BEFORE THE OHIO ELECTIONS COMMISSION NOON ISSUE 3 Brian Rothenberg, Treasurer 545 E.

Town Street Columbus,OH 43215 Complainant,

CASE NO.

_

v.
FREEDOM WORKS 400 North Capitol Street, NW, Suite 765 Washington, DC 20001 and ALLIANCE FOR AMERICA'S FUTURE Kara Ahern, Treasurer 1001 N. Fairfax Street, #100A Alexandria, VA 22314 Respondents.

AFFIDAVIT OF COMPLAINT Franklin County State of Ohio

Iss

I, BRIAN P. ROTHENBERG, on personal knowledge, as follows: 1.

having been sworn according to law, hereby state based

I am the Treasurer of the Complainant No On Issue 3, a political action committee which opposes State Ballot Issue 3 ("Issue 3") at the November 8, 2011 general election. Respondent Freedom Works is a non-profit organization, which supports the passage of Issue 3 at the November 8, 20 II general election, Respondent Alliance for America's Future is a non-profit organization, which supports the passage of Issue 3 at the November 8, 2011 general election.

2.

3.

4.

Issue 3 is a proposed amendment to the Ohio Constitution, which states: PROPOSED CONSTITUTIONAL AMENDMENT

To preserve the freedom of Ohioans to choose their health care and health care coverage Proposed by Initiative Petition To adopt Section 21 of Article I of the Constitution of the State of Ohio A majority yes vote is necessary for the amendment to pass. The proposed amendment would provide that: 1. In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system. 2. In Ohio, no law or rule shall prohibit the purchase or sale of health care or health insurance. 3. In Ohio, no law or rule shall impose a penalty or fine for the sale or purchase of health care or health insurance. The proposed amendment would not: 1. Affect laws or rules in effect as of March 19, 2010. 2. Affect which services a health care provider or hospital required to perform or provide. 3. Affect terms and conditions ofgovemment employment. 4. Affect any laws calculated to deter fraud or punish wrongdoing in the health care industry. If approved, the amendment will be effective thirty days after the election. SHALL THE AMENDMENT YES NO BE APPROVED?
IS

2

5.

Respondent Freedom Works sent an e-mail to Ohio voters on November 1,2011, which contains a false statement in violation of Ohio Revised Code, Section 3517.22(B)(2). A copy of the e-mail is attached as Exhibit "A," Respondent Alliance for America's Future mailed campaign literature to Ohio voters, which contains a false statement in violation of Ohio Revised Code, Section 3517.22(B)(2). A copy of the campaign literature is attached as Exhibit "8." R.C. 3517.22(B)(2) states, in part, as follows: 3517.22 False statements in campaign materials - issues.

6.

7.

'" * '"
(B) No person, during the course of any campaign in advocacy of or in opposition to the adoption of any ballot proposition or issue, by means of campaign material, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, a press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:

'" '" '"
(2) Post, publish, circulate, distribute, or otherwise disseminate, a false statement, either knowing the same to be false or acting with reckless disregard of whether it was false or not, that is designed to promote the adoption or defeat of any ballot proposition or issue. 8. In its e-mail, Respondent Freedom Works made the false statement, "Issue 3 would outlaw Obamacare's individual mandate." In its campaign literature, Respondent Alliance for America's Future made the false statement, "YES on Issue 3 makes the Obamacare mandate, requiring every American to purchase health insurance, illegal in our state." "Obamacare" is the name that some people use to reference the Patient Protection and Affordable Care Act ("PPACA"), a federal law, Public Law 111-148, which was signed into law by President Barack Obama on March 23, 2010. Respondents' statements are false because a state constitutional amendment, if approved by the voters, would have no effect on the PPACA. The federal law preempts the State of Ohio's Constitution and statutes. The federal law can only be affected by a ruling by a

9.

10.

11.

3

federal court, the passage of a new federal statute by the Congress, or a treaty with a foreign nation, but not by a state constitutional amendment. 12. An October 24, 2011 article published in the Springfield News-Sun quotes Attorney General Mike DeWine regarding the legal effect of Issue 3, and is attached as Exhibit "e." The articles states: However, the U,S, Supreme Court, not Ohio voters, will decide the fate of the mandate in the federal health care law, most experts say. "If the UB, Supreme Court says the Obama health care law is constitutional, Ohio, by referendum or anything else, can't override that decision," said Republican Ohio Attorney General Mike De Wine, who backs Issue 3. 13. Similarly, a recent article posted on ToledoBlade.com quotes the Attorney General regarding the legal effect oflssue 3, and is attached as Exhibit "D." The article states: But [DeWine] said he has doubts that the constitutional amendment [that would take effect if Issue 3 is approved by voters] could be applied to the federal law, should the high court ultimately decide for Mr. Obama in the multistate case. "If you have a decision of the Supreme Court of the United States that validates the Obama health-care law, I'm not sure how passage of this act [Issue 3] would roll back based on the Supremacy Clause," Mr. DeWine said. That clause in the U.S. Constitution establishes federal law as supreme in cases in which it conflicts with state or local law. 14. Such false statements are in furtherance of Respondents' efforts to influence the results of State Ballot Issue 3 at the November 8, 2011 general election and was made knowingly or with reckless disregard of the truth. ondents have

WHEREFORE, Complainant requests that the Commission find that Re violated R. C. §3517.22(B)(2) and impose appropriate sanctions.

B

Sworn to and signed before me this

4-

day of November, 201 1.

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Don't Forget: Voting YES will Implement Budget Reform s and Stop

ObamaCare
Dear Fi\e!ld of Uberty

As YOti kllov;, ne:>l1t,€ek Ohioans '."<iilgo to lhe polls to vole on
for fiscal solvency througil

~,\Q of the most Important ballot IS~;l!eS in stale history. Issue ~ IS a fight common sense public sector pension retorrns "hi 10Issue 3 ".Quitl outlaw ObamElc<He's ,nd!vluual mandate

SoUl Issues have enormous Implications III OtllO an,l najonwde and every YES vole IS crucial lo their' paSsdije [HfS EMAIL TO FfVE FRiENDS dnd ,,)mind thenlto vote YES on Issues? I> 3 next Tuesday, r-..bvember 8th

Please FORWARD

fhe consequences or iaiiul(, \#Juld be nothing snort of catastrophic for (mio's struggling ,"conom, v\Alhau! the reforms made possible by Iss\J€ 2, school dislr.cts aflo ioeal governmenls st8t€'Mde am faCing massive deticts that VAil inevitablv result I~ higher taxes far fes,dents
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massive?

Cuy~hoga County's thirty school cistncts, the average deficit pl()jected by the Oluo Department <Jf Educalion cernes to $799.00 for every Single resident of the county by 2U15 In Franklin County thal number JS $53181, and '" !-lalmlton its $668,00. The list goes on ana on
AclOSS

All told. 85 of Ohio's 88 counties are projected to face schoof district detlCi\S, but Ohlo<ln~; don't have to seWe for th" bankrupt status quo The way to balance local buogets and avoid lax mkes IS to vote il! favor ot pension ,el(>r"ll Tt1e jOUlIl(lY back to solvency and prospentv starts ""th a YES vote on Issue 2. Pieds.l FORWARD THiS EMAiL 1 0 FIVE FRIENDS Ohio's fulure depends Sincerely, Kibbe Signature Milt! KJbbe on it, a!ld remno mam to vOle Yf'S on Issues ~ &:l next fUesduy, i'-bvernber aUl

Pre"dent and CEO, Freed()rnV\brk~
ps. Issues 2 & 311ave enormous implications in Ohio a'1d natioll'Mdu, and Evely YES vote rs crucial to their passage Please FORWARD THIS EMAIL 10 FIVE FRIENDS :mc IHnl''10 them to vctu YES all issues z &:J next Tuesday, November 8th,

This email was sen! to <:l_5:?ld'!'l{::!I!@§eitr[191:_},Qf9.Ynsubscribe~ Uj)d?1E:!... yolfr· .. I.@H_iOIq(jE~SS. ~

from email updates from FreecJomWorks, or

Io ensure delivery to your inbox, please add mattbkibbe@freedornworks.org FreedomWorks 400 North Capitol Street NW Suite 765 Washington,DC 20001 relephone::1.1:J,8(3.564,Q?Z~ PriyclC)' J:'Qlj9Y Copyright (c) 2010 Freedomvvotks All riqnts

to your address book.

EX.HItSIl

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resetveit.

YES on Issue 2 makes reasonable reforms to help reduce government spending. YES on Issue 3 makes the Obamacare mandate, requiring every American to purchase health insurance, illegal in our state.

Spending Money You Don't Have Might Be Obama's Way,

But It's Not Ohio's Way.

onISSUES2&3

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Issue 3 tests health care reform law

http://www.springfieldnewssun.comlnews/el~ctionfissue-3-tests-health

...

SPRINGFIEl,D NEWS-SUN
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Issue 3 tests health care reform law
The ballot issue won't exempt Ohio from looming federal mandates.
By William Hershey Columbus Bureau
I

Updated 1:06 AM Monday, October 24, 2011

COLUMBUS- Ohio voters on Nov. 8 will get a chance to send a message about President Barack Obama's federal health care law, even if they don't have the power to exempt the state from the law's requirement that all Americans buy health insurance by 2014 or face penalties. A "yes"vote on Issue 3 would add an amendment to the Ohio Constitution's bill of rights stating that "no federal, state or local law or rule shan compel, directly or indirectly, any person, employer or health care provider to participate in a health care system." Tea Party groups, with help from the Ohio Republican Party, led efforts to gather nearly signatures from registered voters to put the issue on the ballot. In the Dayton area and across the state, the issue generates strong feelings. Chris Littleton, a Tea Party leader from West Chester Twp. who helped put the issue before voters, said the exertion of government power in the mandate was "the likes of what we've never seen before." "They can basically control everything you say or do if they can control what you have to buy," Littleton said. However, Dr. Donald Nguyen, medical director and chief of pediatric urology at the Children's Medical Center of Dayton, said that in a "civilized nation" all involved - individuals, governments and insurance companies - need to participate and take responsibility for health care. "It's a mutual obligation from all of us," said Dr. Nguyen, a co-chair of the ''Vote No on Issue 3" coalition. There's little doubt that voter approval would prevent Ohio from imposing a state mandate, as Massachusetts did when Republican Mitt Romney, now a candidate for president, was governor. However, the U.S. Supreme Court, not Ohio voters, will decide the fate of the mandate in the federal health care law, most experts say. "If the U.S. Supreme Court says the Obama health care law is constitutional, Ohio, by referendum or anything else, can't override that decision," said Republican Ohio Attorney General Mike DeWine, who backs Issue 3. Ohio, under DeWine's leadership, is amon 26 states challenging the federal law that has asked
EXHIBIT (_
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10:37 AM

Issue 3 tests health care reform law

http://www.springfieldnewssun.comlnews!

electi on/issue- 3-tests-health ...

the U.S. Supreme Court to rule in the case. The U.S. Justice Department, supporting the law, also has asked the Supreme Court to take up the dispute. If the high court takes the case, a decision could come by next June, DeWine said. That would be after voters in Ohio have sent their message. "It would be symbolic as an expression of the majority of the people in Ohio," said Richard Saphire, a University of Dayton law professor who opposes Issue 3. "It might be symbolic in the sense that some justices on the Supreme Court might be interested in knowing for federalism purposes what the people in the country think about these things." Maurice Thompson, who crafted the amendment as executive director of the Ohio-based 1851 Center for Constitutional Law, said passage of the amendment would influence the U.S. Supreme Court's consideration ofthe mandate. Also, passage of the Ohio amendment could provide a future basis for challenging the requirement, Thompson said. Saphire said, however, that the biggest impact from approval could be wording in the proposed amendment that might jeopardize future changes to workers compensation, school immunizations and other health-care related programs that have enjoyed bipartisan support. He said he agreed with an analysis by two professors from Case Western Reserve University School of Law - Jessie Hill and Maxwell Mehlman - that outlined such potential consequences. The amendment wouldn't affect state laws or rules in effect as of March 19. 2010, but could raise a "nightmare scenario" for changes after that, said Saphire. Littleton, the Tea Party leader. denied such potential effects and said opponents are "fishing for a political narrative." Meanwhile, the campaign continues almost in the shadow of the more heated and betterfinanced battle over Issue 2. That's the referendum on Senate Bill g, which changes public employee collective bargaining rules. While ads for and against Issue 2 dominate TV,both sides in the Issue 3 fight say they're counting on grass-roots, get-out-the-vote efforts to prevail. Contact this reporter at (614) 224-1608.

Find this article at:
htt p:!fwww.springfieldnewssun.com/news!electionlissue-3-tests-health-care-reform-law~1273578.html

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1114/2011 10:37 AM

Toledo Blade - State

http://www.toledoblade.comfState/20

1111 011O/Proposed-change-to-O

...

toledoatade.corn'?"
Obama's health law targeted
By nM PROVANCE BLADE COLUMBUS BUREAU CHIEF

Friday, November 04, 2011

Proposed change to Ohio Constitution debated

COLUMBUS -- Can a state use its constitution to block a federal law? Even if the u.s. Supreme Court upholds President Obama's health-care law, perhaps as early as next spring, the Ohio Constitution by that time could contain a provision prohibiting its state leaders from implementing it. In the end, Ruth Colker, distinguished professor in constitutional law at Ohio State University's Moritz College of Law, said the answer to both issues will be the same. If the nation's high court decides Congress did not step beyond its authority in enacting the law, then even a state constitution can't stand in its way. "You can't pick and choose federal statutes that you don't like," she said. "We're a union." Voters have begun casting absentee ballots in the Nov. 8 election on Issue 3, which asks them to add a 21 st right to the Ohio Constitution's Bill of Rights alongside trial by jury, freedom of speech and press, bearing arms, protections against slavery, and cruel and unusual punishment, and others. The Ohio Healthcare Freedom Amendment would prohibit a law or rule from any government that would force individuals to buy health-care coverage or employers to provide it under the threat of fines, The language doesn't specifically mention and isn't limited to the controversial federal health-care law, but its supporters have made it clear that the Jaw is their primary focus. The amendment would specifically exempt any law or rule in effect as of March 19, 2010, about the time of the health-care reform law's passage. The federal Patient Protection and Affordable Care Act, beginning in 2014, requires individuals to acquire minimum coverage either through their employers, the private insurance market, government programs such as Medicare and Medicaid, or new state-run pools through which insurers would compete for the business of lower-income families and small businesses. SUMMARY OF ISSUE 3

To add Section 21 to Article 1 of the Constitution of the State of Ohio The proposed amendment would provide that:

EXHIBIT
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Toledo Blade - State

http://www.toledoblade.comiState/20

11I1 0/1 O/Proposed-change-to-O ...

No law or rule shall compel, directly or indirectly, any person, employer, or health-care provider to participate in a health-care system. No law or rule shall prohibit the purchase or sale of health care or health insurance. No law or rule shall impose a penalty or fme for the sale or purchase of health care or health insurance. The proposed law would not: Alter laws or rules in effect as of March 19,2010. Affect which services a health-care provider or hospital is required to perform or provide. Affect terms and conditions of government employment. Affect any laws calculated to deter or punish wrongdoing in the health care industry. SOURCE: Ohio Secretary of State But Maurice Thompson, executive director of the nonprofit 1851 Center for Constitutional Law that wrote the amendment, said that Ohioans could make a separate argument that states without such a constitutional amendment could not. "Even if the Supreme Court says the commerce clause allows the legislature to pass this legislation, do individuals nevertheless have the right to be free from it?" he asked. Supporters of the amendment probably would fire the first legal shot, he said. If the amendment passes, a case could be brought to prohibit Gov. John Kasich from acting to establish Ohio's state-run insurance pool under the federal law. t1Wemay direct our efforts there first," Mr. Thompson said. "But if somebody in Ohio believes in alternative medicine, does not have health insurance, doesn't want health insurance, and wants to spend their money in a different way, they can argue that under the Ohio Constitution they should be free from mandatory participation in a health-care system." The proposed amendment was initiated last year by the conservative Tea Party soon after the federal law's passage, but it was a late infusion of manpower from the Ohio Republican Party that put it over the top for the 2011 ballot. Ohio Attorney General Mike De- Wine, a Republican, has joined with 25 other states to challenge Congress' constitutional authority to impose such a mandate on Americans under its authority to regulate interstate commerce. Federal courts have issued a series of conflicting decisions. In the appellate decision closest to home, the U.S. 6th Circuit Court of Appeals, based in Cleveland, upheld the law. The U.S. Supreme Court has been asked to hear an appeal of a separate decision by the 11th Circuit Court of Appeals in Atlanta that struck down the law.

Mr. De Wine said he believes the multistate litigation challenging the law has a good argument that

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Toledo Blade - State

http://www.toledoblade.comiState/20

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Congress overstepped its authority. He also supports Issue 3.

"If it passes, [the amendment] would prohibit Ohio from enacting on its own something similar to what
Massachusetts did," he said. "That's a very strong argument in favor of it. It also serves as a public referendum on the issue." But he said he has doubts that the constitutional amendment could be applied to the federal law, should the high court ultimately decide for Mr. Obama in the multistate case. "If you have a decision of the Supreme Court of the United States that validates the Obama health-care law, I'm not sure how passage of this act would roll that back based on the Supremacy Clause," Mr. De Wine said. That clause in the U.S. Constitution establishes federal law as supreme in cases in which it conflicts with state or local law. Assuming the Supreme Court takes the appeal, it's unlikely to make a decision before next spring or early summer, long after Ohio voters have weighed in on Issue 3. Ms. Colker said a decision on whether Ohio's Constitution would itself be constitutional could be decided by a lower court before the high court rules. "The day after that issue takes effect, a lawsuit could be brought by someone who has standing to argue that Issue 3 is unconstitutional," Ms. Colker said. "That lawsuit would proceed independently of the Supreme Court acting .... If Congress exceeded its authority, it's still not the case that the people of Ohio can pick and choose what federal statutes they will follow. 'Timing-wise, coming first, the court would assume that all federal statutes are constitutional until they are struck down," she said. Ohio's proposed amendment would not block more popular elements of the law, such as prohibiting insurers from denying coverage to those with pre-existing conditions and allowing parents to keep dependent children on their policies up to age 26. Supporters of the federal law, however, have argued that an attack on the individual and business mandates is also an attack on the law as a whole. They note that the promise of additional customers to insurance companies to help spread the risk was part of the deal to help them pay for the law's more popular provisions. Contact Jim Provance at: jprovance@theblade.com, or 614~221-0496.

Copyright 2011 The Blade. By using this service, you accept the terms of our privacy statement and our visitor agreement. Please read them. The Toledo Blade Company, 54} N. Superior St., Toledo, OH 43660, (419) 724-6000 To contact a specific department or an individual person, click here. The Toledo Times ®

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