2007 has been an interesting and confusing year in the area of campaign finance. Amended Substitute House Bill 694, effective April 4, 2007, enacted significant changes in Ohio's laws regulating political contributions by government contractors. The new law, found primarily in O.R.C. 3517.13, has been the subject of significant controversy, including a legal challenge, a legislative amendment, and numerous questions about its application and meaning. Analysis of the new law and summaries of earlier proceedings appear elsewhere in this Resource Center. This article focuses on more recent developments related to the pending case challenging the constitutionality of HB 694.

On December 5, 2007, the Franklin County Court of Common Pleas Court granted a Motion for Summary Judgment in a series of consolidated cases that raised numerous challenges to H.B. 694. The result was a ruling that H.B. 694 "cannot be the law of Ohio." While such a ruling would typically result in the bill being unenforceable, the fate of O.R.C. 3517.13 is not quite so clear. In this case, O.R.C. 3517.13 existed prior to H.B. 694 and was re-passed and amended while the case was still pending. The re-passed version not only included R.C. 3517.13 in its entirety, but it also made several significant changes to the version of O.R.C. 3517.13 that existed before H.B. 694 was enacted.

As of this writing, a Motion is pending before the Court relating to the effectiveness of the re-passed and amended version of the law. Meanwhile, the status and enforceability of Ohio's pay-to-play laws remains unclear.

The Court Challenge

Shortly after its passage, Amended Substitute House Bill 694 was challenged on a number of grounds, including the procedures used to pass, sign and file the bill with the Secretary of State. In United Auto Workers Local Union 1112, et al. v. Jennifer L. Brunner on December 5, 2007, the Franklin County Court of Common Pleas granted a Motion for Summary Judgment based on the following facts. H.B. 694 underwent several amendments during the final days of the legislative session in December 2006 as it moved between the House and the Senate. Ultimately, both the House and Senate agreed to a final version, Amended Substitute House Bill 694, which contained several significant changes and was voted on by both chambers.

However, on December 27, 2006, the Speaker of the House and the President of the Senate signed Substitute House Bill 694 (an earlier version of the bill) and presented that to the Governor for signature. The Governor signed Substitute House Bill 694 and had it filed with the Secretary of State. Thus, Amended Substitute House Bill 694 was passed by the General Assembly, but was never signed by the Speaker of the House, President of the Senate, Governor, or Secretary of State as required by Section 15(E), Article II, of the Ohio Constitution.

Upon realizing the error, the Clerk of the House asked the Secretary of State to substitute all but the signature pages of the signed and filed Substitute H.B. 694 with the text of Amended Substitute H.B. 694. Historically, the Ohio Secretary of State has made such substitutions by replacing a page or two of a bill that might have been improperly copied or contained clerical errors. However, in this case, the Court found that substituting 33 pages of a 35 page bill could not be considered a clerical error. Because none of the statewide officers who are constitutionally required to sign the bill had signed the version that was actually passed by the entire General Assembly, the Court concluded that neither Amended Substitute House Bill 694 nor Substitute House Bill 694 could be the law of Ohio.

House Bill 119

While the United Auto Workers case was pending, the Ohio General Assembly passed several amendments to H.B. 694. In doing so, the full text of O.R.C. 3517.13 was re-passed with some amendments. Some of these amendments were very significant and some changed portions of R.C. 3517.13 that were not amended by H.B. 694. A complete list of significant changes from H.B. 119 is found elsewhere in this Resource Center.

As a result, questions have been raised as to whether procedural deficiencies in the manner in which H.B. 694 was signed and filed could be cured by re-passage of the law in H.B. 119. As of this writing, those questions are pending before the Court of Common Pleas in a Motion to Dismiss filed by the Ohio Attorney General on December 17, 2007.

Practical Guidance

Until this issue is resolved, contractors and public agencies may want to take a conservative and cautious approach. In the event the Attorney General's Motion is granted or, if the United Auto Workers case is appealed, a stay is granted, H.B. 694 will be valid and enforceable. Regardless of the eventual outcome of United Auto Workers, or the legal issues involved with the effectiveness of H.B. 694 and H.B. 119, it is fairly clear that some version of O.R.C. 3517.13 remains in effect. Thus, continued diligence regarding political contributions is warranted.