Monday, August 6, 2012

Sixth Circuit Overturns Ban on Medicaid Provider Campaign Contributions

A three-juge panel of the Sixth Circuit ruled in Lavin v. Husted that Ohio's law making it a crime for state Attorney-General or county-prosecutor candidates to accept campaign contributions from Medicaid providers violated the First Amendment.  The court held that the law wasn't "closely drawn" to meet a "sufficiently important interest," Buckley v. Valeo, because the state didn't sufficiently support its stated interest in preventing corruption and because the law swept too broadly.

The case only says that there are some teeth in the First Amendment jurisprudence involving campaign contributions--the case says nothing about restrictions on expenditures--and that a government seeking to restrict contributions has to do some homework in tailoring its law.  Still, the case leaves plenty of room for the government to regulate contributions, just so long as the government demonstrates its problem with corruption and appropriately tailors its law to meet that problem.

Ohio Revised Code Section 3599.45 prohibits a candidate for the office of attorney general or county prosecutor from knowingly accepting any contribution from a Medicaid provider or any person with an ownership interest in a Medicaid provider.  The state justified the ban based on its interest in preventing corruption--that is, preventing an attorney general or county prosecutor from using a campaign contribution as a factor in deciding whether to prosecute for Medicaid fraud.

The Sixth Circuit ruled that Ohio didn't sufficiently support its interest in preventing corruption, and that the ban swept too broadly.  As to the former, the court ruled that Ohio simply recited its interest in preventing corruption, but failed to demonstrate its interest, as required by Buckley.  (In fact, the balance of the evidence in the case only suggested the opposite--that Ohio had no problem of selective prosecution for Medicaid fraud based on campaign contributions.)  The court contrasted Ohio's ban with Connecticut's ban on contributions by state contractors to candidates for state offices--a ban that the Second Circuit upheld in Green Party of Connecticut v. Garfield, based on Connecticut's demonstrated history of bribes and kick-backs involving state contractors.

As to the latter, the court said that the ban applied to all Medicaid providers and persons with an ownership interest in a Medicaid provider, even though only .003% of them were implicated in Medicaid fraud in a recent year.  The court wrote that "[i]t is not hard to imagine what a less restrictive ban might look like" and held that this sweeping ban was not sufficiently tailored to meet Ohio's stated (but, as above, not sufficiently demonstrated) interest in preventing corruption.


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Thanks for writing about this. The second sentence of the last paragraph is incorrect, however. The court said it was NOT hard to imagine what a less restrictive ban might look like. Huge difference. Please make the correction. This was a statute that was infirm on so many levels. I encourage anyone interested to read the appellants' briefs for a thorough discussion.
Sandhya Gupta

Posted by: Sandhya Gupta | Aug 7, 2012 5:57:45 AM

Every time I read a campaign finance law decision, I weep (metaphorically, of course) at the ongoing erosion of constitutional protection for rights central to a self-governing nation. Political association and expression are fundamental rights, and laws adversely affecting them should receive strict scrutiny, according to some precedents. This means that the government must show it is furthering a compelling interest, and using the least restrictive means to do so. Yet Buckley, after acknowledging the fundamentality of the constitutional rights at stake, and calling for "the closest scrutiny," speaks of "a sufficiently important interest" and "means closely drawn." And as you point out, the Sixth Circuit judges the law at issue for a "sufficiently important interest." Does this mean "compelling?" If yes, why not say so? If no, then what does it mean, a balancing test, in which the degree of interference is weighed against the importance of the interest (to the future derogation of all fundamental rights)? Shouldn't judges write with precision, especially when dealing with such vital constitutional interests? The law was struck down this time, so perhaps no damage was done to protection of fundamental rights, but the squishy use of "close" and "sufficient" opens a dangerous door to result-oriented decision writing.

Posted by: Jeffrey G. Purvis | Aug 7, 2012 10:14:28 AM

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