status and all of its burdens on speech divorces

the only "legitimate state interest in regulating speech" from the regulation of that speech.

Next, OEC's policy in applying the "primary or major purpose" test is also not narrowly-tailored

because in its application the state must assess the proportion of an organization's overall work that is

express advocacy in order to properly determine whether that organization's "primary purpose" is express

advocacy, or else, a statute risks "regulating a relatively large amount of constitutionally protected speech

unrelated to elections merely to regulate a relatively small amount of elections-related speech."81 Yet, OEC

prefers to flippantly seek out examples of expressed advocacy and ignore the entire body of communication

an individual or association has engaged in, such as here, where Mr. Corsi has posted a blog post nearly

every day since 2008, and yet just several of these are cited as express advocacy.82 While the Appellate

Court suggest that the burden was on Appellants to produce everything he/they had ever written, the

"primary or major purpose" standard is an element of PAC status, and the burden is on the state to prove it.

79 Corsi Merit Brief, p. 2, citing OEC Decision, p. 3.80 MCFL, supra., at 262. MCFL was not required to be a PAC even though it "occasionally engaged in independentspending on behalf of candidates." Here, there was no such spending, and if any, on minimal - - certainly much less thanMCFL.81 See Leak, Supra, at 289; See also Colo. Right to Life Comm. Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007); Nat'l

Right to Work Legal Defense and Educ. Found v. Hsrbcrt, 581 F. Supp. 2d 1132 (D. Utah 2008)82 See OEC Decision and Finding, at p. 6; The OEC relied on a handful of statements on GCC's website that appearedto engage in express advocacy, but failed to note what the ratio of such statements was to those not constituting expressadvocacy. The counsel for the Complainant at the OEC hearing, speaking of the GCC website, admitted that "they post veryregularly, sometimes daily, so I posted some samplings [as evidence]." See Tr. P.6 E1155-E22 (statement of Ms. SheilaSalem of Geauga County Prosecutor's Office). The OEC lists four examples of such advocacy; this is out of a total of 459posts on the website between July 10, 2008 and September 16, 2011. Seehttp://www.geaugaconstitutionalcouncil.org/archives.cfin (accessed September 21, 2011). It is impossible for this amount ofexpress advocacy to be described as the primary or major purpose of such a website.

14

Indeed, the OEC's Chairman has declared the test to be "we have to determine * * * is advocacy a

primary or major purpose or something less than a primary purpose?"83 The OEC's legal advisor added

"there is no other identification, there's not that I'm aware of, of what `primary or major' is."84 The OEC

Chairman responded: "based primarily on the mission statement, * * * one of your major or primarygoals is

to the things that the statute says it regulates, and that's express advocacy. If not totally, but it's a lot of

express advocacy."85

However, in the PAC context, in Buckley, for example, the Supreme Court narrowly construed the

federal definition of a PAC, to "only encompass organizations that are under the control of a candidate or the

major purpose of which is the nomination or election of a candidate."86 The Supreme Court reasoned this

narrow interpretation ensured the scope of the law was not "impermissibly broad."87 Emerging from Buckley

was the so-called major-purpose test, "a judicial construct that limits the reach of the statutory triggers ... for

[PAC] status."gg "If organizations were regulable merely for having the support or opposition of a candidate

as `a major purpose,' political committee burdens could fall on organizations primarily engaged in speech on

political issues unrelated to a particular candidate," and "[t]his would *** subject a large quantity of

ordinary political speech to regulation."89

For each of these reasons, this Court must accept jurisdiction over these issues, and find Ohio's PAC

regulations unconstitutional on their face or as-applied, or issue a narrowing construction before federal

courts do so.

CONCLUSION

This Court must accept jurisdiction over this matter, and protect Ohioan's rights to share basic

political thoughts without subjection to unconstitutionally burdensome regulations.

83 Transcript of Apri128, 2011 OEC Hearing on 2010R-275, p. 99

sa Id.85 Id., pp. 103-104.86 see Buckley, 424 U.S. at 74-80, 96 S.Ct. 612,$' See id. at 79-80, 96 S.Ct. 612.88 Colo. Right to Life Comm. v. Coffman, 498 F.3d 1137, 1153 (10th Cir.2007); accord FEC V. Mass. Citizens for Life,

Inc. (MCFL), 479 U.S. 238, 262, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (recognizing Buckley's major-purpose test).

89 See N.C. Right to Life, Inc. v. Leake (4t" Cir. 2008), 525 F.3d 274, 286, citing Buckley v. Valleo, 424, U.S., at 79.

15

Respectfully s bmitted, l/

Maurice A. Thom son (0078548)1851 Center for Constitutional Law208 E. State StreetColumbus, Ohio 43215Tel: (614) 340-9817Fax: (614) 365-9564MThompsonra?OhioConstitution.org

Doug McKusick (Virginia Bar No. 72201)Rutherford InstitutePO Box 7482Charlottesville, Virginia 22906Tel: (434) 978-3888Fax: (434) 978-1789DouglasM@Rutherford.org

CERTIFICATE OF SERVCE

The foregoing was served upon opposing counsel this 3`d day of December, 2012.

'IlAt

Maurice A. Thompson (0078548)1851 Center for Constitutional Law208 E. State StreetColumbus, Ohio 43215Tel: (614) 340-9817Fax: (614) 365-9564MThompson@Oh ioConstitution.or^z

16

0A003 - J69

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Edmund Corsi, and GeaugaConstitutional Council,

Appellants-Appellants, No. 11AP-1034(C.P.C. No. 1iCVF-o6-7794)

V.(REGULAR CALENDAR)

Ohio Elections Commission,

Appellee-Appellee.

D E C I S I O N

Rendered on October 18, 2012

Maurice A. Thompson and Ryan D. Walters, for appellants.

Michael DeWine, Attorney General, Erick D. Gale, Michael J.

Schuler and Erin Butcher-Lyden, for appellee.

Wolfe & Russ LLC, and Andrew E. Russ, for amicus curiaeOhio Liberty Council.

APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

(111 Appellants, Edmund Corsi and the Geauga Constitutional Council, appeal

from a judgment of the Franklin County Court of Common Pleas affirming a decision of

appellee, the Ohio Elections Commission ("OEC"). The OEC found that the Geauga

Constitutional Council ("the Council") was a political action committee ("PAC") and that it

failed to comply with requirements imposed on PACs by Ohio law. For the following

reasons, we affirm that judgment.

0A003 - J70

No. iiAP-1034 2

1. Factual and Procedural Background

1121 In April 2010, the Geauga County Board of Elections ("the Board") referred

Corsi and his group, the Council, to the OEC. The Board claimed that it had reason to

believe that the Council was a PAC and that the Council failed to comply with

requirements imposed on PACs. R.C. 3517.oi(B)(8) defines a PAC as "a combination of

two or more persons, the primary or major purpose of which is to support or oppose any

candidate, political party, or issue, or to influence the result of any election through

express advocacy, and that is not a political party, a campaign committee, a political

contributing entity, or a legislative campaign fund." R.C. 3517.10 places certain reporting

and disclosure requirements on PACs. These requirements include the designation of a

treasurer and the filing of periodic financial statements.

{9[3} The OEC held a hearing regarding Corsi and the Council. At the hearing, Ed

Ryder, a member of the Board, testified that he received a pamphlet authored by the

Council that was being handed out at a county fair. The Council wrote the pamphlet and

it appeared to endorse or support certain elected officials or candidates while attacking

others. Ryder asked other Board members whether the Council was a registered PAC. It

was not, so the Board asked Corsi to register the Council as a PAC. Corsi declined.

[141 Corsi testified at the hearing and also submitted an affidavit. Corsi stated

that he believes that most elected officials ignore the constitution and, as a result, he is

concerned that he will lose his freedoms in this country. (Tr. 48.) He created the Council

and its website as a way to expose and criticize local government officials without fear of

reprisals. He claimed that the opinions in the Council's pamphlet were his own and that

he was solely responsible for the content on the Council's website. He also testified that

the use of the terms "us" and "we" in the pamphlet, arguably indicating that the Council

may be more than just himself, was just "loose terminology on my part." (Tr. 50.) Corsi

also testified that he believed the Council's website and pamphlet were educational in

nature and not endorsements of any particular candidate. He testified that he typed,

prepared, and paid for the pamphlet by himself and guessed that it cost him a couple

hundred dollars to publish the pamphlet. (Tr. 45.) Corsi also held various informational

events for which people purchased seats to attend and for which Corsi paid for food and

for speakers. He did not know how much the events cost him or how much he received as

0A003 - J71

No. 11AP-1034 3

a result. He also paid $4o a month in order to support the Council's website. Corsi never

disputed that he did not register the Council as a PAC, nor did the Council ever designate

a treasurer or file periodic financial statements as required of PACs.

1151 The Board presented an affidavit from a woman who attended "meetings" of

the Council and claimed to be a member of the Council. Corsi disputed her claim, arguing

that those meetings were not Council meetings, but just a "discussion group," to which he

invited people for the purpose of discussing politics. (Tr. 67.) Appellant filed two other

affidavits from people who claimed they attended a number of those meetings. Those

individuals denied that the Council had any members. However, both individuals also

stated that they had produced and handed out political pamphlets on behalf of the

Council, and each affidavit used the word "we" when referring to the Council.

[161 Corsi argued to the OEC that the Council was not a PAC, in part, because he

was its only member. The OEC disagreed, noting the involvement of at least two other

people in the Council and the use of plural terms in the Council's pamphlets. The OEC

determined that the Council was a PAC under Ohio law. It further held that the Council

failed to file a designation of treasurer as required by R.C. 3517.1o(D)(1) and a statement

of contributions and expenditures required by R.C. 3517.1o(A). The OEC specifically

indicated that it did not find any violations against Corsi as an individual. (Tr. 116-18.)

The Franklin County Court of Common Pleas affirmed the OEC's decision.

1171 Appellants appeal to this court and assign the following errors:

First Assignment of Error: The trial court erred by notdeclaring R.C. 3517.o1(B)(8), R.C. 3517.1o(D)(1) and (4), R.C.3517•10(A), and OAC 3517-1-14(B) unconstitutional, whetheron their face or as applied to the parties and/orcommunications at issue in this case.

Second Assignment of Error: The trial court erred by notnarrowly construing R.C. 3517.o1(B)(8), R.C. 3517.1o(D)(1)and (4), R.C. 3517.1o(A), and OAC 3517-1-14(B), so as to findthem inapplicable to the communications at issue in this case,thereby saving their constitutionality.

II. Standards of Review

1181 Pursuant to R.C. 3517.157(D), a party adversely affected by a final

determination of the OEC may appeal pursuant to R.C. 119.12. The Team Working for

0A003 - J72

No. 1IAP-1034 4

You v. Ohio Elections Comm., 142 Ohio ApP.3d 114, 119 (loth Dlst.2001). In an

administrative appeal pursuant to R.C. 119.12, the court of common pleas reviews an

order to determine whether it is supported by reliable, probative, and substantial

evidence, and is in accordance with the law. Levine v. State Med. Bd. of Ohio, loth Dist.

No.1oAP-962, 2o11-Ohio-3653, ¶ 12.

{y[ 9} The standard of review is more limited on appeal to this court. Unlike the

lower court, this court does not determine the weight of the evidence. Rossford Exempted

Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705, 707 (1992). In

reviewing the court of common pleas' determination that the commission's order is

supported by reliable, probative, and substantial evidence, this court's role is confined to

determining whether the court of common pleas abused its discretion. Roy v. Ohio State

Med. Bd., 8o Ohio App.3d 675, 68o (loth Dist.1992). The term abuse of discretion

connotes more than an error of law or judgment, it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219 (1983). However, on the question of whether the commission's order is in accordance

with the law, this court's review is plenary. Dann v. Ohio Elections Comm., loth Dist. No.

11AP-598, 2012-Ohi0-2219, ¶ 9, citing Univ. Hosp., Univ. of Cincinnati College of

Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343 (1992)• Because this case

concerns constitutional issues such as political speech and the freedom of association, we

apply the de novo, plenary review of the OEC's decision without deference to the agency's

decision. Lesiak v. Ohio Elections Comm., 128 Ohio App.3d 743, 746 (loth Dist.1998),

citing Jacobellis v. Ohio, 378 U.S. 184, 189 (1964)•

{y[ 10} This case involves the Council's assertions that Ohio's laws defining and

regulating PACs are unconstitutional and violate its First Amendment rights to freedom of

speech and association. The First Amendment to the United States Constitution provides

that "[c]ongress shall make no law * * * abridging the freedom of speech." When a law

burdens core political speech, it must survive strict scrutiny. Fed. Election Comm. v.

Wisconsin Right to Life, Inc., 551 U.S. 449, 464-65 (2007). Under that review, the state

must prove that the law is narrowly tailored to further a compelling government

interest. Id. Other burdens, such as reporting, disclaimer and disclosure requirements,

may burden the ability to speak, but they impose no ceiling on campaign-related

0A003 - J73

No. 11AP-1034 5

activities and do not prevent anyone from speaking. Citizens United v. Fed. Election

Comm., 130 S.Ct. 876, 914 (2010). For this reason, such burdens are only subjected to

an "exacting scrutiny," which requires a substantial relation between the requirement

and a sufficiently important governmental interest. Id.; Doe v. Reed, 130 S.Ct. 2811,

2818 (2010). To withstand this scrutiny, "'the strength of the governmental interest

must reflect the seriousness of the actual burden on First Amendment rights.' " Id.,

quoting Davis v. Fed. Election Comm., 554 U.S. 724 (2oo8).

{y[ 11} In determining the constitutionality of a legislative act, this court must first

determine whether the party is challenging the act on its face or as applied to a particular

set of facts. Yajnik v. Akron Dept. of Health, Hous. Div., 1o1 Ohio St.3d io6, 2004-Ohio-

357, ¶ 14. An "as applied" challenge asserts that a statute is unconstitutional as applied to

the challenger's particular conduct. Columbus v. Meyer, 152 Ohio App.3d 46, 2003-Ohio-

1270, ¶ 31. In contrast, a facial challenge asserts that a law is unconstitutional as applied

to the hypothetical conduct of a third party and without regard to the challenger's specific

conduct. Id. To succeed in a typical facial attack, the Council would have to establish

"that no set of circumstances exists under which [the definition] would be valid."

United States v. Salerno, 481 U.S. 739, 745 (1987). However, the United States

Supreme Court has recently recognized, in the First Amendment context, "a second type

of facial challenge," whereby a law may be invalidated as overbroad if " 'a substantial

number of its applications are unconstitutional, judged in relation to the statute's

plainly legitimate sweep.' " United States v. Stevens,13o S.Ct. 1577, 1587 (2010), citing

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449,

fn. 6 (2008).

{y[ 12} Here, although the Council claims both facial and as applied constitutional

challenges, it is clear that the Council's argument is more properly analyzed as an applied

challenge, as the Council argues that Ohio's PAC laws are unconstitutional when applied

to an entity such as itself with small contributions and expenditures.

III. R.C. Chauter 3517-Ohio's Political Action Conmiittee Laws

11131 Before we address the questions presented by the Council's appeal, we must

first clarify what is not at issue. First, the OEC did not take any action or find any

violations against Corsi as an individual. The OEC's decision impacts the Council and the

0A003 - J74

No. 11AP-1034 6

Council alone. Nothing in the OEC's decision prevents him, as an individual, from

speaking on the issues he considers important. For this reason, Corsi cannot claim that

the OEC violated his individual constitutional rights. Second, appellants do not challenge

the OEC's factual findings that the Council is a PAC or that the Council did not comply

with the requirements imposed on PACs by R.C. 3517.1o. Lastly, this case does not

involve monetary limits on PACs' contributions or expenditures or the amounts that must

be disclosed. Instead, appellants clarified at oral argument that they are challenging

Ohio's definition of a PAC in R.C. 3517.o1(B)(8) and the requirements imposed as a result

of that designation. We, therefore, consider the Council's two assignments of error

together.

A. PACs and their Registration, Reporting and Disclosure Requirements

{9[14} As already noted, R.C. 3517.o1(B)(8) defines a PAC as "a combination of two

or more persons, the primary or major purpose of which is to support or.oppose any

candidate, political party, or issue, or to influence the result of any election through

express advocacy, and that is not a political party, a campaign committee, a political

contributing entity, or a legislative campaign fund." The Council argues that Ohio's

definition of a PAC burdens its core political speech and, therefore, the state must show

that the definition is narrowly tailored to serve an overriding state interest.

11151 We reject the Council's premise that Ohio's definition of a PAC, by itself,

burdens political speech. "It is not the designation as a PAC but rather the obligations

that attend PAC designation that matter for purposes of First Amendment review." Natl.

Organizafion for Marriage v. McKee, 649 F•3d 34, 56 (1st Cir.2o11) ("NOM I").

Therefore, we turn to R.C. 3517.10 to determine whether the obligations imposed on the

Council as a PAC survive exacting scrutiny. Id.; Natl. Organization for Marriage, Inc. v.

McKee, 669 F•3d 34, 39-40 (1st Cir.2o12) ("NOM II"); Doe at 2818 (noting that Supreme

Court has consistently reviewed disclosure requirements under "exacting scrutiny").

{9[16} As relevant here, R.C. 3517.1o(D)(1) requires PACs to file a form designating

a treasurer for the organization. The name and address of that person must appear on

certain political publications the PAC issues. See, e.g., R.C. 3517.2o(A)(3). R.C.

3517•1o(D) requires PACs to file periodic financial statements of its contributions and

expenditures. Those statements must include the amount and date of the contribution or

0A003 - J75

No. 11AP-1034 7

expenditure along with the name and address of the person or entity from whom

contributions are received or to whom expenditures are made. R.C. 3517.io(B)(4) and

(5). These requirements do not prohibit the Council from expressing its views. Citizens

United at 914. They only require disclosure of certain information. The Council, however,

argues that these requirements (and the administrative costs they entail), when imposed

on a small entity with only "de minimis forays into express advocacy" discourages its

speech and, therefore, burdens its First Amendment rights. We disagree.

11171 The United States Supreme Court has recognized the possibility that

"compelled disclosure, in itself, can seriously infringe on privacy of association and belief

guaranteed by the First Amendment." Buckley v. Valeo, 424 U.S. 1, 64 (1976); see also

Fed. Election Comm. v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 254 (1986)

("Detailed recordkeeping and disclosure obligations, along with the duty to appoint a

treasurer and custodian of the records, impose administrative costs that many small

entities may be unable to bear."). Nevertheless, the United States Supreme Court

upheld the reporting and disclosure requirements on PACs at issue in Buckley. The

reporting and disclosure requirements upheld in Buckley are similar to the requirements

in R.C. 3517.io. They included forced registration and record keeping of contributions

and expenditures, as well as periodic financial statements. Buckley at 63-64. Although

the Supreme Court noted the potential infringements on First Amendment right that

compelled disclosure entailed, it concluded in Buckley that the government presented

sufficiently important interest to outweigh the possibility of those infringements. Id. at

65. Those interests included providing the electorate with information about campaign

money, deterring corruption and avoiding the appearance of corruption by exposing large

contributions to the public, and gathering information to detect violations of contribution

limitations. Id. at 67-68; In re Evans, loth Dist. No. o6AP-539, 2oo6-Ohio-4690, ¶ 42

(noting interests).

{y[ 18} In the present case, the OEC similarly argues that the reporting and

disclosure requirements serve its important interest in providing the electorate with

information regarding where political campaign money comes from and how it is spent.

The United States Supreme Court recognized this interest as one "sufficiently important"

to support campaign finance laws. Buckley. The Supreme Cou_rt has also recognized an

0A003 - J76

No. 11AP-1034 8

"informational interest" the public has in "knowing who is speaking about a candidate

shortly before an election" that justifies disclosure requirements. Citizens United at 915-

16; see also Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 99o, 1005-6 (9th

Cir.2o1o) ("This vital provision of information repeatedly has been recognized as a

sufficiently important, if not compelling, governmental interest."). We agree. Given the

ever-changing technological advances that allow the public to be inundated with political

views from a multitude of different persons, platforms, and viewpoints, this

"informational interest" that Ohio asserts becomes more important every day. The public

should be able to gather as much information as possible in order to judge the merits of

different positions, and that information includes "'the source and credibility of the

advocate.'" Brumsickle at ioo8, quoting First Natl. Bank of Boston v. Bellotti, 435 U.S.

765, 791-92 (1978).

11191 The Council argues, however, that this interest is not substantially served

when the disclosures are required by an entity, such as itself, that spends small amounts

of money and engages, if at all, in only limited express advocacy. In support of this

argument, the Council mainly relies on two cases from the federal court of appeals.

Canyon Ferry Rd. Baptist Church v. Unsworth, 556 F.3d 1021 (9th Cir.2009); Sampson

v. Buescher, 625 F.3d 1247 (ioth Cir.2olo). In addition to not being controlling case law

in this district, the Council's reliance on those cases is misplaced because they are both

factually distinguishable, and because both cases expressly limited their holdings to the

specific facts in front of them. Canyon Ferry at 1033-34; Sampson at 1261.

{9[20} In Canyon Ferry, the state of Montana concluded that a church was an

"incidental political committee" because the church allowed the use of its facilities to

gather signatures on petitions in support of a ballot issue and the church's pastor

encouraged people to sign the petition. Under Montana law, an incidental political

committee was formed, in part, by making a contribution or expenditure to support or

oppose a candidate or issue. Id. at 1026. The terms "expenditures" and "contributions"

were defined to include the church's in-kind expenditures (use of its facilities). As a result

of the church's actions, the state sought to impose disclosure and reporting requirements

for an incidental political committees on the church. As it related to the church's First

Amendment argument, the court concluded that these de minimis in-kind expenditures

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No. iiAP-1034 9

did not justify the burdens imposed on the church. The court expressly limited its holding

to the facts of that case and stated that it was not concerned with the legality of imposing

disclosure requirements as applied to monetary contributions of any size. Id. at 1033-34

(rejecting requirements as applied, while noting that similar requirements have ordinarily

been justified in other cases).

11211 The court in Sampson was also faced with disclosure and reporting

requirements imposed on a group concerned with a ballot issue and not one seeking to

elect or defeat a candidate. The court noted the significance of that difference, that "the

justifications for requiring disclosures in a candidate election may not apply, or may not

apply with as much force, to a ballot initiative" because "there is no need for concern that

contributors can change a law enacted through a ballot initiative as they can influence a

person elected to office." Id. at 1249. The group at issue in Sampson was a ballot

initiative committee that opposed the annexation of their neighborhood into a nearby

town. The group raised less than $1,ooo in contributions, but the state of Colorado

sought to have them register as an "issue committee." The court concluded that the

requirements were unconstitutional, but did so based largely on the fact that the group

was a ballot issue committee. It concluded that the state's asserted legitimate interest was

"significantly attenuated when the organization is concerned with only a single ballot

issue and when the contributions and expenditures are slight." Id. at 1259. While the

court did note the small size of the group's contributions and expenditures, the focus of

the court's opinion was on the nature of the group's interest-a single ballot issue.

{9[22} Here, the Council is not concerned with a single ballot initiative or issue.

The Council's writings show a concern for candidates and locally-elected officials in a wide

range of offices, and the OEC concluded that the Council's "primary or major purpose"

was to support or oppose candidates or issues. Additionally, the organization in Canyon

Ferry spent no money, but rather performed acts that constituted "in-kind expenditures"

under state law. Here, Corsi conceded that he spent money on the Council and its website

and that he received money from holding informational events. Because of these

significant factual differences, we find the cases cited by the Council unpersuasive. See

also ProtectMarriage.com v. Bowen, 83o F.Supp.2d 914, 943-44, 949-50 (E.D. Cal.2o11)

(rejecting plaintiffs reliance on same cases).

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No. iiAP-1034 10

11231 We are also unpersuaded by the argument that the PAC disclosure and

reporting requirements are unconstitutional as applied to the Council simply because the

Council raises and spends a small amount of money on political activities. We conclude

that these requirements, even when imposed on small PACs, are substantially related to

the government's sufficiently important governmental interests in providing the

electorate with information about money in political campaigns. This transparency

"enables the electorate to make informed decisions and give proper weight to different

speakers and messages," Citizens United at 916, and provides "'the voting public with

the information with which to assess the various messages vying for their attention in

the marketplace of ideas.'" Family PAC v. McKenna, 685 F.3d 8oo, 8o8 (9th Cir.2o12),

quoting Brumsickle at ioo8.

B. The PAC Definition-"Primary or Major Purpose"

{y[ 24} In Ohio, to qualify as a PAC, the organization must, as its "primary or major

purpose," support or oppose any candidate, political party, or issue, or influence the result

of any election through express advocacy.' R.C. 3517.o1(B)(8). The Council argues that

its "major or primary purpose" cannot be express advocacy because it spends such an

insignificant amount of money for that purpose. While we agree that the amount of

money involved may be a factor in determining an entity's "primary or major purpose," it

is not the sine que non of that analysis. The determination of an organization's "primary

or major purpose" is a fact intensive analysis and such a determination must weigh a

number of considerations. See The Real Truth About Abortion, Inc. v. Fed. Election

Comm., 68i F.3d 544, 555-58 (4th Cir.2o12) (rejecting claim that only method to

determine PAC status is to examine expenditures and concluding that the analysis

requires more comprehensive consideration and weighing of multiple factors).

{9[25} Here, in concluding that the Council was a PAC, the OEC found that the

Council's major or primary purpose was express advocacy. The OEC made this fmding

based on a number of facts, none of which involved how much money was spent or

received. First, the Council's own mission statement stated that its purpose was, in part,

1 Express advocacy includes communications that in express terms advocate the election or defeat of a

clearly identified candidate for office. Buckley at 44; Community Advocate Inc. v. Ohio Elections Comm.,

124 OhioApp.3d 70, (ioth Dist.1997)•

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No. 11AP-1034 11

to support and help elect certain people. Second, the Council's voter guide that it

produced and disseminated, as well as its web site, supported and recommended certain

officials. The Council does not challenge these facts or the OEC's factual finding. Even if

the Council did spend a small amount of money on express advocacy, the OEC could still

have found that its "primary or major purpose" was express advocacy given the other facts

in the record, facts which the Council does not dispute.

11261 The Council also claims that its major or primary purpose is not express

advocacy because Corsi used the Council's website to blog nearly every day for three years

but the OEC could only point to a few isolated examples of express advocacy. Implicit in

this claim is that the other three years of blogging and web posts did not contain express

advocacy. However, the content of those posts were not in the record before the OEC and

are not before this court. While the Council admitted various screen shots from its web

site which included headings of various posts, those screen shots do not include the

content of those posts. We cannot speculate regarding the context of those posts.

C. The PAC Defintion-The Absence of a Monetary Threshold

11271 The Council also contends that the definition of a PAC is against the law

because it applies regardless of the amount of money involved. Specifically, the Council

argues that there must be a monetary threshold of an organization's contributions and/or

expenditures (although the Council does not identify a specific amount) only above which

the PAC definition may apply. We disagree.

{9[28} The Council is correct that some state laws, as well as federal laws, contain

monetary thresholds for PAC status or registration. See, e.g., NOM I (Maine PAC

registration law applies if organization receives or has expenditures over $1,5oo and has

as its major purpose the influencing of an election or ballot question); The Real Truth

AboutAbortion at 555 (federal law defining PAC contains $1,ooo threshold). However,

the absence of a monetary trigger in the PAC definition is not determinative of their

legality. Our research reveals at least two other states, Washington and North Carolina,

that do not include a monetary threshold in their definitions of a PAC. Brumsickle at

997 (affirming state's definition of PAC); North Carolina Right to Life, Inc. v. Leake,

525 F.3d 274, 286 (4th Cir.2oo8) fn. 4 (noting that state legislature had recently

eliminated monetary trigger of definition). In fact, Washington defines a PAC as any

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No. 11AP-1034 12

person "having the expectation of receiving contributions or making expenditures."

Thus, absent any contributions or expenditures, but only based on an expectation of

receiving same, an organization in Washington may be defined as a PAC, provided that

the organization meets the other requirements of the definition.

11291 Ohio has decided to forgo a monetary threshold and simply define a PAC

by its major or primary purpose. In a similar context, when reviewing threshold

amounts above which require disclosure of contributors, the Supreme Court of the

United States concluded that the establishment of such a threshold is best left for the

legislature to decide and will not be rejected unless it is "wholly without rationality."

Buckley at 82-84 (concluding that low threshold amounts of $io or $1oo leading to

record keeping and reporting provisions were "best left in the context of this complex

legislation to congressional discretion" and were not "wholly without rationality."); Cf.

NOM I at 6o-6i (ist Cir.2o11) (affirming $ioo threshold for reporting and

recordkeeping requirements); Family PAC at 811. Applying that reasoning to the

present case, we cannot say that the absence of a monetary trigger for PAC designation

is wholly without rationally in this context.

IV. Conclusion

[1301 For all of these reasons, we reject the Council's constitutional challenges to

Ohio's laws regarding PACs. Accordingly, we overrule the Council's two assignments of

error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BRYANT and TYACK, JJ., concur.

0A005 - D88

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Edmund Corsi, and GeaugaConstitutional Council,

Appellants-Appellants,

V.

Ohio Elections Commission,

Appellee-Appellee.

No.1iAP-io34(C.P.C. No. iiCVF-o6-7794)

(REGULAR CALENDAR)

JUDGMENT ENTRY

For the reasons stated in the decision of this court rendered herein on

October i8, 2012, appellants' two assignments of error are overruled, and it is the

judgment and order of this court that the judgment of the Franklin County Court of

Common Pleas is affirmed. Costs assessed against appellants.

KLATT, BRYANT, P.J., and TYACK, J.

/S/JUDGE

0A005 - D89

Date: 10-30-2012

Case Title: EDMUND CORSI -VS- OHIO ELECTIONS COMMISSION

Case Number: 11 AP001034

Type: JEJ TRIAL COURT JUDGMENT AFFIRMED

So Ordered

r .., f

b/: ^; ( . {. ! ,y\}... ^•^@*. • ^ • Scf .. l t j4fl i! ,' ^,'>• +1'^.\;'

/s/ Judge William A. Klatt

Electronically signed on 2012-Oct-30 page 2 of 2