Proposed Amendment Will Strengthen Ohio’s Term Limits on Legislators

termlimitColumbus, OH – Today, the 1851 Center for Constitutional Law secured the approval necessary for a coalition of good government advocates to begin the circulation of a proposed constitutional amendment that would limit state legislators to no more than eight years in each House and twelve total years at the Statehouse.

The proposal “To Strengthen Ohio Term Limits” today cleared the Ohio Ballot Board, after obtaining Attorney General certification ten days earlier. Petitions will now be circulated by a coalition of Ohioans backed by U.S. Term Limits, the organization responsible for first introducing term limits to Ohio through a 1992 constitutional amendment.

The proposed amendment will likely appear on the November 2016 ballot, so long as 304,000 valid signatures are submitted by early July of 2016.

The Amendment would provide that, in Ohio:

  • No person shall hold any combination of elected legislative offices for greater than twelve years, total.
  • No person shall hold the same elected legislative office for greater than eight years, total.
  • No person shall hold an elected legislative office if the term limits in this Amendment would forbid that person from completing the full term for that office.

The Amendment would not count years in office accrued prior to its passage.

This effort comes in response to legislators’ creation of a commission – – “The Constitutional Modernization Commission” – – to attempt to increase their own terms of office by rolling back or eliminating Ohio’s current term limits. Several legislators have indicated this to be the overwhelming purpose behind the Commission, which consists solely of legislators, former politicians, lobbyists, and political donors.

“Ohioans should be disturbed to learn that state legislators appear poised to attempt to shred the very term limits Ohioans overwhelmingly voted to place upon them,” said Maurice Thompson, Executive Director of the 1851 Center. “This Amendment will end the abusive ‘musical chairs’ practice whereby some legislators remain in power for decades, losing touch with their communities and constituents and making better connections with politically-connected interests in Columbus.”

“The longer a public official holds office, the more likely he or she is to see government as the solution to every problem, and the less likely he or she is to reform serious problems created by government. The United State Congress perfectly illustrates this.”

Members of the coalition include those responsible for passing Ohio’s original term limits on legislators in 1992, eliminating Ohio’s estate tax in 2011, and passing the Health Care Freedom Amendment in 2011.

Read the Full Text of the Amendment HERE

Read 1851 Center Op-Ed on Improving Ohio Term Limits HERE

Read further media reports on this term limits effort HERE

Legal Center to High Court: Cleveland-Area Stormwater Tax Unconstitutional

Northeast Ohio Sewer District tax on “impervious surfaces” is without legislative authorization, and is a property tax without the required voter approval

stormwaterColumbus, OH – The 1851 Center for Constitutional Law late yesterday submitted to the Ohio Supreme Court its Merit Brief asserting that the Northeast Ohio Regional Sewer District, a Cleveland-Akron area administrative agency, lacks authority to regulate property in response to rainwater, which is not sewage, and even if it has such authority, may not impose a stormwater-related tax without a vote.

The Sewer District seeks to levy a tax on “impervious surfaces” on hundreds of thousands of Northeast Ohio residential and business property owners. These surfaces include roofs, patios, driveways, and parking lots, and are taxes levied based upon the square footage of each. The District maintains that this is a means of addressing rain-related erosion, run-off, and flooding.

Although such districts’ authorities often claim that settlement agreements with the federal EPA mandate such programs, such settlements mandate no particular course of action and do not permit agencies to transgress the Ohio Constitution.

Joining the 1851 Center on the Brief is the Ohio Real Estate Investors Association. Objecting to the taxes and regulations are several Cleveland-area municipalities, as well as numerous property-owner and business organizations, including the Ohio Council of Retail Merchants, Greater Cleveland Association of Building Owners and Managers, and the Cleveland Automobile Dealers Association.

The 1851 Center’s amicus brief argues that a sewer district, as an administrative agency of defined and limited powers, has no authority to impose taxes and regulations related to rainwater falling from the sky, i.e. something other than sewage. The brief further maintains that even if the agency had power to address rainwater, it may not tax property owners because the Ohio Constitution prohibits the raising of property taxes without voter approval through a tax levy election.

The 1851 Center’s brief asserts the following:

 

  • Pursuant to the Ohio Constitution, the General Assembly can only confer administrative power on an agency, and such agencies may not make policy.

 

  • The Northeast Ohio Regional Sewer District seeks to manage stormwater – – rain, essentially. The legislature, however, fully aware that it rains and snows in Cleveland, gave the Sewer District no such authority.

 

  • The Sewer District maintains no power to levy a tax without voter approval.

 

  • Although labeled a “fee,” the stormwater fee meets the legal standards of a tax because it is levied without regard to use, on certain property owners who gain no particular benefit from paying it, to advance goals that benefit the general public.

 

“Agencies like this are entirely unaccountable to the public, and this case stands for the principles that such agencies cannot take control of every facet of our lives, down to rainwater and the size of our patios, while taxing development in a manner that punishes and discourages it, with no regard to economic factors or public approval,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“The Sewer District’s tax on impervious surfaces, including nearly every patio, rooftop, and driveway in Northeast Ohio, bares a far closer resemblance to sewage than does rainwater, and the District must consider less invasive methods to dealing with rain, which we have managed to deal with without taxation for all of human civilization.”

Oral arguments will likely take place in the fall.

Read the Amicus Brief here.

Ohio Cities’ Rental Licensing and Inspection Requirements Unconstitutional

Legal Center moves to protect property rights of landlords from unlawful searches and licensing regulations in Mt. Healthy, Ohio

forrentColumbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin Ohio municipalities, and the City of Mt. Healthy in particular, from enforcing new “Rental Permit Programs” that require small landlords to undergo warrantless inspections, pay permit fees, and obtain a license simply to continue renting their houses to tenants.

Such municipal ordinances, such as the Mt. Healthy ordinance which became effective in March, in addition to restricting Ohioans’ property rights, subject property owners and tenants to open-ended warrantless searches that violates the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. Further, the Rental Permit Program discriminatorily applies only to single family homes, and not to multi-family residences, such as apartments.

The legal action is filed on behalf of four rental property owners and one tenant, all in the City of Mt. Healthy, Ohio, which is located just outside of Cincinnati in Hamilton County. These property owners have long rented their property in Mt. Healthy without license or inspections, and their properties have never been the subject of complaint by tenants, neighbors, or others.

The City has threatened to criminally prosecute and even imprison these landlords if they continue to rent their homes without first submitting to an unconstitutional warrantless search of the entire interior and exterior of these homes.

Both the United States and Ohio Supreme Court have invalidated warrantless inspections of rental property, and repeatedly held that warrantless administrative inspections of business property are generally invalid, absent exigent circumstances.

Nevertheless, Ohio cities have vigorously sought to collect licensing fees from area landlords and find cause to impose fines, and the warrantless searches serve as the lynchpin to each of these goals.

Ordinances such as the Mt. Healthy Rental Permit Program establish an absolute prohibition on renting property within a community, even though the landlord may have long done so and even though his or her property may be in pristine condition, without a government-approved license that cannot be acquired without first paying a $100 annual fee per rental home and submitting to an open-ended warrantless search of the property, inside and out.

The lawsuit seeks to restore Ohio small business owners’ freedom from warrantless searches without probable cause. In doing so, the 1851 Center’s Complaint explains the following:

 

  • Searches of homes, even when business property to the owner, require a warrant, and warrantless searches violate Ohioans’ Fourth Amendment rights.

 

  • Even if a city were to seek a warrant to insect a rental home, in the absence of serious complaints about the property or an emergency, regulatory schemes such as rental permit programs do not allow cities to seek and obtain warrants to search homes.

 

  • Licensing fees that are designated for the purpose of conducting unconstitutional searches are also unconstitutional, and cities cannot require their payment.

 

“Local government agents do not have unlimited authority to force entry into Ohioans’ homes or businesses. To the contrary ‘houses’ are one of the types of property specifically mentioned by the Fourth Amendment; and Ohioans have a moral and constitutional right to exclude others, even government agents, from their property. Entry requires either a warrant or an emergency, and neither is present with respect to these suspicionless rental inspections,” said Maurice Thompson, Executive Director of the 1851 Center.

“Government inspections of one’s home frequently results in arbitrary orders to make thousands of dollars worth of untenable improvements to even the most well-maintained properties. The right to own property in Ohio has little value if local governments can continuously chip away at one’s right to actually make use of that property, requiring government permission slips for even the most basic human arrangements.”

Read the Rental Property Owners’ Complaint HERE.

Read the Rental Property Owners’ Motion for Preliminary Injunction HERE.

Legal Center to High Court: Traffic Cameras Unconstitutional in Ohio

Toledo’s enforcement scheme for enforcing traffic camera infractions violates Ohio Constitution

Red-light-cameraColumbus, OH – The 1851 Center for Constitutional Law today submitted to the Ohio Supreme Court its brief in Walker v. City of Toledo asserting that the City of Toledo’s method of fining drivers under its automated traffic camera violates the judicial article of the Ohio Constitution.

Joining the 1851 Center on the Brief are 21 State Representatives and eight State Senators.

The 1851 Center’s brief argues Section 4, Article I of the Ohio Constitution requires that Ohioans’ rights and liabilities must be determined by elected judges unless the General Assembly has created statutory authority for something less than a judge.

This means that the City is required to use municipal judges to enforce the camera violations, rather than the administrative hearing officers that all cities currently use. However, these cities’ agreements with private camera corporations require the use of administrative hearing officers.

“While the issue in this case may sound like a mere procedural hang-up, we are confident that if we succeed, traffic camera violations will essentially become impossibly expensive and untenable for Ohio cities to enforce. If we win, these cameras will quickly disappear from Ohio,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

The 1851 Center’s brief asserts the following:

  • Through the Ohio Constitution, citizens vested judicial power in the courts only. And Ohio cities’ hearing officers exercise “judicial power” when they determine whether Ohio drivers are liable for the violation.
  • While the Ohio Constitution permits the Ohio General Assembly to create additional judicial power, legislators have never created blanket authority for cities, or traffic-camera specific authority. Instead, they have indicated that all such violations must run through municipal courts.
  • The City of Toledo, like other Ohio cities, cannot create judicial power through local ordinances.
  • “Administrative” traffic camera enforcement violates Ohioans’ right to defend themselves before an elected judge, as well as their due process right to judicial oversight before deprivation of their vehicles.

“At the end of the day, Due Process means that you get to see a judge before government takes your money or your car,” said Thompson. “Through these camera agreements, Ohio’s local governments are essentially selling to private corporations the right to fine their citizens and take their vehicles. We believe that it’s time to end this practice.”

The General Assembly has taken no action to enable administrative enforcement, but has instead maintained a longstanding statute requiring that municipal courts must field cases related to municipal ordinances, unless parking-related. This means that the City is required to use municipal judges rather than administrative hearing officers.

The municipalities maintain that constitutional “home rule” authority lends them the power to create judicial authorities such as the hearing officers. However the Ohio Supreme Court has rejected such a claim four times between 1925 and 1959, stating that only the General Assembly can create additional judicial officers, and violations of city ordinances must be handled in municipal courts. The Appellate Court was also unconvinced.

The Brief explains that if Ohio’s high court gives a pass to municipalities, it will be turning upside down the Ohio Constitution’s requirement that Ohioans have access to an actual judge before being deprived of their property. Toledo exacts a $120 fine, and seizes or immobilizes the vehicles of those who do not or cannot pay.

Joining the 1851 Center’s Brief is a bipartisan coalition of legislators, including State Senators Seitz, Schaffer, Jordan, Jones, Uecker, Patton, and Ecklund; and State Representatives Mallory, Adams, Maag, Becker, Lynch, Boose, Conditt, Perales, Hacket, Blair, Adams, Stautberg, Rosenberger, Dovilla, Blessing, Patmon, Beck, Reece, Hall, Derickson, and Barnes.

Read the Amicus Brief here.


March 17, 2014: WBNS-10TV: Ohio Supreme Court Could Soon Determine Fate Of Red Light Traffic Cameras [VIDEO]

March 15, 2014: Toledo Blate: State lawmakers, liberties groups oppose devices

March 14, 2014: San Francisco Gate via Associated Press: Ohio legislators, liberties groups oppose cameras

March 13, 2014: 610 WTVN: Court case could spell the end of traffic-enforcement cameras

Teachers Union Places 1851 on “Enemies” List

1851 Center responds to unearthed Ohio Education Association “Agenda.”

oea1Columbus, OH – The 1851 Center for Constitutional Law today issued the following response to news that Ohio’s largest teachers union, the Ohio Education Association, has named it to its “enemies” list:

Today, the 1851 Center learned that OEA invests its time in identifying its enemies, and that deliberating on how to “deal” with them.

The Agenda for the OEA 2014 Collective Bargaining Conference outlines its “Critical Issues Sessions.”

What the OEA “considers critical” is identifying and destroying its “enemies.” Session H of the OEA’s annual meeting was entitled “Exposing Our Enemies: Anti-Union and Anti-Public Education Forces.” There, the OEA explains, “Participants will learn the scope and main goals of key local and national anti-union and anti-public education groups pushing the corporate school reform agenda. Participants will explore key major opposition and corporate reform players, including the Koch brothers, Students First, ALEC, Tea Party Patriots, the 1851 Center for Constitutional Law, and the Ohio School Board Leadership Council. Participants will learn how to identify . . . enemies and key players in their own communities. . . “

Equally disturbing, the other “critical” sessions were largely devoted to how these government employees could obtain less accountability and more public funds for themselves at taxpayer expense: Collective Bargaining, Negotiations, Compensation, Teacher Rights and Working Conditions, Bargaining Teacher Evaluations, and ensuring the rights of lesbian, gay, transgender, and bisexual employees.

Not one of these sessions concern how to become a better teacher. That apparently is not considered “critical.”

These are the people who have captured the power to educate Ohioans’ children and intercept Ohioans’ funds. And this is, literally, their agenda.

They did not share this agenda willingly. But we will share ours.

We support defending constitutional rights and limiting government. As to education, this simply means the following:

 

  • Freedom of educational choice for Ohio parents and children.

 

  • Fiscal restraint and responsibility, rather than persistently resorting to increasing property and income taxes to fund public school districts.

 

  • Freedom for Ohioans who are or wish to become teachers to decide for themselves whether to pay a labor union.

 

  • Transparent ballot language and no use of public resources to pass levies.

 

Are these principles “anti-union” or “anti-education”? You decide.

But if supporting freedom of choice, educational opportunity, limited taxation, and fiscal responsibility makes us an enemy of the Ohio Education Association, then we proudly stand as an enemy of the Ohio Education Association; and we are honored to appear on this list. Perhaps dissimilar from the OEA, our allegiance is to the betterment of Ohioans and their children; not to the union self-interest that consistently operates to their detriment.

The 1851 Center maintains that Ohioans would be better served with public servants who spend more time concerning themselves with educating Ohioans’ children, and less time attempting to plot political victories and milk already-struggling Ohio taxpayers.

But this won’t happen under our current set of rules; and so it’s time for those rules to change.

We remain committed to protecting you and your family from these people.

 

Review the OEA’s entire agenda HERE.

February 24, 2014: 610 WTVN: Maurice Thompson’s radio interview with Joel Riley [AUDIO]

Ohio Constitution Prohibits Legislators from Enacting State Insurance Mandates

Legal center advises Ohio legislators that mandating health treatments and benefits violates Ohio’s Health Care Freedom Amendment

administrativelyColumbus, OH – The 1851 Center for Constitutional Law today emphasized to Ohio’s state senators and representatives that the Ohio Health Care Freedom Amendment, added to Ohio’s Bill of Rights in late 2011, prohibits the state from mandating that Ohioans health insurance purchases include new previously-un-mandated benefits and services. The 1851 Center is the public interest law firm that drafted the Amendment and represents its advocates and sponsors.

The 1851 Center legal memorandum (“A Policymaker’s Guide to Following the Health Care Freedom Amendment“) comes in response to recent news of the Kasich Administration’s purported executive action attempting to mandate that all Ohioans purchase autism-related coverage. The memorandum observes that while the Governor’s action — simply a letter to the Obama Administration recommending that it impose autism coverage on Ohioans — may not be a forbidden “law or rule,” any state legislation will indeed violate the Amendment.

Specifically, the memorandum explains that any state-based insurance mandate is highly likely to violate all three substantive provisions of the Amendment, while also transgressing its spirit and purpose:

  • Most mandates will compel participation in, through purchase of coverage for, a “health care system,” as that phrase is broadly defined in the Amendment. (Division (A) of Section 21, Article I).
  • Mandates necessarily prohibit the purchase of insurance coverage without the newly-mandated coverage. (Division (B) of Section 21, Article I).
  • Mandates impermissibly sanction those who sell or purchase private health care insurance without also purchasing the newly-mandated coverage. (Division (C) of Section 21, Article I).

“State-based health insurance mandates are one of the primary drivers of the increased cost of health insurance premiums in Ohio,” said Maurice Thompson, Executive Director of the 1851 Center. “ We drafted the Health Care Freedom Amendment keenly aware of this problem, and with the full intention of stopping this practice, while further ensuring that the State of Ohio does not compound the challenges presented by Obamacare’s health care mandates and penalties.”

The memorandum further notes that the official “arguments for” the Amendment, approved by the Ohio Secretary of State and which appeared on Ohioans’ ballots, specified that the Amendment prohibited state government from forcing Ohioans “to pay more to upgrade your existing health insurance to meet government requirements,” and would “[p]rohibit government from forcing you into government insurance or medical treatment you don’t want.”

Finally, the memorandum observes that “[i]f the purpose behind the mandate is to provide access for those who cannot afford certain types of health treatments or products, then the mandate is a poorly-adapted policy solution,” because mandates conceal state spending and constitute a hidden tax, impose a one-size-fits all system in a world of varying health care needs, do not provide benefits on the basis of need, and impose greater hardships on small business and individuals than others.

Added Thompson, “although many of Ohio’s elected leaders opposed the federal health care mandate and supported our Amendment, six individual health insurance mandates were introduced during Ohio’s last legislative session. As the legislature begins a new session, it is our hope that clarifying the application of the Health Care Freedom Amendment to state mandates may avert unconstitutional legislation and subsequent litigation.”

Read “A Policymaker’s Guide to Following the Health Care Freedom Amendment” HERE.

Learn more about the Health Care Freedom Amendment HERE.

Listen to Maurice Thompson discuss the trouble with state health insurance mandates

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January 26, 2013: Toledo Watch: Autism coverage plan may violate Ohio Constitution’s newest amendment

January 14, 2013: Brian Thomas Morning Show on 55KRC Radio:

Audio clip: Adobe Flash Player (version 9 or above) is required to play this audio clip. Download the latest version here. You also need to have JavaScript enabled in your browser.

January 10, 2013: Heartland.org: Without State Exchange, Ohio Small Businesses Have Standing to Sue IRS

January 9, 2013: NBC4i: Gov. Kasich Signs Directive Mandating Coverage For Autism [VIDEO]

Federal Court: Ohio Precious Metals Dealers Licensing Scheme Unconstitutional

Act regulates business in response to constitutionally-protected advertising, and prohibits legitimate purchases of gold and silver

Columbus, OH – A federal court late yesterday ruled that Ohio’s regulatory scheme governing those purchasing gold, silver, and other precious metals – the Precious Metals Dealers Act- violates the First Amendment.

The ruling, made by Judge Watson of the Columbus division of the Southern District of Ohio, paves the way for Ohio businesses, most prominently coin dealers, to resume purchases of items containing gold and silver content, and in particular, to resume advertising their interest in purchasing inventory consisting of precious metals, free from concern over confiscatory prosecution, fines and regulations.

The 1851 Center for Constitutional Law took up the coin dealers’ case and challenged the state law after the Ohio Department of Commerce threatened to shut down Liberty Coins, of Delaware, Ohio, if it refused to pay considerable fines and obtain a government license to advertise its business.

The lawsuit had sought recognition that the First Amendment applies to and protects “commercial speech,” such as coin dealers’ advertising, and that the Act’s prohibition of advertising by coin dealers was not a means of reducing gold and silver-related theft.

The lawsuit had also made claims asserting that requirements that business owners demonstrate that they have “good character,” “sufficient reputation,” “sufficient financial responsibility,” and “sufficient experience” prior to being permitted to run their businesses were unconstitutionally vague; and that the Act’s authorization of warrantless searches of business owners’ property and records at any time without notice violated their Fourth Amendment rights.

In his 28 page decision, Judge Watson, explaining that “the Act only prohibits the unlicensed buying of precious metals when commercial speech is involved,” emphasized that “a broad injunction completely prohibiting enforcement of the licensing provision is warranted.”

The order, an across-the-board rebuke to Ohio’s regulations and the cavalier enforcement tactics the Ohio Department of Commerce has against Ohio’s small businesses over the past year, concluded as follows:

  • The Department of Commerce failed to show “how holding one’s self out as willing to purchase precious metals contributed to the evils the State seeks to prevent. Moreover, Defendants have not shown how requiring a license only for purchasers of precious metals who engage in commercial speech directly and materially advance those interests.”
  • “[The state] has not shown that forcing those who engage in commercial speech to obtain a license is reasonable,” and “the restriction on commercial speech is more extensive than necessary.”
  • The Department of Commerce “incorrectly” asserts “that the law prevents fraud, money laundering, theft and terrorism by requiring those who wish to engage in the business of buying from the public gold, silver, and other precious metals to be licensed.”
  • “The breadth and number of exemptions undercuts the Defendants’ argument that the licensing scheme is narrowly tailored to protect against theft, fraud, or terrorism.”

The Court added that the Department of Commerce’s aggressive reading of the regulations was “nonsensical,” and that Ohio coin dealers and others “are unable to actually purchase precious metals without facing prosecution due to Defendants’ incorrect interpretation of the Act.”

“We are just trying to make it safe for small businesses to operate in Ohio – – a mission that we wish our state government would share, rather than thwart,” said Maurice Thompson, Executive Director of the 1851 Center. “This Act and those enforcing it treat small businesses who make gold and silver available as public utilities at best, and criminals at worst, irrespective of whether they have done harm.”

Heightened enforcement of the PMDA by the Department of Commerce, under the control of the Kasich Administration, comes in response to accelerated lobbying and financial contributions to candidates by the pawn brokers industry, which is exempt from the regulations, and a direct competitor of those who are subject to the Act. The enforcement, which would have put many coin dealers out of business, also comes at a time of rising precious metals prices, where an increasing number of Ohioans seek to use gold and silver to protect their savings against potential inflation caused by federal government increases in the money supply.

Thompson added “the state misguidedly seeks to advance its mission of ‘preventing theft and resale of precious metals’ through gag orders, warrantless searches, and criminalization of innocent small businesses. Fortunately, the First Amendment allows us to protect Ohioans’ rights to engage in truthful promotion of their businesses.”

Read the Court’s Order Granting Liberty Coins’ Motion for Preliminary Injunction HERE.


December 7, 2012: Bloomberg Businessweek: Ohio gold, silver dealers’ law blocked by judge

December 7, 2012: Ohio Watchdog: OH: Judge blocks catch-22 in state law that threatened entire industry

December 6, 2012: WYTV 33 News: Ohio gold, silver dealers’ law blocked by judge

Legal Center to High Court: Ohio PAC Laws Violate First Amendment

1851 Center asks Ohio Supreme Court to review Ohio Political Action Committee regulations on behalf of Geauga County Blogger

blogger-150x150Columbus, OH – The 1851 Center for Constitutional Law today applied to the Supreme Court of Ohio for jurisdiction over a case challenging the nation’s strictest Political Action Committee regulations.

The legal action is filed on behalf of Edmund Corsi, a Cleveland-area blogger who faces prosecution after blogging about state and local political issues, authoring a pamphlet critical of local politicians, and hosting an informal political discussion group. The state contends that Ohio’s PAC laws required Mr. Corsi to first register with the state and hire a treasurer, and then disclose his home address on his pamphlet and blog, and that by failing to do so, Corsi is subject to criminal penalties and civil fines. Mr. Corsi was referred for prosecution by one of the politicians he criticized – – Geauga County Republican Party chairman Edward Ryder.

The United States Supreme Court has repeatedly confirmed that political speech, even when through group association, in pamphlets or on the internet, is afforded the greatest constitutional protection.

In fact, the Court has already once struck down Ohio’s Political Action Committee regulation, in McIntyre v. Ohio Elections Commission in 1995. There, the Court chastised Ohio courts and the OEC for upholding the regulations after state officials attempted to prosecute a senior citizen for failing to include a “disclaimer” on her homemade flyer advocating against a Westerville property tax increase. Nevertheless, the Ohio Elections Commission maintains that the re-written regulations still require groups of two or more Ohioans who communicate political thoughts to first register as a Political Action Committee, and thereby submit to reporting, disclaimer, and disclosure requirements when communicating.

This case will mark the Ohio Supreme Court’s first opportunity to analyze the re-written PAC regulations, as well as the Court’s first opportunity to consider the effect of the U.S. Supreme Court’s landmark Citizens United decision on Ohio’s campaign finance regulations. There, of potential importance to Mr. Corsi’s case, the Court explained that “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” (At Mr. Corsi’s hearng, the OEC Chairman advised Mr. Corsi to engage a campaign finance attorney if he wished to continue blogging about state and local public policies).

The 1851 Center’s Motion for Jurisdiction asserts the following:

  • Ohio’s PAC regulations unconstitutionally regulate small groups of citizens that spend little or even no money on politics, and do not coordinate with political candidates or campaigns, thereby extending beyond the entire purpose of campaign finance regulations.
  • The costs of complying with the PAC regulations, which includes reporting and disclaimer requirements, administrative burdens, the hiring of a treasurer, and the loss of privacy and anonymity of those who speak out by effectively requiring the disclose of the author’s name and home address on government filing, has the effect of silencing protected speech.
  • The regulations are unconstitutionally vague and overbroad, because they permit the Ohio Elections Commission members to guess at the “primary or major purpose” of the group, without considering whether they have spent money on politics.
  • The OEC improperly overanalyzes Facebook and blogs posts to involuntarily commit a group of citizens as a PAC (federal law prohibits consideration of “internet activities” when determining federal PAC status).

“Ohio’s PAC regulations have long been considered the most oppressive in the nation,” said Maurice Thompson, Executive Director of the 1851 Center. “It would be wise for our Court to hold that the First Amendment does not allow agency bureaucrats and political opponents to use PAC regulations to silence the speech of those who criticize government, using the loss of privacy and expensive reporting requirements of PAC regulations as leverage to intimidate and threaten those expressing differing views, as has been done here.”

Thompson added, “While many Americans fret over government permitting speech by ‘super-PACs,’ they should be more concerned about shocking amount of everyday grass-roots political speech that Ohio is forcing into PAC status – from lawn signs to Facebook pages – and thus essentially prohibiting, at the very same time.”

The case is particularly significant for opponents of local tax levies and “tea party” groups, many of whom are likely to be characterized as Political Action Committees, if the Ohio Election Commission’s ruling is not overturned.

Ohio’s regulations are notable because they are the nation’s only PAC regulations lacking what is commonly referred to as a “monetary trigger”: Ohioans can be forced to register as PACs even if they neither expect to or actually give money to or take money from political candidates or campaigns, and otherwise spend no money on politics.

Read the Geauga Constitutional Council’s Motion for Jurisdiction HERE.

1851 Center Applauds Kasich Agreement on Obamacare Exchange

flagstethoscope-300x200Columbus, OH – The 1851 Center for Constitutional Law today registered its approval, on behalf of conservative and libertarian leaders throughout Ohio, of the Kasich Administration’s agreement to refuse to implement a “state-run” Obamacare exchange.

The Administration’s agreement is significant for several reasons:

  • The agreement averts litigation that would have pitted Section 21, Article I of the Ohio Constitution, the 1851 Center for Constitutional Law, and grassroots backers of the Ohio Health Care Freedom Amendment against the administration (Division (A) of the Health Care Freedom Amendment prohibits the “employer mandate” that a state exchange would have attempted to impose).
  • The agreement means that Ohio will not impose the “employer mandate,” a penalty of up to $3,000 per employee that must be otherwise paid to the federal government by Ohio employers who do not provide government-approved health care insurance for their employees.
  • The agreement means that Ohio will not provide Obamacare “premium assistance,” a taxpayer-funded subsidy to individuals that masks the true increased costs of health insurance premiums imposed by Obamacare (the Administration estimates that Ohioans’ health insurance premiums may increase by as much as 85 percent).
  • The agreement means that Ohio will not assist the federal government in enforcing Obamacare’s “individual mandate.”
  • The agreement means that Obamacare will be significantly more difficult to enforce, dramatically enhancing the probability that the Act will be “re-opened” to debate, amendment or repeal.

While the issue appears esoteric, the impact of the Administration’s decision cannot be underestimated. The Act’s “employer mandate” taxes employers up to $3,000 per employee if they fail to offer required health benefits. But that tax applies only if employers receive tax credits or subsidies to purchase a health plan through a state-run insurance exchange.

The federal government might create exchanges in states that decline to creat e state-run exchanges, but it cannot offer credits through its own exchanges. And where there can be no credits, there is nothing to trigger that $3,000 tax on employers. The Obama Administration appears intent on using the Internal Revenue Service to impose the employer mandate, but there is no legal authority to support doing so, and the regulation attempting to do so is unlikely to be upheld.

Further, it is highly likely that Obamacare will collapse without the employer mandate and tax credits, just as it would have without the individual mandate.

In addition to inviting Obamacare into Ohioans’ lives, the Kasich Administration acknowledges that a state-run exchange would cost about $43 million annually, versus about $1.6 million to participate in the federal exchange.

“We are pleased that the Kasich Administration heeded the clear effect of the Health Care Freedom Amendment (passed in 2011), which prohibited Ohio from enacting a state based Obamacare exchange,” said Maurice Thompson, Executive Director of the 1851 Center. “We can now turn our attention away from the Kasich Administration, and begin to prepare litigation that ensures that Ohio employers will not be subjected to the $3,000 per employee fine, and that Obamacare ultimately collapses under the weight of its own legal infirmities.”

Read the 1851 Center’s explanation of why a state-run Obamacare exchange is bad policy, and violates the Ohio Constitution, here.


November 16, 2012: WKSU NPR: Kasich rejects health-insurance exchanges

November 16, 2012: Ohio Liberty Coalition: Governor Kasich confirms that creation of Ohio’s Obamacare exchange will be left to the feds

November 19, 2012: WYSO Ohio Public Radio: Kasich Tells Feds Ohio Won’t Set Up Its Own Health Care Exchange

November 19, 2012: Insurance News Net: Ohio: No State Health Care Exchange

November 20, 2012: Ohio Watchdog: OH: Step 2 — Sue IRS over Obamacare rule

November 21, 2012: Watchdog.com: VA: NFIB, Cuccinelli weigh Obamacare exchange costs; could Virginia get a pass?

November 23, 2012: Heartlander: Kasich Decides Against Obamacare Implementation

January 10, 2013: Heartland.org: Without State Exchange, Ohio Small Businesses Have Standing to Sue IRS

Legal Center Move to Protect Rights of Ohio Gold and Silver Dealers to do Business

Regulations prohibit advertising and impose warrantless searches

Columbus, OH – The 1851 Center for Constitutional Law today moved in federal court to immediately enjoin the state from enforcing the “Ohio Precious Metals Dealers Act,” against Ohio coin dealers threatened with criminal sanction for advertising their businesses, and sweeping warrantless searches of their business records and properties without probable cause.

The legal action is filed on behalf of Liberty Coins, a Delaware, Ohio coin dealer ordered by the Ohio Department of Commerce to cease all advertising indicating that it purchases gold and silver and all actual purchases of gold and silver, and threatened with a $10,000 fine and jail time if it does not comply.

The Supreme Court has repeatedly confirmed that First Amendment applies to “commercial speech,” which includes advertising. Nevertheless, the Ohio Department of Commerce has begun vigorous enforcement of regulations prohibiting coin dealers from advertising without a license, and requiring a license if they do advertise (conditioned on a state finding of “good character and reputation”). Once licensed, state and local agents may search and seize any item or business record without a search warrant or finding of probable cause, and may do so on a daily basis.

The Department of Commerce enforcement policies, which exempt banks, jewelers, and other special interests, appear to be targeted at preventing theft and resale of gold and silver items. However, the policies punish any coin or precious metals dealer who advertises “we buy gold and silver,” even if that dealer, as Liberty Coins does, purchases gold and silver items exempted by the Act, such as certain collectibles, coins, hallmark bars, ingots, numismatics.

Further, the regulations apply only to coin dealer to advertise, entirely exempting those who do not. The state defines advertising to include business cards and signs in storefront windows making reference to gold and silver.

The lawsuit seeks to restore the right of Ohio retail gold and silver coin dealers to be free from a licensing regime that punishes them on the basis of their speech, and subject them to unconstitutionally sweeping searches and seizures.

“This Act and its aggressive enforcement treats the many Ohio small businesses who participate in gold and silver markets as public utilities at best, and criminals at worst, irrespective of whether they have done harm,” said Maurice Thompson, Executive Director of the 1851 Center.

“The state misguidedly seeks to advance its mission of ‘preventing theft and resale of precious metals’ through gag orders, warrantless searches, and criminalization of innocent small businesses. Fortunately, the First Amendment allows us to protect Ohioans’ rights to engage in truthful promotion of their businesses, and to run a business without constant subjection to unlimited warrantless searches of one’s property and records by state agents. And protect these rights we must: if these regulations are upheld, there is nothing stopping the state from imposing similarly on all business activity with the state.”

The state’s heightened enforcement tactics, which effectively put many coin dealers out of business, come at a time of rising precious metals prices, where despite an already burdensome state sales tax on the purchase of precious metals, an increasing number of Ohioans seek to use gold and silver to protect their savings against potential inflation due to federal government increases in the money supply.


Read Liberty Coins’ Complaint HERE.
Read Liberty Coins’ Motion for Preliminary Injunction HERE.


November 16, 2012:WBNS-10TV: Scrap Metal Fight: A coin dealer is suing the state over scrap metal license requirements [VIDEO]