Edmund Corsi from Ohio has strong views about politics and political candidates, and he makes them known through a website, and in other ways, in the name of the Geauga Constitutional Council. Corsi was called on to answer to the Ohio Elections Commission for failing to register a “political committee” under Ohio state law. Corsi lost there, and then in two appeals, and the Center for Competitive Politics has petitioned for writ of certiorari, challenging the basis upon which Ohio has applied its definition of a “political committee.” Ohio Rev. Code. Ann. § 3517.01(B)(8).
The CCP is primarily concerned that while Corsi did engage in express advocacy, the State did not measure the extent of it. So on the record established, it could not be said that his communications met the “primary or major purpose” standard of Ohio law. In arguing the cert-worthiness of the case, CCP contends that Ohio has departed from the limits established by Buckley v. Valeo on the authority of the state to subject activity to political committee registration and disclosure requirements. Also of interest is the question of whether this is a case of small-scale political activity that the Court would look for a reason to protect. See Massachusetts Citizens for Life v. Federal Election Commission, 479 U.S. 238 (1986); Randall v. Sorrell, 548 U.S. 230 (2006); and McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).
Ohio law sets no threshold amount for spending above which political committee status is reached. On the record of this case, therefore, it was irrelevant that the website costs and the expense of printing a voter guide was de minimus. The controlling questions were whether Corsi had acted in concert with others and engaged in express advocacy. The Commission, upheld on appeal, concluded that at least three other individuals helped him out, and this number, together with the “use of plural terms in the Council’s pamphlets,” was sufficient to make up a committee. Corsi v. Geauga Constitutional Council, 981 N.E. 2d 919, 922 (2012). Express advocacy was established through his site postings, a “mission statement” and the voter guide: the total amount expended was unclear but by all accounts modest. The centerpiece of his enterprise, the site, required $40 a month to maintain. Id. at 3.
The Commission let Corsi in his personal capacity off the regulatory hook but held that the Council should register – though Corsi had maintained that he was the Council. In Ohio, the consequence of registration is disclosure, but unaccompanied by limits on the funds he can collect to finance his activities. Corsi rejected even this claim on his activities. According to testimony before the Commission, Corsi would not yield, he said, because to “fill out the forms necessary … regarding the money he takes in and the money he spends,” as the Board advised him to do, “was a violation of his constitutional rights.” Transcript, Geauga County Board of Elections v. Corsi, Case No. 2010-75 (2011).
The record does not indicate that Corsi was anxious about exposing to public view the identities of his backers or the specifics of his spending. The mere fact of the government demand, the expectation of registration, was the offense he perceived to his “constitutional rights.” But even if it is assumed that he had operational reasons for resisting disclosure, how much the courts might care could depend in part – perhaps in significant part – on this question of scale. The Court has been attentive to this issue of size, of “smallness,” even if far from doctrinally precise about its application. It favors strongly the decision made to protect Mrs. McIntyre’s leafleting from disclosure requirements that might apply in “other, larger circumstances,” McIntyre at 358 (Ginsburg, J, concurring); to relieve Massachusetts Citizens for Life of similar requirements because they are “administrative costs that many small entities may be unable to bear,” Massachusetts Citizens for Life at 254; or to invalidate Vermont law impediments to campaign volunteer expenses for coffee and donuts for “a few dozen” neighbors, or gas for their own car travel “four or five round trips across the state.” Randall at 260.
The Ohio Court of Appeals noted Corsi’s emphasis on his status, or his Council’s, as “a small entity.” Corsi at 924, 925. It found nonetheless that the law compelled registration “even when imposed on a small PAC,” Id. at 927: as noted, the Ohio political committee definition applies on a showing of the requisite “major or primary purpose” without regard to the amount spent to advance it. “[We] cannot say,” the appellate court concluded, “that the absence of a monetary trigger for PAC designation is wholly without rationally [sic] in this context.” Id. at 929.
The worry about regulatory overkill might be heightened in this instance by the Mr. Corsi’s blogging, which made up the lion’s share of the evidence of “express advocacy.” His various postings clearly reflected a wish to influence voter choice: we are not speaking here of express’ advocacy’s “functional equivalent.” They were postings all the same, and the Commission did not deny that, irrespective of who wrote the copy, they represented his personal opinion, or that he controlled the site’s content, or that those active with him in the grandly named “Council” numbered maybe three in total.
Of course, the case may well end with the last decision in Ohio, if the Supreme Court declines to take it up, or the Court may grant the CCP petition on a very different framing of the issue. But if the Justices hear Mr. Corsi’s challenge, they may be hearing a loud echo of Mrs. McIntrye case, first brought almost 25 years ago before the same Ohio Elections Commission.