- The Washington Times - Thursday, March 3, 2011

Former Rep. Steve Driehaus says the Susan B. Anthony List is a big-time liar that cost him his job in Congress.

The pro-life group, which waged an aggressive attack on his re-election campaign last year, says that’s nonsense and contends the Ohio Democrat is trying to stifle free speech.

While the two sides duke it out in court, the legal dispute could serve as a test case for election laws nationwide.

The dispute began last year when the Susan B. Anthony List tried to post billboards in Mr. Driehaus‘ Cincinnati-area district accusing him of supporting “taxpayer funded” abortions when he voted for the Obama administration’s health care initiative.

The Ohio Democrat filed a complaint with state election officials that the signs were illegal under Ohio’s “false statements” law. The billboard company, not wanting to be added to the complaint, refused to put up the signs.

The Susan B. Anthony List fired back by filing a lawsuit in U.S. District Court arguing that the state election law governing false claims is unconstitutional because it violates the group’s right to free speech.

Mr. Driehaus, who lost his re-election bid in November to Republican Steve Chabot, responded by filing a counterclaim for defamation, saying the group’s attacks during his 2010 campaign resulted in “loss of livelihood.”

“A lie is a lie, regardless of who or how many might believe it to be true,” reads the opening line of Mr. Driehaus‘ counterclaim that was filed in December. “The lies worked.”

The Susan B. Anthony List says it spent about $200,000 on radio spots, mailers, telephone calls and other methods to oppose the Driehaus campaign. The group also shelled out a total of $11 million nationwide during the 2010 midterm election campaign season to oppose candidates whom it considered sympathetic to abortion, even though some of those candidates — including Mr. Driehaus — identified themselves as “pro-life.”

The group’s president, Marjorie Dannenfelser, said if Mr. Driehaus‘ claims “weren’t so threatening to democracy it would be laughable.”

“Any citizens ability to criticize a public official ought to be protected,” she said. “If he’s going to charge somebody’s depriving his livelihood, he should be charging every voter that voted against him.”

ACLU weighs in

The conservative Susan B. Anthony List has attracted a curious ally: The American Civil Liberties Union, which often identifies with liberal causes, filed an amicus brief on behalf of the group.

The ACLU called the Ohio false statements law “vague and overbroad” and said it “cannot withstand constitutional scrutiny.”

“The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech,” reads the brief, filed in October. “The best answer for bad speech is more speech.”

Lanae Erickson of the centrist Washington think tank Third Way agreed that the Ohio law - a criminal statute - seems “unreasonable.”

Ms. Erickson, deputy director of Third Way’s Culture Institute, said convicting the Susan B. Anthony List for its attacks on Mr. Driehaus would be like prosecuting former Republican vice-presidential candidate Sarah Palin for her claim that President Obama’s health care reform would create “death panels.”

“This really isn’t the way we want our political discourse to operate,” she said.

About a dozen states have false statement elections laws similar to Ohio’s. Although some legal analysts question their constitutionality, the laws’ high legal standards mean guilty verdicts are difficult to obtain.

Speech critical of public officials has strong protection under the First Amendment, said Daniel Tokaji, an authority on elections law at Ohio State University’s Moritz College of Law.

“To sue for defamation, for example, you’d have to prove not only that the statement is false but that it was a knowingly false statement made with reckless disregard for the truth,” he said. “This is a really high standard and from a practical matter very difficult to meet.”

The Susan B. Anthony List says the case could set a national precedent.

“A win here will overturn a bad law that is likely to spur legal challenges in other states,” Ms. Dannenfelser said.

Debate over language

The Susan B. Anthony List’s claim that the health care reform law allows for taxpayer-funded abortions has been widely disputed.

“It doesn’t,” Ms. Erickson said. “So I don’t think that’s a good argument for them.”

Jessica Arons, director of the Women’s Health and Rights Program at the Center for American Progress, a liberal-leaning Washington think tank, said the group is “playing very fast and loose with their language.”

“They really have to make some convoluted arguments to claim that the bill funds abortions” with taxpayer money, she said. “It in no way shape or form in the traditional sense funds abortions with taxpayer money.”

Abortions are legal under the bill, but can be paid only from a separate account with private insurance premiums, with the money kept separately from government funds. President Obama also signed an executive order last year that affirmed long-standing restrictions on taxpayer-financed abortion.

Mr. Driehaus‘ defense says he is “well known for opposing abortion” and worked to ensure that health care law didn’t provide for taxpayer-funded abortions.

“Rather than credit Mr. Driehaus for this accomplishment, the SBA List has falsely characterized him as voting for a bill that includes taxpayer funding for abortions, when the SBA List knows the exact opposite to be true,” the lawsuit says.

Pro-life activists say the money is fungible and that neither the law nor the executive order provides a sufficient firewall to prevent taxpayer-funded abortions.

“They are managing a program that certainly involves abortion coverage, and using this little accounting gimmick doesn’t keep the federal government out of the abortion business,” Ms. Dannenfelser said.

The House Judiciary committee on Thursday approved the No Taxpayer Funding for Abortion Act, which calls for the permanent prohibition of taxpayer funding of abortion across all federal programs.

The bill, which is designed to reduce the need for numerous separate policies to prevent government funding for abortion, is now headed to the full House.



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