Ahead of the 2010 election, a political advocacy organization sought to post a billboard criticizing a sitting Ohio Congressman, which proclaimed: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion!”1 But the billboard was never posted — the advertising company that owned the space refused to post the billboard due to an Ohio law that prohibits parties from making certain “false statement[s]”2 in the course of a political campaign.3 Last Term, in Susan B. Anthony List v. Driehaus4 (SBA List), the Supreme Court held that the plaintiffs alleged a “sufficiently imminent injury” to confer Article III standing for their preenforcement challenge to the law.5 Though precedent supported conferring standing, the Court’s analysis that standing was proper because the organization spoke about broad issues across multiple election cycles — and thus faced threats of future enforcement — could result in recognition of standing for repeat players in political discourse without providing the same recognition for actors with an interest in a single election cycle who potentially face the same threat of enforcement.
Ohio state law prohibits parties from making certain “false statement[s]” of fact “during the course of any campaign for nomination or election to public office.”6 If a party fails to comply with the law, “any person, on personal knowledge” may file a complaint with the Ohio Elections Commission.7 The Commission reviews each complaint,8 and provides an expedited hearing for any complaint filed within sixty days of a primary or special election, or ninety days of a general election.9 If the hearing panel finds “probable cause” that a failure to comply with the law occurred, it refers the matter to the full Commission for a hearing to occur no later than ten days afterward.10 If the Commission finds that the law was violated “by clear and convincing evidence,” it “shall refer the matter to the appropriate prosecutor.”11
Susan B. Anthony List (SBA List), a “pro-life advocacy organization,” had planned to run advertisements against then-Congressman Steven Driehaus in Ohio shortly before the 2010 election.12 SBA List opposed the Patient Protection and Affordable Care Act13 as “permit[ting] taxpayer-funded abortion,” and sought to place a billboard in Congressman Driehaus’s district criticizing his vote for the Act.14 However, the planned billboard was never posted; Congressman Driehaus threatened legal action against the billboard owner, who subsequently refused to post the billboard.15 Congressman Driehaus filed a complaint against SBA List with the Ohio Elections Commission on October 4, 2010, alleging that SBA List had violated the false-statement law by claiming he had voted for “taxpayer-funded abortion.”16 At an expedited hearing, a Commission panel found probable cause that SBA List violated the false-statement law and scheduled a full-Commission hearing for ten business days later.17
Before the full-Commission hearing, SBA List filed suit in the U.S. District Court for the Southern District of Ohio seeking declaratory and injunctive relief against enforcement of the false-statement law.18 Congressman Driehaus and SBA List agreed to postpone the full-Commission hearing until after the November election.19 Congressman Driehaus lost his reelection bid and withdrew his complaint against SBA List.20 After the Commission terminated the proceeding, SBA List amended its federal complaint to claim that the false-statement law unconstitutionally “chilled” the organization’s speech.21 The district court consolidated SBA List’s suit with a similar lawsuit by the Coalition Opposed to Additional Spending and Taxes (COAST),22 an organization that sought to disseminate “factual statements and opinions related to Mr. Driehaus and his support of the federal health care reform legislation.”23 The defendants moved to dismiss the case.24
Focusing on justiciability,25 the district court dismissed the claims.26 Writing for the court, Judge Black first applied the Sixth Circuit’s three-part test for ripeness, which examines the likelihood of the alleged harm, the sufficiency of the factual record to adjudicate the claims, and the hardship to the parties if judicial relief were denied.27 He concluded that these factors weighed against a finding of ripeness for SBA List and COAST.28 Judge Black then applied the Article III standing test established by the Supreme Court,29 which requires that the plaintiff suffer an “‘injury in fact’ that is both concrete and particularized and actual or imminent,”30 that the injury be “fairly traceable”31 to the defendant’s action, and that the injury be redressable by finding for the plaintiff.32 He held that SBA List’s claim of “chilled speech” failed to satisfy the injury-in-fact requirement because SBA List “cannot demonstrate that Ohio’s statute will be imminently enforced against it.”33 The organization’s claim of injury through the “threat of a future election complaint[]” if it made similar statements in the future was also insufficient to establish an injury.34 Because the Commission had dismissed the action against SBA List with the organization’s consent, Judge Black further determined that SBA List’s claims were moot.35
The U.S. Court of Appeals for the Sixth Circuit affirmed, examining only the issue of ripeness.36 Writing for a unanimous panel, Judge Stranch37 applied the circuit’s three-factor ripeness test, looking to the likelihood of harm, factual-record development, and hardship to the parties.38 The court evaluated “the imminence of the threat of prosecution against SBA List” and the “sufficiency of SBA List’s alleged intent to disobey the challenged statute,”39 and found the rejection of the billboard — done by a private party — and the Commission’s probable-cause hearing — only a preliminary enforcement action — insufficient to create a reasonable “fear of future enforcement” necessary to establish likely harm.40 The court also found the factual record insufficiently developed because “Ohio has not applied its law to SBA List’s speech”41 and found that withholding judicial relief would not unduly harm SBA List because no complaint was then pending against the organization and “SBA List’s conduct . . . suggests that its speech has not been chilled.”42 The court applied a similar analysis to COAST’s claims and concluded that the two cases were not ripe for review.43
The Supreme Court reversed. Writing for a unanimous Court, Justice Thomas held that SBA List and COAST had “alleged a sufficiently imminent injury for the purposes of Article III.”44 The Court employed the term “standing” in its analysis instead of the ripeness doctrine used by the Sixth Circuit, reasoning that in this case, Article III standing and ripeness issues “boil down to the same question.”45 While it touched briefly on the issue of prudential ripeness, the Court determined that it “need not resolve the continuing vitality of the prudential ripeness doctrine in this case.”46 Examining the issue of Article III standing, the Court highlighted the same three requirements as the district court — an injury in fact, a sufficient causal connection between the conduct and injury, and an injury redressable by a favorable decision — but considered only the injury-in-fact requirement.47 The Court determined that a sufficient Article III injury could arise in preenforcement circumstances if the “threatened enforcement [was] sufficiently imminent” and impacted a constitutional interest,48 and found SBA List had “alleged a credible threat of enforcement.”49
The Supreme Court based its conferral of standing for SBA List on three major factors: an intent to make future similar statements, a discussion of broad issues not specific to a single legislator, and previous threats of enforcement. Because both SBA List and COAST pleaded “specific statements they intend[ed] to make in future election cycles,” the Court first found that a constitutional speech interest was sufficiently impacted.50 The Court then determined that the Ohio law arguably proscribed the intended speech because the speech “focuse[d] on the broader issue of support for the ACA, not on the voting record of a single candidate”; as long as SBA List and COAST continued to “engage in comparable electoral speech . . . , that speech will remain arguably proscribed by Ohio’s false-statement statute.”51 Further, the Court found a “substantial” threat of future enforcement against both organizations, based in part on “a history of past enforcement” in the form of the Commission proceedings.52 This threat of future enforcement was bolstered by the power for “any person”53 to file a complaint with the Commission under the Ohio law, and the fact that “Commission proceedings are not a rare occurrence”54 and are “backed by the additional threat of criminal prosecution.”55 These factors together established a “sufficient Article III injury” to confer standing for SBA List and COAST to challenge the Ohio false-statement law.56
SBA List appears to be a straightforward application of standing precedent.57 However, the rationale behind the Court’s conferral of standing — because SBA List intended to speak across multiple election cycles about broad issues, for which it had previously been reprimanded — is potentially problematic, in the unique context of elections, for actors who intend to make statements similar to SBA List except only about a single candidate or election cycle.58 A direct application of the rationale for granting SBA List standing would provide standing to similar repeat players in the political process, but would not clearly provide standing to nonrepeat election speakers.59 The Court could have adjusted the focus of its analysis slightly — toward similar prior enforcement efforts and a discussion of issues with future effects — to remain true to precedent but also to clearly provide standing for nonrepeat political speakers making statements similar to SBA List’s against the backdrop of a false-statement law.
Two of the key factors the Supreme Court relied upon in determining that SBA List had a sufficient injury in fact to confer standing — previous threats of enforcement and a discussion of broad issues not specific to a single legislator60 — are familiar to Article III standing jurisprudence.61 The Court has recognized for several decades that a prior threat of law enforcement for an action creates a sufficient threat of future enforcement to confer preenforcement standing.62 The Court has also found that criticisms focusing on a single legislator were nonjusticiable when that particular legislator had left office,63 but could be justiciable if the political criticisms surrounded broader social issues.64
Despite this application of standing precedent to SBA List’s claims, the Court failed to recognize the uniqueness of the two-year electoral cycle in establishing Article III standing.65 Within elections, actors have only a temporary interest in making a particular speech, though the consequences of that speech may endure after the election.66 Indeed, SBA List attempted to highlight this very distinctiveness of justiciability analysis within the election cycle by invoking the “capable of repetition, yet evading review” exception to the mootness doctrine; SBA List argued that because of electoral timing, any claim under the false-statement law either could not be fully litigated or would expire during the election cycle, and there was a “reasonable expectation that the same complaining party will be subject to the same action again” in another election.67 This critique highlights the need for standing for one-time electoral speakers: without clear standing to vindicate their speech rights after an election, these speakers are faced with the undesirable option of either engaging in speech that carries the threat of punishment or chilling their potentially constitutional speech.68
Two of the major factors upon which the Court relied in its standing analysis do not fit with the unique needs of adjudication within election cycles. First, the Court’s reliance on prior threats of enforcement as indicative of potential future enforcement fails to recognize that electoral actors are by nature impermanent. Each election cycle brings new actors into political discourse who may make a sizable contribution to political speech in the election cycle during which they first participate.69 These actors — sometimes interested in only a single candidate or issues relevant during a single election cycle — may disappear before the next election.70 Because these actors did not exist during prior elections, no threats of prior enforcement against them were possible.71
The impermanence of many political speakers poses a challenge for the Court’s standing analysis in the election context: when an organization engaging in political discourse does not exist across multiple election cycles, the “history of past enforcement” against an actor cannot be an indicator of the “threat of future enforcement” as the SBA List Court emphasized in finding standing.72 To sufficiently recognize single-cycle political actors in preenforcement challenges, the Court could have instead emphasized a history of past enforcement against similarly situated actors.73 This approach would not be novel to standing doctrine — in Steffel v. Thompson,74 which addressed a preenforcement challenge to a statute that limited handbilling, the Court found an “ample” threat of future enforcement based partly on “[t]he prosecution of petitioner’s handbilling companion,” a similarly situated actor to the petitioner.75 A focus on previous enforcement threats to similarly situated actors in establishing standing could more effectively recognize the revolving door of electoral actors, instead of relying on an actor’s presence in political discourse across multiple election cycles as an indicator of future enforcement.
Second, the Court emphasized a political speaker’s discussion of broad issues, which are capable of future discussion, as creating a future enforcement threat necessary for standing;76 this approach is ill suited for the election context, where advocacy efforts address both broad issues and individual candidates. The Court employed this broad-issues analysis to distinguish SBA List from Golden v. Zwickler,77 an early case applying justiciability to elections.78 In Zwickler, justiciability was lacking because the plaintiff’s “sole concern” was speech related to a specific congressman who had left office and was unlikely to run for Congress again.79 A similar challenge existed in SBA List: in June 2011, Congressman Driehaus began a two-year appointment with the Peace Corps in Swaziland, so SBA List could not convincingly claim that he “may run for Congress again” to create a future enforcement threat.80 In order to find any future enforcement threat, the Court needed to underscore that a discussion of the issues — if not the legislator — would likely reoccur in the future.
By indicating the importance of a discussion of broad issues in finding standing, the Court overlooked situations where the threat of future enforcement for an organization’s speech could create a sufficient injury, but the speech in question only addressed a single legislator.81 Zwickler recognized that such a situation addressing a legislator still in office might be sufficient to confer standing. The true problem with standing in that case was that it was “wholly conjectural that another occasion [of future enforcement] might arise” sufficient to create an injury through threat of enforcement, since the legislator driving enforcement was no longer in office.82 Instead of focusing its standing analysis on speech involving broad issues, the Court should have focused its analysis on whether the speech in question would have future effect because the topic could arise again in later elections83 and whether the parties would “continue to engage in comparable electoral speech.”84
The Court’s application of standing precedent to SBA List thus creates inconsistencies in the electoral context. This reasoning could advantage repeat players in political discourse over others who make the same statements, and thus suffer the same threat of enforcement as an injury in fact, but who are not clearly granted Article III standing under the Court’s analysis. Without clear standing to sue, these single-interest speakers may restrain their own speech in ways repeat players would not85 — a consequence the Court has suggested may be undesirable for the democratic process.86 By adjusting its standing analysis to emphasize similar prior enforcement and discussion of issues with future effects, instead of direct past enforcement and discussion of broad issues, the Court could have avoided raising questions of standing by — and potentially chilling the speech of — nonrepeat players in the electoral conversation.