Case 2:08-cv-00492-GCS-NMK Document 40 Filed 09…

 Case 2:08-cv-00492-GCS-NMK              Document 40        Filed 09/05/2008       Page 1 of 25



                            UNITED STATES DISTRICT COURT
                             SOUTHERN DISTRICT OF OHIO
                                  EASTERN DIVISION

Ohio Right to Life Society, Inc.,

               Plaintiff,

-V-                                                          Case No. 2:08-cv-00492
                                                             JUDGE SMITH
                                                             Magistrate Judge King
Ohio Elections Commission, et al.,

               Defendants.


                                    OPINION AND ORDER

        On May 20, 2008, Plaintiff Ohio Right to Life Society, Inc. ("Plaintiff" or "ORTL")

initiated this case, with a Complaint for a Temporary Restraining Order and Preliminary and

Permanent Injunction (Doc. 2). On June 23, 2008, Plaintiff filed an Amended Motion and

Supporting Memorandum for Preliminary Injunction pursuant to Federal Rule of Civil Procedure

65 against Defendants Ohio Elections Commission ("OEC"), the individual Members of the

OEC ("OEC Members"), and Ohio Secretary of State Jennifer Brunner ("Secretary of State"),

seeking to enjoin Defendants from enforcing certain provisions of Ohio campaign finance law

regarding "electioneering communications" (Doc. 20). On July 18, 2008, Defendants filed a

Response (Doc. 30). On July 28, 2008, Plaintiff filed its Reply (Doc. 39).    Both parties have

agreed that there is no need for an evidentiary hearing. For the following reasons, the Plaintiff's

Motion for a Preliminary Injunction is GRANTED in part and DENIED IN PART.
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                                      I.    BACKGROUND

        Plaintiff ORTL is a non-profit membership Ohio corporation, tax-exempt under Internal

Revenue Code § 501(c)(4). (Compl. ¶ 6). ORTL has been active in Ohio in articulating pro-life

positions, and the mission of ORTL is to advance pro-life positions in Ohio legislation. (Id.).

        Beginning in June 2008 through December 2008, ORTL desires and intends to run ads on

broadcast media relating to Ohio Senate Bill 174, which would generally ban the practice of

human cloning in Ohio. (Id. at ¶¶ 7-8). ORTL indicates that the ads would provide as follows:

        (i)     That Ohio Senate Bill 174 is an important public policy measure that
                should be enacted into law;

        (ii)    That, to date, there has been no significant action on this important
                legislation;

        (iii)   That concerned individuals should call one or more of the following
                Senators, each of whom is a Member of the Senate Judiciary-Civil Justice
                Committee to express their opinions, and request action on this legislation;

        (iv)    That the broadcast commercials would expressly mention one or more of
                the following Ohio Senators to be called by the public:

                Senate President Bill Harris
                Senator David Goodman, Chair
                Senator Kurt Schuring, Vice Chair
                Senator Steve Buehrer
                Senator Keith Faber
                Senator Bill Seitz
                Senator Steve Stivers
                Senator Eric Kearney
                Senator Teresa Fedor; and/or
                Senator Lance T. Mason; and

        (v)     The broadcast ads would contain no reference to the fact one or more of
                these Ohio Senators is a candidate for election at the November 4, 2008
                general election, as "candidate" is defined in O.R.C. § 3501(H).

(Id. at ¶ 9).


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ORTL has hired Wilson Grand Communications to create draft broadcast ads. (Id.).1


   1
    ORTL has provided the Court with two sample scripts created by Wilson Grand
Communications. The first script is designed for radio, is titled "Stop Cloning" and reads as
follows:

       MALE NARRATOR: If you are pro life, help us stop human cloning in Ohio.

       We're Ohio Right to Life and we need your help to pass Senate Bill 174 - the ban
       on human cloning.

       These Senators need to hear from you. (Read one or two names only). Tell them
       you support SB 174.

       Human cloning is immoral. It is unethical.

       Call Senators __________________ and _________________.

       Say you support Senate Bill 174 - the ban on human cloning.

       Paid for by Ohio Right to Life, Mike Gonidakis, Director.

(Compl.¶ 9, Ex. A). The second script is also designed for radio, is titled "Line in the Sand" and
reads as follows:

       WOMAN NARRATOR: If you believe in the Right to Life.

       MAN: If you oppose abortion.

       WOMAN: If you think partial birth abortion is a horrible indefensible procedure.

       MAN: Then help us.

       WOMAN: We are Ohio Right To Life.

       MAN: And we need your help to ban human cloning.

       WOMAN: The Ohio Senate is considering an important bill to ban human
       cloning.

       MAN: Senate Bill 174 will ban maveric scientists from cloning and
       experimenting on human embryos.


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       Plaintiff ORTL believes that its planned speech is in violation of various Ohio election

laws and fears running the ads within 30 days of an election will subject it to extraordinary civil

penalties and criminal prosecution. (Id. at ¶¶ 10-13). In addition, Plaintiff believes its planned

speech would trigger various reporting and disclosure requirements, a regulatory burden which

would "hamper[] its ability to raise money for the proposed ad . . . ." (Id. at 10). Consequently,

Plaintiff ORTL has filed a complaint for a temporary restraining order and preliminary

injunction seeking to enjoin Defendants from enforcing those provisions of Ohio campaign

finance law regarding "electioneering communications" that it contends violate its First

Amendment rights of freedom of speech and association.


       WOMAN: Call state Senators ________ and __________.

       MAN: Embryonic cloning has not produced one single cure.

       WOMAN: But adult stem cells have produced near miraculous cures.

       MAN: It is unethical to create embryos solely for the purpose of research.

       WOMAN: We must draw a moral line in the sand.

       WOMAN: We can not let companies profit by experimenting on human life.

       MAN: Ohio must stop human cloning.

       WOMAN: It is immoral.

       MAN: So call state senators ______________ and ______________ and
       ________________.

       WOMAN: Tell them to pass Senate Bill 174 - the ban on human cloning.

       MAN: Paid for by the Ohio Right to Life Society, Mike Gonidakis, Director.

(Compl.¶ 9, Ex. B).


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The Challenged Provisions

       The provisions of Ohio law challenged by Plaintiff ORTL were part of the campaign

finance reforms enacted in Amended Substitute House Bill Number 1 ("H.B. 1") in December

2004 during a special session of the 125th Ohio General Assembly. H.B. 1 became effective on

March 30, 2005. Specifically, Plaintiff challenges the provisions of O.R.C. § § 3517.01(B)(6)

and 3517.1011, laws regulating "electioneering communication," and O.R.C. § 3517.992, the

penalty sections.

       O.R.C. § 3517.1011(A)(6)(a) defines "electioneering communication" as:

        . . . any broadcast, cable or satellite communication that refers to a clearly
       identified candidate and that is made during either of the following periods of
       time:

       (i)     If the person becomes a candidate before the day of the primary election at
               which candidate will be nominated for election to that office, between the
               date that the person becomes a candidate and the thirtieth day prior to that
               primary election, and between the date of the primary election and the
               thirtieth day prior to the general election at which a candidate will be
               elected to that office;

       (ii)    If the person becomes a candidate after the day of the primary election at
               which candidate was nominated for election to that office, between the
               date of the primary election and the thirtieth day prior to the general
               election at which a candidate will be elected to that office.


       O.R.C. § 3517.1011(H), Ohio's "blackout provision," prohibits the broadcasting of an

electioneering communication during the 30 days preceding a general or primary election that is

funded by contributions from a corporation or labor organization and provides:

        No person shall make, during the thirty days preceding a primary election or
       during the thirty days preceding a general election, any broadcast, cable, or
       satellite communication that refers to a clearly identified candidate using any
       contributions received from a corporation or labor organization.


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       O.R.C. § 3517.01(B)(6) defines "Expenditure," as any spending "for the purpose of

influencing the results of an election . . . ." The provision further provides:

       During the thirty days preceding a primary or general election, any disbursement
       to pay the direct costs of producing or airing a broadcast, cable, or satellite
       communication that refers to a clearly identified candidate shall be considered to
       be made for the purpose of influencing the results of that election and shall be
       reported as an expenditure or as an independent expenditure under section
       3517.10 or 3517.105 of the Revised Code, as applicable, except that the
       information required to be reported regarding contributors for those expenditures
       or independent expenditures shall be the same as the information required to be
       reported under divisions (D)(1) and (2) of section 3517.1011 of the Revised Code.

       Ohio's disclosure provision, O.R.C. § 3517.1011(D)(1)(a)-(f), requires any person who

makes a disbursement in excess of $10,000 during any calendar year for the costs of producing

and airing an "electioneering communication" to file a disclosure statement containing the

following:

       (a)     the full name and address of the person making the disbursement;

       (b)     the principal place of business of the person making the disbursement, if
               not an individual;

       (c)     the amount of each disbursement of more than one dollar during the
               period covered by the statement and the identity of the person to whom the
               disbursement was made;

       (d)     the nominations or elections to which the electioneering communications
               pertain and the names, if known, of the candidates identified or to be
               identified,

       (e)     For each contributor who contributed an aggregate amount of $200 or
               more to the person making the disbursement and whose contributions
               were used for making the disbursement, the following must be disclosed:

               (i)     the full name and address of the contributor, and, if the contributor
                       is a political action committee, the registration number assigned to
                       the political action committee;

               (ii)    if the contributor is an individual, the name of the individual's

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                       current employer, if any, or, if the individual is self-employed, the
                       individual's occupation and the name of the individual's business,
                       if any;

               (iii)   if the contribution is transmitted pursuant to section 3599.031 of
                       the Revised Code from amounts deducted from the wages and
                       salaries of two or more employees that exceed in the aggregate one
                       hundred dollars during the period specified in division (D)(1)(e) or
                       (f) of this section, as applicable, the full name of the employees'
                       employer and the full name of the labor organization of which the
                       employees are members, if any.

O.R.C. § 3517.1011(D)(1)(a)-(f). For purposes of the disclosure requirement, "a person shall be

considered to have made a disbursement if the person has entered into a contract to make the

disbursement." O.R.C. § 3517.1011(B).

                                        II.   DISCUSSION

       Plaintiff ORTL contends that Ohio's blackout provision is vague and overbroad in

violation of Plaintiff's First Amendment rights of free speech and free association. (Pl.'s Am.

Mot. for Prelim. Inj. at 5-11; Reply at 3; Compl. ¶¶ 22-23, 33, 35-36, 38, 41-42, 44-45, 53).

Consequently, Plaintiff seeks declaratory relief and an order enjoining Defendants from

enforcing the blackout provision because that provision is facially unconstitutional. (Compl. at

Prayer for Relief, ¶¶ 1, 6). Alternatively, Plaintiff seeks an order enjoining the enforcement of

the blackout provision from being applicable to the proposed ORTL broadcast ads, or any

similar ads, through adopting a narrowing construction of O.R.C. § 3517.1011(H) that limits the

statute's application to express advocacy or its functional equivalent. (See Id. at ¶ 2).

Defendants admit that the Supreme Court's ruling in Federal Election Comm'n v. Wisconsin

Right to Life, Inc. (WRTL), 127 S.Ct. 2652 (2007) precludes enforcement of Ohio's blackout

provision with regard to the two sample ads attached to Plaintiff's Complaint during the 30-day


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period preceding the November 4, 2008 election. (Defs.' Memo. in Opp. at 9; OEC and OEC

Members' Answer ¶ 38; Secretary of State's Answer ¶¶ 39-40). Defendants assert, however,

that Plaintiff's motion should be denied at the outset because Plaintiff lacks Article III standing.

(Defs.' Memo. in Opp. at 1, 5-8). Alternatively, Defendants argue that Plaintiff cannot succeed

on a facial challenge to Ohio's blackout provision. (Id. at 8-12).

       In addition, Plaintiff ORTL challenges Ohio's disclosure scheme, arguing that the

disclosure requirements are vague and overbroad in violation of Plaintiff's First Amendment

rights of free speech and free association. (Pl.'s Am. Mot. for Prelim. Inj. at 6, 11-17; Reply at 3-

5; Compl. ¶¶ 24-25, 33, 35-36, 38, 49, 53). Consequently, Plaintiff seeks declaratory relief and

an order enjoining Defendants from enforcing Ohio's disclosure provisions because those

provisions are facially unconstitutional. (Compl. at Prayer for Relief, ¶¶ 3, 6). Alternatively,

Plaintiff seeks an order enjoining the enforcement of Ohio's disclosure provisions from being

applied to ORTL, its members and the proposed broadcast ads, or any similar ads, through

adopting a narrowing construction of O.R.C. § 3517.1011 that (1) survives strict scrutiny; (2)

limits the applicability of the statute "to no more than 60 days prior to the election"; (3) limits

the applicability of the statute to electioneering ads that are the "functional equivalent of express

advocacy"; and (4) "limits the onerous regulatory burden of disclosure of contributions and

expenditure to a reasonable level." (Id. at ¶ 4). Defendants contend that ORTL is unlikely to

prevail on the merits of its claims regarding Ohio's disclosure requirements, and therefore argue

that the Court should deny ORTL's motion. (Defs.' Memo. in Opp. at 12-22).

       For the following reasons, the Court finds Defendants' standing arguments unpersuasive,

but agrees that Ohio's blackout provision survives Plaintiff's facial challenge. The Court


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concludes, however, that an injunction is warranted with regard to Ohio's blackout provisions as

applied to Plaintiff's two proposed broadcast ads. With respect to Plaintiff's challenge of Ohio's

disclosure provisions, the Court finds that a preliminary injunction is not warranted. The Court

addresses Plaintiff's challenges to Ohio's blackout provision and disclosure requirements in turn.

A.     30-Day Blackout Provisions (O.R.C. § § 3517.01(B)(6) and 3517.1011(H))

       The Court first addresses Defendants' arguments with respect to standing and then turns

to the merits of Plaintiff's facial and as-applied challenges to Ohio's blackout provision.

       1.      Standing

       Defendants argue that Plaintiff lacks standing because there is no recognizable

controversy or injury. (Defs.' Memo. in Opp. at 5). More specifically, Defendants assert that

"Plaintiff has failed to provide any indication of a specific objective chilling effect establishing

the type of injury needed for Article III standing" and that the "injury alleged is far too illusory

and conjectural to establish standing." (Id. at 7). To support this assertion, Defendants maintain

that Plaintiff has not taken enough steps towards producing the ads, specifically noting that

Plaintiff has not secured air time, identified a target market, established a budget, or filed with

the Secretary of State indicating an intention to broadcast these advertisements. (Id. at 7-8).

Defendants conclude that Plaintiff's failure to take these steps means that "there is no way of

knowing that this is anything but a speculative lawsuit," and that "Plaintiff's subjective

perception that it would have been disciplined for broadcasting its advertisements" does "not

constitute an adequate or specific objective harm" sufficient to establish Article III standing. (Id.

at 8). The Court finds Defendants' arguments unpersuasive.

       "[J]urisdiction is tested by the facts as they existed when the action [was] brought," and


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"after vesting, it cannot be ousted by subsequent events." Smith v. Sperling, 354 U.S. 91, 93 n. 1

(1957) (citation omitted). Therefore, standing "is to be determined as of the time the complaint

is filed." Cleveland Branch, N.A.A.C.P. v. City of Parma, OH, 263 F.3d 513, 524 -525 (6th Cir.

2001). The U.S. Supreme Court recently discussed the requirements for establishing Article III

standing:

       To qualify for standing, a claimant must present an injury that is concrete,
       particularized, and actual or imminent; fairly traceable to the defendant's
       challenged behavior; and likely to be redressed by a favorable ruling. . . . [T]he
       standing inquiry remains focused on whether the party invoking jurisdiction had
       the requisite stake in the outcome when the suit was filed. . . . [T]he injury
       required for standing need not be actualized. A party facing prospective injury
       has standing to sue where the threatened injury is real, immediate, and direct.

Davis v. Federal Election Commission, 128 S.Ct. 2759, 2768-69 (2008) (citations omitted). In

the context of a First Amendment challenge, the Supreme Court has found that "constitutional

violations may arise from the deterrent, or `chilling,' effect of governmental regulations that fall

short of a direct prohibition against the exercise of First Amendment rights." Laird v. Tatum, 408

U.S. 1, 11 (1972) (citations omitted).

       Plaintiff had faced such a prospective injury when it filed suit. The Court finds, and

Defendants have implicitly admitted (See Defs.' Memo. in Opp. at 9), that Ohio's blackout

provision would operate to ban the two draft broadcast ads that Plaintiff attached to their

Complaint. If Plaintiff ran the ads within 30 days of an election, it could be subjected to civil

penalties and even criminal prosecution. Under these circumstances, the Court concludes that

Plaintiff faced the requisite injury when it filed suit and has standing to challenge Ohio's

blackout provision.

       In so finding, the Court rejects Defendants' arguments that the injury alleged is "too


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illusory or conjectural" because Plaintiff has not taken enough steps towards producing the ads.

Plaintiff has undisputedly entered into contracts and committed resources to have these broadcast

ads developed. The ads were developed and submitted as exhibits to Plaintiff's Complaint.

Defendants have not cited to any bright-line test and have not provided the Court with any

authority that stands for the proposition that a plaintiff needs to take a certain amount of steps

before the injury becomes objective rather than subjective.

       Defendants also argue that "Plaintiff cannot demonstrate the need for injunctive relief

regarding [the blackout] provision" because "[a]ll the Defendants have conceded that the U.S.

Supreme Court's ruling in WRTL precludes enforcement of R.C. 3517.1011(H) and R.C.

3517.01(B)(6) with regard to the two ads attached to Plaintiff's Complaint during the thirty-day

period preceding the November 4, 2008 general election." (Id. at 9 citing OEC and OEC

Members' Answer ¶ 38; Secretary of State's Answer ¶¶ 39-40). Defendants' admission, which

was made in their Answers, however, is irrelevant and does not alter this Court's conclusion with

respect to standing. As set forth above, standing is determined at the time the Complaint is filed,

and Defendants' admission came after the Complaint. Regardless, Defendants' admission does

not amount to an agreement not to enforce Ohio's blackout provisions against Plaintiff's

proposed ads, and Defendants have produced no evidence of such an agreement to this Court.

       Having concluded that Plaintiff has standing to assert its challenges to Ohio's blackout

provision, the Court now turns to the merits of Plaintiff's claims.



       2.      Facial Challenge

       Plaintiff argues that Ohio's blackout provision is facially unconstitutional under the


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standards established in WRTL. (Pl.'s Am. Mot. for Prelim. Inj. at 5). Defendants counter, and

this Court agrees, that Plaintiff's facial challenge fails because WRTL expressly did not alter

McConnell v. Federal Election Commission, 540 U.S. 93 (2003), which held that the blackout

provision in Section 2032 of the Bipartisan Campaign Reform Act of 2002 ("BCRA") is facially

valid. (See Defs.' Memo. in Opp. at 9-10).

       As a preliminary matter, Plaintiff is correct in concluding that Ohio's blackout provision,

because it burdens political speech, is subject to strict scrutiny. See, e.g., WRTL, 127 S.Ct. at

2554; McConnell, 540 U.S. at 205.

       In McConnell, the Supreme Court, applying strict scrutiny, upheld the BCRA's blackout

provision against a First Amendment facial challenge, acknowledging that the provision covered

not only "express advocacy," but also "issue advocacy." 540 U.S. at 204-207. The Court

concluded that the provision was not overbroad to the extent it regulated express advocacy or the

"functional equivalent" of express advocacy. Id. at 206. The Court did note, however, that "the

interests that justify the regulation of campaign speech might not apply to the regulation of

genuine issue ads." Id. at 206, n. 88. Nevertheless, the Court found that the provision was not

facially overbroad, stating: "[e]ven if we assumed that the BCRA will inhibit some

constitutionally protected corporate and union speech, that assumption would not `justify

prohibiting all enforcement' of the law" where it had not been established that the provision's

"application to pure issue ads is substantial." Id. at 207 (quoting Virginia v. Hicks, 539 U.S. 113,



   2
    BCRA § 203 prohibits a corporation from using funds to pay for any "electioneering
communication," which the BCRA defines as any broadcast that refers to a candidate for federal
office and is aired within 30 days of a federal primary election or 60 days of a federal general
election in the jurisdiction where that candidate is running.

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120 (2003).

       In WRTL, the Supreme Court limited its examination of the BCRA's blackout provision

to an "as-applied" challenge, precluding any facial challenge, on the basis of the Court's ruling

in McConnell. 127 S.Ct. at 2659. In deciding the as-applied challenge, the WRTL Court stated

"[w]e have no occasion to revisit McConnell's conclusion that the statute is not facially

overbroad." Id. at 2670, n.8. Indeed, even Plaintiff has admitted that WRTL extended no further

than an as-applied challenge. (Pl.'s Am. Mot. for Prelim. Inj. at 8-9).

       Plaintiff seeks to distinguish McConnell from the instant case by arguing that the

McConnell decision relied on an extensive factual record to establish a compelling state interest

and least restrictive alternative. (See Pl.'s Am. Mot. for Prelim. Inj. at 9). Specifically, Plaintiff

argues that "there is no factual record in support of the provisions of Ohio H.B. 1 that became

O.R.C. § 3517.01(B)(6) & O.R.C. § 3517.1011." (Id.). Defendants point out that the lack of

legislative history is "chiefly due to the fact that Ohio does not retain records of legislative

history." (Defs.' Memo. in Opp. at 10). Defendants maintain that the same concerns of

corruption and appearance of impropriety articulated in McConnell apply to Ohio elections,

noting that "Ohio spent four years defending its own attempts to regulate television

advertisements masquerading as `issue ads' although they advocated the defeat of a judicial

candidate for the Ohio Supreme Court (Id. (citing Citizens for a Strong Ohio v. Marsh, 123 Fed.

Appx. 630, 2005 U.S. App. LEXIS 67 (6th Cir. 2005); U.S. Chamber of Commerce v. Ohio

Elections Comm'n., 123 F. Supp. 2d 857 (S.D. Ohio 2001); Ohio Elections Comm'n. v. Ohio

Chamber of Commerce, 158 Ohio App. 3d 557 (10th Dist. 2004)). The Court agrees with

Defendants that the same compelling interests leading the McConnell Court to uphold BCRA §


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203 apply equally to Ohio's disclosure provisions.

        To the extent Ohio's blackout provision regulates express advocacy or its functional

equivalent, this Court, like the McConnell and WRTL Courts, concludes that the provision

survives strict scrutiny. The Court now turns to Plaintiff's as-applied challenge to Ohio's

blackout provisions.

                                3.    As-Applied Challenge

        As set forth above, with respect to Plaintiff's as-applied challenge to Ohio's blackout

provision, Defendants expressly "have conceded that the U.S. Supreme Court's ruling in WRTL

precludes enforcement of R.C. 3517.1011(H) and R.C. 3517.01(B)(6) with regard to the two ads

attached to Plaintiff's Complaint during the thirty-day period preceding the November 4, 2008

general election." (Defs.' Memo. in Opp. at 9 citing OEC and OEC Members' Answer ¶ 38;

Secretary of State's Answer ¶¶ 39-40). The Court agrees that WRTL operates to preclude

enforcement of Ohio's blackout provision with respect to the two proposed ads.

        In WRTL, the Court articulated the proper standard for an as-applied challenge to the

BCRA's blackout provision: "[A] Court should find that an ad is the functional equivalent of

express advocacy only if the ad is susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate." 127 S.Ct. at 2667. Applying this standard, the

Court found that the plaintiff's proposed ads were not the functional equivalent of express

advocacy, and therefore concluded that the ads fell outside the scope of McConnell's holding.

Id. at 2670. Applying strict scrutiny, the Court concluded that because the proposed speech was

not express advocacy or its functional equivalent, there was no interest sufficiently compelling to

justify burdening it. Id. at 2673.


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       In the instant case, Plaintiff's two proposed ads are nearly identical to the ads at issue in

WRTL. Like the WRTL proposed ads, Plaintiff's proposed ads do not consist of express

advocacy or the functional equivalent of express advocacy. And, like the WRTL Court, the Court

finds that Defendants have not identified an interest sufficiently compelling to justify burdening

Plaintiff's speech. Consequently, the Court finds that Ohio's disclosure provision is

unconstitutional as applied to Plaintiff's two proposed ads.

B.     Disclosure Provisions (O.R.C. § 3517.1011)

       Plaintiff ORTL contends that the disclosure requirements of O.R.C. § § 3517.1011 and

3517.01(B)(6), both on their face and as applied to Plaintiff's proposed ads, violate ORTL's First

Amendment rights. (Pl.'s Am. Mot. for Prelim. Inj. at 11). Plaintiff bases its challenge on its

interpretation of WRTL, several "anonymous speech" cases, and its interpretation of the Supreme

Court's recent decision in Davis v. Federal Elections Commission, 128 S.Ct. 2759 (2008). (Id. ;

Reply at 3-6). Plaintiff maintains that the Court should apply strict scrutiny in analyzing Ohio's

disclosure provisions because the provisions place restrictions on core political speech. (Reply at

1-2). Defendants argue, and this Court agrees, that the appropriate standard of review regarding

campaign finance disclosure laws is intermediate, not strict scrutiny. (See Defs.' Memo. in Opp.

at 12-13). Defendant further argues that McConnell is determinative of Plaintiff's constitutional

challenge. (Id. at 14-15). Again, the Court agrees.

       With respect to campaign finance disclosure provisions, the Supreme Court has

consistently applied an intermediate level of scrutiny. See e.g., Buckley v. Valeo, 424 U.S. 1, 64-

66 (1976); McConnell, 540 U.S. at 196. In Buckley, the Supreme Court reviewed comprehensive

federal reporting and record-keeping requirements for political committees as well as more


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limited reporting requirements for independent expenditures. See Buckley, 424 U.S. at 60-82.

The standard of review established by the Court was whether there was a "`relevant correlation'

or `substantial relation' between the governmental interest and the information required to be

disclosed." Id. at 64. The Court indicated that this level of review was appropriate because

disclosure requirements "appear to be the least restrictive means of curbing the evils of campaign

ignorance and corruption that Congress found to exist." Id. at 68 (footnotes omitted). The Court

explained that disclosure requirements are described as the "least restrictive" because they

"impose a ceiling on campaign-related activities." Id. at 68. In McConnell, the Court did not

explicitly state the standard of review with respect to disclosure requirements. The Court's

opinion made clear, however, that the Court was adopting Buckley's standard of review,

upholding the BCRA's disclosure requirements as supported by "important state interests." 540

U.S. at 196.

       Applying intermediate scrutiny, the McConnell Court upheld BCRA § 201,3 a disclosure

provision, against a First Amendment challenge. Id. In reaching this holding, the Court relied

on the analysis in Buckley, in which the Court identified "important state interests" that

supported Federal Election Campaign Act ("FECA") disclosure provisions: "the important state

interests that prompted the Buckley Court to uphold FECA's disclosure requirements--providing

the electorate with information, deterring actual corruption and avoiding any appearance thereof,

and gathering the data necessary to enforce more substantive electioneering restrictions--apply



   3
    BCRA § 201 requires any corporation spending more than $10,000 in a calendar year to
produce or air electioneering communications to file a report with the FEC that includes the
names and addresses of anyone who contributed $1,000 or more in aggregate to the corporation
for the purpose of furthering electioneering communications.

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in full to BCRA." Id. The Court then indicated that these "important interests" supported

disclosure of "the entire range of `electioneering communications.'" Id. at 196-97.

       Plaintiff ORTL argues that WRTL provides a basis for overturning the 8-1 decision of the

McConnell Court upholding electioneering communication disclosure requirements. Plaintiff

contends that WRTL decision establishes that:

       [T]here are only two types of political communications that can be regulated
       without violating the First Amendment guarantee of freedom of speech: (i) a
       political communication that contains words that expressly advocate the election
       or defeat of a candidate; and (ii) a narrowly defined category of communications
       that are the functional equivalent of express advocacy, insofar as the expression is
       susceptible of " ... no reasonable interpretation other than as an appeal to vote for
       or against a specified candidate."

(Pl.'s Am. Mot. for Prelim. Inj. at 3 (citing WRTL, 127 S. Ct. at 2667 and McConnell, 540 U.S.

93)). The Court disagrees. The WRTL Court made clear that the Court was only considering the

constitutionality of the BCRA's federal electioneering funding prohibition as applied to the

plaintiff's specific ads. The WRTL Court did not even mention disclosure requirements, much

less consider their constitutionality. And, though the McConnell Court left open the possibility

of as-applied challenges to the BCRA's blackout provision (the issue presented in WRTL), the

Court sustained the BCRA's disclosure provision for the "entire range of `electioneering

communications.'"

       The U.S. District Court for the District Court of Columbia recently considered and

rejected the same arguments that Plaintiff ORTL makes in the instant case. See Citizens United v.

FEC, 530 F.Supp.2d 274 (D.D.C. 2008). The Citizens United plaintiff, like Plaintiff ORTL,

sought an injunction of electioneering communication disclosure provisions, arguing that

WRTL permits application of disclosure requirements only as to ads that contain express


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advocacy or its functional equivalent. See id. at 280. The Citizens United court denied the

injunction, concluding as this Court does that WRTL did not alter McConnell's holding with

respect to disclosure requirements. Id. at 281. The court explained:

       We know that the Supreme Court has not adopted that line as a ground for
       holding the disclosure and disclaimer provisions unconstitutional, and it is not for
       us to do so today. And we know as well that in the past the Supreme Court has
       written approvingly of disclosure provisions triggered by political speech even
       though the speech itself was constitutionally protected under the First
       Amendment.

Id. (footnote omitted) (citations omitted).

       Plaintiff ORTL next seeks to rely on several decisions it claims establish that "the issue

advocate may always wear the cloak of anonymity." (Pl.'s Am. Mot. for Prelim. Inj. at 12-13).

Again, Plaintiff's reliance is misplaced.

       Plaintiff quotes NAACP v. Alabama, 357 U.S. 449 (1958) for the proposition that "it is

hardly a novel perception that compelled disclosure of affiliation with groups engaged in

advocacy may constitute . . . a restraint on freedom of association." (Pl.'s Am. Mot. for Prelim.

Inj. at 13 (citing NAACP, 357 U.S. at 462) (emphasis added)). Plaintiff, however, omits that the

NAACP Court found that the NAACP had "made an uncontroverted showing that on past

occasions revelation of the identity of its rank-and-file members has exposed these members to

economic reprisal, loss of employment, threat of physical coercion, and other manifestations of

public hostility." NAACP, 357 U.S. at 462. Based upon this factual showing, the Court

concluded: "[u]nder these circumstances, we think it apparent that compelled disclosure of

petitioner's Alabama membership is likely to affect adversely the ability of petitioners and its

members" to freely associate. Id. at 462-63. Relying on NAACP, the Supreme Court in Buckley

rejected a claim that campaign finance disclosure requirements violate the First Amendment

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rights of minor parties and independent candidates and articulated a rigorous test for exemption

from a disclosure statute, namely that the regulated party had to demonstrate a "reasonable

probability" that the disclosure would subject the regulated parties to "threats, harassment, or

reprisals from either Government officials or private parties." Buckley, 424 U.S. at 74. See also

McConnell, 540 U.S. at 198, 199 (reiterating Buckley's standard for as-applied challenges).

Thus, although these cases do suggest circumstances in which the at-issue disclosure

requirements might be unconstitutional as applied, in the instant case, Plaintiff ORTL has not

even attempted to establish a record that would permit this Court to conclude that its contributors

face a real threat of retaliation if their names were disclosed. See also Citizen United, 530

F.Supp.2d at 281 (noting that plaintiff "states that there may be reprisals, but it has presented no

evidence to back up this bald assertion").

       Plaintiff ORTL's reliance on McIntyre v. Ohio Elections Commission, 514 U.S. 334

(1995), is also misplaced. (See Pl.'s Am. Mot. for Prelim. Inj. at 15-16). Like NAACP, McIntyre

did not involve candidate elections and the important state interests present in the candidate

election context. Instead, the disclosure statute struck down in McIntyre had required the ballot

initiative handbill at issue in the case to identify the author of the literature. The Supreme Court

noted that no anti-corruption interest was implicated by ballot initiative activity, in contrast to

lobbying, because the former has no nexus to candidates, political parties or officeholders.

McIntyre, 514 U.S. at 356, n.20. Further, the Supreme Court noted the limited utility of

information required by the statute in McIntyre--i.e., the identification of private individuals

who may make at most minimal expenditures for a ballot initiative handbill. Id. at 348-49.

Whereas the ads in the instant case relate to candidates for office and trigger disclosure


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requirements only when their value exceeds $10,000, in McIntyre the handbill made no mention

of candidates and had been produced at insubstantial cost. The McIntyre decision therefore does

not bear upon this Court's analysis of the constitutionality of O.R.C. § 3517.1011.

       The Supreme Court's decision in Watchtower Bible and Tract Society of New York, Inc.

v. Village of Stratton, 536 U.S. 150 (2002), likewise has no bearing on this case because

Watchtower involved neither candidate election related disclosure, nor lobbying disclosure. The

Watchtower Court struck down a municipal license requirement for door-to-door canvassing, but

gave no consideration whatsoever to the unique government interests at stake in the context of

candidate election advertising and lobbying.

       Finally, Plaintiff contends that the Supreme Court's recent holding in Davis v. Federal

Election Commission provides a basis for overturning McConnell. (See Reply at 3-6). Plaintiff

maintains that the Davis Court applied strict scrutiny and that the Court's holding that BCRA §

319 is unconstitutional "is extremely important to the issues presented in this case." (Id.). The

Court disagrees.

       In Davis, a self-financed candidate for a seat in the United State House of

Representatives brought a facial challenge to BCRA § 319, the so-called "Millionaire's

Amendment" of the BCRA. 128 S.Ct. at 2766-67. The Davis Court explained that federal law

places limits on the amount of money a candidate may receive from an individual or from the

candidate's party and that these limits apply to all competitors for a seat, but how the challenged

provision, BCRA § 319(a), alters this scheme when a candidate's expenditure of personal funds

exceeds $350,000. Id. at 2765-66. Once a candidate's expenditure of personal funds exceeds this

mark, an asymmetrical regulatory scheme comes into play, which allows the candidate's


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opponent to receive individual contributions at treble the normal limit. Id. at 2766. To enforce

BCRA § 319(a), § 319(b) requires candidates to disclose: (1) their intent, if any, to cross the

threshold amount of personal expenditure; (2) a notice within 24 hours of when they cross the

threshold; and (3) each additional expenditure of $10,000 or more using personal funds within

24 hours of such an expenditure. The Court determined that BCRA § § 319(a) and (b) violated

the First Amendment. Id. at 2775. In reaching this conclusion, the Court explained that § 319(a)

does not simply raise contribution limits for all candidates, but instead raises the limits only for

the non-self-financing and does so only after the self-financing candidate spends more than

$350,000 of personal funds. Id. at 2771. The Court stated "[w]e have never upheld the

constitutionality of a law that imposes different contribution limits for candidates who are

competing against each other." Id. The Court found that the burden imposed by § 319(a) was not

justified by any governmental interest in eliminating corruption or the perception of corruption,

and agreed with the Buckley Court that "reliance on personal funds reduces the threat of

corruption, and therefore § 319(a), by discouraging use of personal funds, disserves the

anticorruption interest." Id. at 2773. The Davis Court then considered the constitutionality of

BCRA § 319(b)'s disclosure requirements. Id. at 2774. Contrary to Plaintiff ORTL's assertion,

the Davis Court did not apply strict scrutiny, but instead utilized the same standard of review

established by the Buckley Court, stating "there must be a `relevant correlation' or `substantial

relation' between the governmental interest and the information required to be disclosed . . . .

That is, the strength of the governmental interest must reflect the seriousness of the actual burden

on First Amendment rights." Id. at 2775 (quoting Buckley, 424 U.S. at 64). The Davis Court

concluded that § 319(b)'s disclosure requirements could not be justified because they were


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designed to implement the asymmetrical contribution limits provided for in § 319(a), which the

Court had found to be unconstitutional. In the instant case, the at-issue disclosure requirements

are not designed to implement another provision that has been found to be unconstitutional.

Instead, the Court finds that Ohio's disclosure requirements are supported by the same important

state interests identified by the Buckley and McConnell Courts as supportive of the FECA and

BCRA disclosure provisions. Therefore, the Court does not find Davis instructive in the Court's

analysis of the constitutionality of O.R.C. § 3517.1011.

C.     Application of the Preliminary Injunction Standard

       The Court must consider four factors in determining whether to issue a preliminary

injunction:

       (1) whether the movant has a strong or substantial likelihood of success on the
       merits; (2) whether the movant would suffer irreparable injury without the relief
       requested; (3) whether issuance of the injunction will cause substantial harm to
       others; and (4) whether the public interest will be served by issuance of the
       injunction.

Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.

2004). These four factors are "to be balanced, not prerequisites that must be met." Hamad v.

Woodcrest Condominium Assoc., 328 F.3d 224, 230 (6th Cir. 2003); see also Capobianco, D.C.

v. Summers, 377 F.3d 559, 561 (6th Cir. 2004). Notwithstanding this balancing approach, the

likelihood of success and irreparable harm factors predominate the preliminary injunction

inquiry. The Sixth Circuit has noted, however, that "[i]n First Amendment cases, the first factor

will often be determinative." Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville

and Davidson County, Tennessee, 274 F.3d 377, 400 (6th Cir. 2001) (citing Connection Distrib.

Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).


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       As set forth in detail above, Plaintiff has demonstrated a likelihood of success on the

merits with respect to its as-applied challenge to Ohio's blackout provision. Consequently, the

Court finds that if Defendants were not enjoined from enforcing Ohio's blackout provision with

regard to the two ads attached to Plaintiff's Complaint, Plaintiff would suffer irreparable injury.

See Deja Vu of Nashville, 274 F.3d at 400 ("[T]he Supreme Court has recognized that even

minimal infringement upon First Amendment values constitutes irreparable injury." (citation

omitted)). Moreover, no substantial harm is inflicted on others merely by protecting Plaintiff's

First Amendment rights. See Deja Vu of Nashville, 274 F.3d at 400 ("[I]f the plaintiff shows a

substantial likelihood that the challenged law is unconstitutional, no substantial harm to others

can be said to inhere in its enjoinment." (citation omitted)). Indeed, Defendants have conceded

that WRTL precludes enforcement of the blackout provision with respect to the two proposed

ads. (Defs.' Memo. in Opp. at 9 citing OEC and OEC Members' Answer ¶ 38; Secretary of

State's Answer ¶¶ 39-40). Thus, the Court concludes that the threatened injury outweighs any

damage that the injunction may cause to others. Finally, issuance of a preliminary injunction

will serve the public interest because "it is always in the public interest to prevent violation of a

party's constitutional rights." Deja Vu of Nashville, 274 F.3d at 400 (citation omitted).

       With respect to Plaintiff's facial challenge to the blackout provision and its challenges to

Ohio's disclosure provisions, as set forth above, Plaintiff has failed to demonstrate a likelihood

of success on the merits. As to the remaining factors governing preliminary relief, the Court

finds that any injury to Plaintiff's First Amendment interests is outweighed by the state interests

at issue. Finally, the Court finds that enjoining the at-issue provisions would not serve the public

interest in view of the Supreme Court's determination that such provisions serve the public by


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providing the electorate with information to assist the public in making informed decisions,

deterring actual and perceived corruption, limiting the coercive effect of corporate speech and

gathering data necessary to enforce more substantive electioneering restrictions. See McConnell,

540 U.S. at 196, 205, 231. Accordingly, the Court denies Plaintiff's Motion for a Preliminary

Injunction with respect to these claims.

          In summary, the Court finds that Plaintiff has demonstrated a likelihood of success on the

merits with respect to its as-applied challenge to Ohio's blackout provision and that issuance of a

preliminary injunction to enjoin Defendants from enforcing Ohio's blackout provision with

regard to the two proposed ads would prevent irreparable injury to Plaintiff, not unduly damage

Defendants and is in the best interest of the public. With respect to Plaintiff's other claims,

however, Plaintiff has failed to demonstrate a likelihood of success on the merits, any injury to

Plaintiff is outweighed by state interests, and an injunction is not in the best interest of the

public.



                                       III.   CONCLUSION

          For the foregoing reasons, Plaintiff ORTL's Motion for a Preliminary Injunction is

GRANTED IN PART and DENIED IN PART. Plaintiff's Motion for a Preliminary

Injunction with respect to Ohio's blackout provisions as applied to the two proposed broadcast

ads is GRANTED. Plaintiff may therefore run the two ads attached to its Complaint during the

thirty-day period preceding the November 4, 2008 general election, and Defendants are enjoined

from enforcing Ohio's blackout provision with regard to the two proposed ads. Plaintiff's

Motion for a Preliminary Injunction is DENIED with respect to all other claims.


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Case 2:08-cv-00492-GCS-NMK        Document 40       Filed 09/05/2008     Page 25 of 25




    The Clerk shall remove Documents 19 and 20 from the Court's pending motions list.

           IT IS SO ORDERED.


                                       /s/ George C. Smith
                                       GEORGE C. SMITH, JUDGE
                                       UNITED STATES DISTRICT COURT




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