With the coming political season soon upon us, the Sixth Circuit has struck down an Ohio statute that criminalized the acceptance by state Attorney-General or county-prosecutor candidates of campaign contributions from Medicaid providers or persons with an ownership interest in a Medicaid provider. See Lavin v. Husted (6th Cir., Case No. 11-3908, Aug. 3, 2012) (PDF).
The statute at issue — Ohio Revised Code § 3599.45 — had been on the books since 1978, when the General Assembly enacted it for the purpose of preventing corruption in Ohio’s electoral politics. According to the Ohio Secretary of State, the defendant below, “Medicaid fraud is a problem in Ohio (as it is elsewhere), and … if prosecutors are permitted to accept contributions from Medicaid providers, they might choose not to prosecute contributor-providers that commit fraud.” The law was challenged in 2010, however, when would-be contributors to then-Attorney General Richard Cordray’s reelection campaign filed suit after Mr. Cordray’s campaign refused to accept their contributions, citing the legal prohibition. The district court granted summary judgment for the Secretary of State, ruling that the purpose of the statute was for “preventing corruption” and that the court should not “second guess” the General Assembly’s conclusion.
Writing for a unanimous panel that included Judges Daughtrey and Donald, Judge Kethledge reversed the district court. As an opening matter, the Court found that the issue was not moot, despite the fact that Mr. Cordray’s campaign was long over, determining that the matter was capable of repetition while evading review. On the merits, the Court accepted that Ohio had an important interest in preventing corruption, but it stated that Ohio also had to “demonstrate how its contribution ban furthers a sufficiently important interest” (emphasis in original). This, the Court ultimately determined, Ohio could not do. Ohio could cite to no evidence that prosecutors in Ohio (or elsewhere) had abused their prosecutorial discretion with respect to contributors who were also Medicaid providers. The Court also found that the statute had not been closely drawn: “in a one year period, only .003% of Ohio’s Medicaid providers — or 316 of them — were implicated in Medicaid fraud. And yet § 3599.45 prevents all 93,000 of Ohio’s Medicaid providers from contributing to candidates for Attorney General or county prosecutor.” Such a ban could not survive First Amendment scrutiny.
Even as it struck down the statute, however, the Court observed that a less restrictive ban might survive a First Amendment challenge: “Such a ban might permit contributions from Medicaid providers with clean records, but ban them from providers penalized civilly for billing violations … or convicted criminally of Medicaid fraud under any state or federal law.” Whatever the General Assembly may eventually decide, the path is now clear for Medicaid providers to contribute to the county prosecutor candidate of their choice in the coming election season.