Commentary

Guarding Ohio’s referendum process

10/5/2013

A vital section of the Ohio Constitution, subtitled “In whom power vested,” was the focus of a federal court hearing last week in Columbus. The lawsuit before U.S. District Court dealt with the right of citizens to petition their government and with freedom of speech.

What a libertarian-leaning public interest law center aims to accomplish by filing a federal suit against a new Ohio law that restricts the referendum process goes to the heart of government of, by, and for the people. The 1851 Center for Constitutional Law — typically aligned with conservative causes — is fighting to uphold a fundamental right.

Politics makes strange bedfellows. But when it comes to ensuring that critical checks and balances about government reside with Ohio citizens, support for the 1851 Center’s campaign to enjoin a bad law should be nonpartisan.

At issue are state rules that took effect in June, making it tougher for voters to repeal laws. These provisions ended the long-standing practice of allowing advocates to continue to collect signatures to place a ballot issue before voters while Ohio’s secretary of state reviews the initial petition.

The new law also prohibits non-Ohio residents from gathering signatures. The arbitrary barriers won’t deter well-funded special interest groups.

But they could blunt the kind of citizen activism that led voters to reject Senate Bill 5, which would have changed Ohio’s collective bargaining laws. Ordinary Ohioans who found a voice through the referendum and initiative process to propose changes to state law — including the statewide smoking ban and an increase in the state’s minimum wage — might not be heard.

Which suits state Sen. Bill Seitz (R., Cincinnati) just fine. The law’s sponsor crafted a legislative solution in search of a problem.

“He’s paternalistic,” said Maurice Thompson, the 1851 Center’s executive director. “He doesn’t trust the average citizen to be intelligent enough to evaluate the issues or advance the issues through initiative or referendum.”

That explains the decision to ramrod the bill through the General Assembly and send it to the governor’s desk last March with little public input.

“The more powerful the legislature is, and the less effective the courts or the citizen through initiative or referendum laws, the less checks there are on legislative power,” Mr. Thompson said, “and the more likely campaign contributions and things like that will drive decision-making in Columbus.

“We like the checks on government that the initiative and referendum provides, and the opportunities for citizens to take lawmaking power into their own hands and deal directly with the issues,” he told me. “That’s why we want to defend it.

“Obviously, if we’re successful, the outcome helps anybody on the right or on the left or otherwise who wants to do issue advocacy through initiative petitions in Ohio,” Mr. Thompson said. “It’s also basically a freedom of trade issue.”

His organization is challenging the constitutionality of Ohio’s new restrictions on who can circulate referendum petitions. “The rule is you can’t hire out-of-state circulators,” he said. “You can’t hire in-state circulators, because there really aren’t any petition companies in Ohio, so it’s an effective ban.”

Moreover, Mr. Thompson added, restricting work on petition drives to Ohio companies limits supply and raises cost. It may cost more to collect signatures, which could dissuade many average citizens from launching a petition campaign.

But to those in political control, that means less risk of citizen initiatives circumventing legislative agendas, he said. “[The new law] aggrandizes the power of the legislature. It forces all of the money, all of the eyes, all the attention on state senators and state representatives,” he said.

“The law [pertaining to out-of-state residency requirements] was declared unconstitutional in 2009, and it’s been declared unconstitutional in every circuit to have considered the decision,” he added. “Former [Ohio] Secretary of State [Jennifer] Brunner issued a directive that the law was unenforceable because it was unconstitutional.

“Frankly, we’re surprised that Secretary of State [Jon] Husted said he intended to enforce it,” Mr. Thompson said. “But we expect to win that issue and have that law enjoined by the end of the year at the latest.”

More power to him — and to the referendum process, honored since 1912, for all Ohioans.

Marilou Johanek is a columnist for The Blade.

Contact Blade columnist Marilou Johanek at: mjohanek@theblade.com