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Court strikes down new political contribution law, but appeals possible

Continue to follow law, counsel advises

Although a Franklin County trial court has struck down controversial campaign finance restrictions adopted in haste by the Ohio General Assembly a year ago, engineering company owners should continue to abide by the law for now, advises ACEC Ohio's legal counsel.

On December 5, Judge John Bender ruled that basic procedural requirements of the Ohio Constitution relating to the enactment of state laws were violated in the course of action on House Bill 694. Essentially, the court ruled that only the Ohio House of Representatives had actually approved the version of the bill that was officially filed with the office of the Secretary of State and signed by former Governor Bob Taft.

When they took up the issue shortly after the election of November 2006, majority Republicans in the Ohio House and Senate said H.B. 694 was needed to stop state and local officials from awarding lucrative contracts and collective bargaining agreements to companies and labor unions from whom they receive campaign contributions. Critics accused the Republicans of enacting the campaign contribution restrictions to make fundraising more difficult for newly elected Democratic Governor Ted Strickland.

The version of the bill originally enacted in the House was approved by the Senate, but later that day the Senate withdrew its approval and adopted an amended version of the bill. That amended version later received the concurrence of the House, but the legislation filed with the Secretary of State and signed January 2, 2007, by Taft was the original bill, which only the House had approved.

On January 15 of this year, the House Clerk informed newly elected Secretary of State Jennifer Brunner of the error. She subsequently permitted the the substitution of the first 33 pages of the 35-page bill adopted by the House, so that the language on file with the Secretary of State would correspond with what the two houses had actually passed.

Shortly thereafter, the United Auto Workers and others filed a lawsuit challenging the legislation on both procedural and constitutional grounds.

In his opinion, Judge Bender said, "Because no law can be enacted without the concurrence of a majority of both houses of the General Assembly, Sub. H.B. 694 cannot be the law of Ohio."

He rejected the suggestion that replacement of pages in the bill was an error so small that it could be ignored. Attorneys for the state had cautioned against "an overly punctilious insistence on form over substance" in unsuccessfully urging him not to invalidate the measure.

"Substituting 33 pages of an enrolled bill cannot be viewed as de minimis, especially here, where the enrolled versions of Sub. H.B. 694 and Am. Sub. H.B. 694 are each only 35 pages long," he said.

The judge directed attorneys for both sides to cooperatively draft a judgment entry that implements his decision no later than December 18. As part of that judgment order, enforcement of the contested statute could be suspended or the court could allow the law to stand pending appeals.

Attorney General Marc Dann said he would review Judge Bender's decision before deciding whether to file an appeal. "Until Judge Bender issues his order, however, I want to remind all office holders and others affected by his decision that House Bill 694 remains in effect," Dann said in a prepared statement.

Further complicating the case is the fact that only last June, the General Assembly enacted several significant amendments to the sections of law created in House Bill 694. Proponents of the law argue that these amendments effectively resulted in re-enactment of the entire statute, rendering moot any previous procedural failings.

"Because this decision is still so new, we advise your members to remain cautious about contributions for the time being," said Maria Armstrong, an attorney with the law firm of Bricker & Eckler. "We will continue to watch this case and will let you know if it is appealed or how it may be interpreted."

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