The Center for Competitive Politics (CCP) petitioned the US Supreme Court for a writ of certiorari late Tuesday in Corsi v. Ohio Elections Commission. The petition challenges a recent decision by the Ohio Court of Appeals that upheld the Ohio Elections Commission’s (OEC) interpretation of the major purpose requirement in determining whether or not a group must register as a political action committee (PAC).
Supreme Court rulings over the past four decades have limited the scope of federal committee status to groups that are “under the control of a candidate or the major purpose of which is the nomination or election of a candidate.” Ohio purports to incorporate the major purpose test required by the 1976 Buckley v. Valeo ruling. But the OEC’s interpretation, upheld by the state courts, interpreted the statute to require an organization to register as a PAC even where political advocacy does not comprise a majority—or even a substantial portion—of its activity or expenditures.
In April 2011, the OEC ruled that the Geauga Constitutional Council (GCC), a small, unincorporated entity, was a PAC under Ohio law. Although the commission ruled that the organization’s primary purpose was not to engage in political activity, engaging in politics was one of the organization’s major purposes based on the organization’s mission statement, excerpts from its website, and a single voter guide. Yet, as noted in the petition, “no finding was ever made that these statements and publications comprised a majority, plurality, or even a substantial portion of the Council’s activity or expenditures.”
“OEC did not conduct a thorough investigation before ruling that GCC must register with the government,” said CCP Legal Director Allen Dickerson. “It appears that the OEC can pick what information to examine, and then subject organizations to registration and reporting requirements based solely on some evidence of some political activity. That is not and should not be the law.”
“The Ohio Court of Appeals applied the First Amendment in a manner inconsistent with the major purpose test required by Buckley and Massachusetts Citizens for Life v. FEC,” said CCP Chairman Bradley A. Smith. “Inconsistency in determining which organizations are PACs leaves issue advocacy groups vulnerable to unconstitutional governmental oversight. Ohio’s statute and its enforcement by the OEC are inconsistent with Supreme Court precedents and the First Amendment.”
“Corsi v. OEC provides an opportunity for the Court to declare the major purpose test mandatory, and to require the states to undergo analysis already required at the federal level,” added Dickerson.
The petition warns that “Unless this Court weighs in, the major purpose requirement is poised to become a dead letter in the states. . . . Many states, including Ohio, have adopted systems whose vague and overbroad triggers ‘offer no security for free discussion’ — the very harm Buckley sought to avoid.”
The questions presented by the petition are:
- May the major purpose test for political committee status, established by this Court in Buckley v. Valeo and FEC v. Mass. Citizens for Life, be satisfied without finding that regulated activity comprises the majority of an organization’s activity or expenditures?
- May a state meet its burden of demonstrating an organization’s major purpose without determining the portion of its expenditures directed toward political communications?