From The Vaults

A Step Backward For Democracy — Judge Black Rules Ohio’s Law To Stop Campaign Lies Is Unconstitutional

District Judge Timothy Black was appointed to his position by President Obama in 2009. Judge Black ruled that a key portion of Ohio law that outlaws deliberate lying in political campaign advertisements is unconstitutional

District Judge Timothy Black was appointed to his position by President Obama in 2009. Judge Black ruled that a key portion of Ohio law that outlaws deliberate lying in political campaign advertisements is unconstitutional

In this campaign season with negative ads in full attack mode filling our TV’s, I’ve been wondering why there have been no reported complaints to the Ohio Election Commission (See Below). An article in this morning’s Columbus Dispatch explains that on September 11, U. S. District Judge Timothy Black declared unconstitutional a key part of Ohio’s campaign law that prohibited campaign lying and provided for complaints to the OEC.  (See Judge Black’s ruling here.)

This law protected the public via an independent commission. To me, it seems that revoking this Ohio law is a step backward for our democracy and a green light to the worst possible campaign advertisements.

Judge Black was appointed by President Obama is 2009. I’m sort of amazed that judge appointed by a Democratic president would take such action and I’m amazed that the American Civil Liberty Union (ACLU) filed a brief urging him to do so.

The ACLU in its amicus brief urged Ohio Revised Code 3517.21 (10) be ruled unconstitutional. It equated the OEC with “the government” and argued, “It is not the government’s place to pass judgment on what political speech is acceptable, and certainly not in the context of criticizing a public official. Political speech cannot be so flagrantly encumbered.”

Judge Black seems lost in a hopeless fog when he approvingly quotes the Supreme Court (and Frank Underwood):

“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012) (emphasis supplied). The more modern recitation of this longstanding and fundamental principle of American law was recently articulated by Frank Underwood in House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.”

Michael Smith at his law blog takes Black to task for quoting Frank Underwood. Says Smith, “The true meaning of Underwood’s quote is probably the last thing the court wants to espouse.”

Judge Black seems hopelessly naive. Black writes, “In short, the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is.” Wouldn’t it be wonderful if the forces for truth had a lot of money so that lies and misinformation could be revealed for what they are. But our political system doesn’t work that way. Wouldn’t it be wonderful if we lived in a society where voters had easy access to truth? Black gives no clue as to what could “encourage truthful speech.”

Black writes:

Lies have no place in the political arena and serve no purpose other than to undermine the integrity of the democratic process. The problem is that, at times, there is no clear way to determine whether a political statement is a lie or the truth. What is certain, however, is that we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth — for fear that the Government might persecute those who criticize it.  … Here in Ohio, there is no reason to believe that the OEC is positioned to determine what is true and what is false when it comes to political statements. In fact, it is entirely possible that a candidate could make a truthful statement, yet the OEC would determine a few days before an election that the statement is false, penalizing the candidate for speaking the truth and chilling further truthful speech.

We know speech isn’t free and the more money one has, the more speech one has. The assertion that, “we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth,” to me seems unreasonable. We believe that there is a role for government in assuring citizens that the integrity of their food, drugs and water are maintained at an acceptable standard. Why does it make sense to think that there is not a role for government in assuring citizens that the integrity of their political processes also meet a reasonable standard?

Black has destroyed the Ohio law that gives a government agency (The OEC) some authority to check the most outrageous outright lies in political advertisements. Thanks to the ruling by Judge Black, the role for government in Ohio has been greatly diminished in assuring safety or assuring a fair playing field in our democracy. His thinking seems in the clouds and not grounded in the reality of our political world. His thinking makes no practical sense.


Judge Black Ruled Unconstitutional:  Ohio Revised Code 3517.21(B)(9)-(10):

No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign:

(9) Make a false statement concerning the voting record of a candidate or public official;

(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.

The Ohio Elections Commission

The OEC, originally established in 1974, was reformulated as a seven member body in 1995, and reestablished as an independent government agency. Membership consists of six members (three members from each major political party in Ohio), appointed by the Governor upon recommendation by the Democratic and Republican caucuses of the General Assembly. By statute, the seventh member cannot be affiliated with either major political party and is appointed by the six partisan members of the Commission.


Candidates Seeking Election To The State Board Of Education Should Tell Their Vision and Objectives For Public Education

According to the State Board of Education website, the focus of the state board is to deliver an education that will make “all students well prepared for success.” The definition of “success,” according to the state board, evidently is the acquiring of skills needed to earn a living, the skills needed for industry. What bothers me about the vision and objectives articulated by the leaders of Ohio education (see below) is that this vision / objectives for Ohio’s public education could just as easily be articulated by the ministry of education in North Korea explaining the vision / objectives for North Korean public education.

Yes, like North Korea, we want skilled and willing workers who will build our industries and make us competitive in the world. What is missing from the objectives for public education in Ohio listed by the state board is any mention of the importance of preparing children to be full participants and contributors to their democracy. This omission of any emphasis of a democratic purpose for public schooling is also evident in the Common Core.

I agree with the point of view expressed by Alan Singer in “What’s Missing From Common Core Is Education for Democracy.”

Common Core standards are supposed to “provide a consistent, clear understanding of what students are expected to learn” and be “relevant to the real world.” But “real world” expectations are defined as preparing students for “success in college and careers” and “to compete successfully in the global economy.” As best as I can ascertain, in the entire document, there is no real discussion of life in a democratic society and the role of education in promoting democratic processes and democratic values. …

Democracy is hard to build as we are witnessing around the world. It requires a sense of shared community, respect for democratic values such as minority rights, concerns for the well being of others, freedom of expression, and the right to be actively involved in the political process. It requires a sense of being part of an inclusive and diverse body politic, of citizenship.

District 3 is composed on Senate Districts 4,5 and 6

District 3 is a large territory — composed of Senate Districts 4,5 and 6

The state board website notes, “The State Board of Education was established in the Ohio Constitution in 1953 to ensure that citizens were given a voice in decisions relating to public education.”  There are nineteen members of the state board. Each serve a four year term. Eight of the members are appointed by the governor and the other eleven members each represent a geographic district composed of three senate districts. We live in District 3 and this year we are empowered to elect one member of the state board to be the voice of citizens in this district on the board.

There are four candidates seeking election to represent District 3 on the state board. The incumbent is A. J. Wagner — appointed by Governor Kasich when Jeffry Mims resigned to serve on the Dayton City Commission. The three challengers are: Charlotte McGuire, Mary M. Pritchard, and Sarah L. Roberts.

I’ve been studying their answers on two forums:

I see nothing in these two forums that deal with the issue of defining the purpose of public education in a democracy.

I am looking for a candidate to the state board who will seek to revise the mission / objectives of the state board so that it would be impossible to confuse it with the mission / objectives of the education in a totalitarian state. I am looking for a candidate who will advocate a mission for Ohio public education that focuses on building the capacity of children to be active and contributing citizens in a democracy.


The State Board of Education

Our Vision

The State Board of Education’s vision is for all Ohio students to graduate from the PK-12 education system with the knowledge, skills and behaviors necessary to successfully continue their education and/or be workforce ready and successfully participate in the global economy as productive citizens. Ultimately, all students will graduate well prepared for success.

Our Objectives

To graduate all students well prepared for success, the State Board will focus on the following objectives:

  1. Teaching 21st century knowledge and skills for real-world success;
  2. Effectively delivering support for a high quality education;
  3. Providing sufficient resources which are efficiently managed; and
  4. Developing a statewide outreach and communication strategy on board policy and the importance of education in the 21st century.

Dee Gillis Should Challenge Beagle To Debate This Question: “We Should Make Ohio’s Tax System More Progressive”

Democrat Dee Gillis is campaigning to replace Bill Beagle as senator for Ohio’s District 5. (This district covers most of Dayton and all of Preble County.)

Beagle is bragging in his TV ads that he voted with the Republican majority to reduce taxes by over $3 billion each year.

Gillis needs to respond to Beagle’s boast of reducing taxes. She needs to challenge Beagle to a debate about taxes. She should make these three points:Screen Shot 2014-10-09 at 12.04.22 PM

  1. In order to reduce taxes at the state level the Republicans cut funding to local schools and local governments. These reductions have forced local communities to increase local property and local income taxes.Screen Shot 2014-10-09 at 12.10.52 PM
  2. The across-the-board reduction in state income taxes, combined with an increase in sales tax and increases in local property taxes has changed the shape of Ohio’s tax system — making it less progressive, more flat, less fair.
  3. If the last $3 billion in cuts each year to Ohio’s income tax had been made so that the progressivity of the system was not altered, each taxpayer would have received the same amount of reduction — about $750 each year.

Gillis should answer Beagle’s boast of cutting taxes by raising the question of tax fairness and tax purpose.  If income tax revenue is reduced by $3 billion, what is the most fair way to return this money to taxpayers?

Under Beagle’s $3 billion tax reduction plan, higher incomes got thousands of dollars of tax reduction each year and lower incomes got almost no tax reduction each year. Reducing the tax obligation of each taxpayer by the same amount maintains the progressively of the system. The first graph illustrates how total taxes could be reduced by 50%, without changing the progressivity of the system. As I figure it, $3 billion equally divided among Ohio taxpayers would have amounted to about $750 each year for each taxpayer. This reduction would have resulted in thousands of Ohioans, who now pay Ohio income tax, having zero Ohio income tax obligation.

The $3 billion in tax cuts Beagle is bragging about were made by reducing all income tax brackets by the same percentage. Ohio’s income tax structure is progressive so this “across the board” tax cut makes the progressively less steep, more flat. To illustrate, in the second graph the blue line shows a progressive tax system and the green line shows a 50%  “across the board” reduction in that system. Note that the green line is less steep, more flat than the blue line. The yellow line shows an 80%  “across the board” cut to that system. The more reduction, the flatter the system becomes. Note that the yellow line, showing a whopping 80% reduction, is almost completely flat.

At one time there was wide-spread agreement that to make taxes more fair, higher incomes should be taxed at a higher rate than the rate paid by lower incomes. I think there would be wide public support for the point of view that any future changes made to Ohio’s tax structure should be changes that either maintains or improves the progressivity of Ohio’s tax structure. Gillis should raise the issue of tax fairness and should challenge Beagle to a debate on the question: “Ohio’s system of taxation should be made more progressive.”


Advice To Rob Klepinger: Make Your Passion For Democracy The Message Of Your Campaign

This is my note giving advice to Rob Klepinger, Democrat seeking election to the U. S. Congress to represent Ohio’s 10th District — Montgomery and Greene Counties. Rob is challenging the Republican incumbent, Mike Turner, congressman for the 10th (formerly the 3rd) for 12 years. Rob is 46 years old. He currently is employed as a high school chemistry teacher at a public high school. He has worked as a teacher for the last twenty years.

photo 2

Rob Klepinger, Democratic candidate seeking election to congress to represent Ohio’s 10th District

Motivation is tough to discern, but, as I study your campaign, it seems to me that what drove you to seek election to the U. S. Congress is your passion for democracy. Your banner on Facebook says “Congressman For The People,” and in your you-tube interview with David Esrati you indicate that your big motivation to seek election to congress was your frustration at the thought that the incumbent, Mike Turner, might run unopposed.

There is wide-spread concern that our democracy is failing to solve problems and failing to plan for the future. If you could communicate your passion for democracy, your concern that our democracy is failing, you could gain the attention of a lot of “persuadable” voters who believe that the dysfunction of Washington — the ineptitude, corruption and partisan posturing — is caused by the dysfunction of our democracy. Many of these “persuadables” are looking for a point of view that offers an alternative to partisan posturing.

The 10th District would make a great battleground for a pro-democracy movement. Your message should be that a person elected to the U. S. Congress has the big responsibility of providing leadership to the District that he or she represents. You should show how your experience as a teacher has given you a lot of experience in leadership and make the point that an effective teacher is an effective leader.

Importantly, to gain credibility you must show a plan for leadership that, if elected, you will implement. You could post that plan here on DaytonOS. Such a plan would show, for example, how the work of congress would be made transparent and understandable. It would show a strategy to encourage public discussion and public education about matters of civic importance. Such a plan of your intentions would make a vivid contrast to the record of Turner’s behavior.

In summary, here is my unsolicited advice: In these last few weeks, make your message the fact that you are passionate about democracy. People are attracted to passion.  Make a plan for leadership that will be compelling in its imagination and scope. Post that plan here on DaytonOS.



Representative Roland Winburn Should Demand His Opponent Disavow Negative Attack TV Ad

If Ohio law has any meaning, the Ohio Election Commission (OEC) should immediately remove the current TV attack ad that slimes Democrat Roland Winburn — representative for District 43 in the Ohio House. It claims that Winburn, “Ripped us off.” This ad is nonsense — laughable in its extreme efforts to confuse and misinform listeners — it degrades the whole political process and provokes new levels of cynicism.

Winburn’s opponent is Republican attorney Jeff Rezabek. His website says, “Jeff shares our principles.” Does Rezabek approve of this trash produced by the OHROC that slimes Winburn and completely misrepresents the facts? You’d think Rezabek would be embarrassed by the blatant dishonesty used by the ad. Winburn should build on Rezabek’s claim of “principles” and should call on Rezabek to disavow this ad.

Any adolescent running for a middle school office would be disqualified if they dared to campaign using such a low stunt as used in this TV ad. Does the public have no protection in how our public airways are used? Ohio law says that it is illegal to broadcast campaign messages that are untrue. Where is the OEC?

The ad says that Winburn, “failed to pay his own taxes on time while voting to raise our taxes by 800 million dollars.” It is laughable that in the OHROC’s effort to slime Winburn that this is the best they can do. The website referenced in the ad,, quotes from two Dayton Daily News articles.

  • About the failure to pay taxes, the DDN says, “Winburn missed by four days his July 2012 payment on a local property he owns. Winburn paid $463.18 in past due property taxes and penalties and said he is not sure why he forgot to make the payment on time.”
  • About voting to raise taxes by 800 million dollars, the DDN says, “(In 2009) Gov. Ted Strickland proposed and the Democratic-controlled House passed House Bill 318, which would delay this year’s 4.2 percent income tax cut in order to raise the money necessary to fill an $851 million hole in the state budget. A number of business groups support the plan as the best of a host of bad options for balancing the budget. Senate Republicans say the plan amounts to a harmful income tax hike.”

The ad makes four accusations all together — all purporting to prove that Winburn, “ripped us off.” In addition to the two above, it accuses Winburn of taking “an illegal tax credit,” and that he cut funding to local schools. The “illegal tax credit” charge is a rehash of an accusation made in the 2012 campaign that was thoroughly discredited. Winburn has been completely exonerated of any wrong doing. And Winburn has always supported funds for schools.

Here is the transcript of the ad:

What do we get as Roland Winburn as our state representative? Ripped Off.  Winburn took an illegal property tax credit and failed to pay his own taxes on time while voting to raise our taxes by 800 million dollars and cutting state funding to local school. Less money for education, less money in our pocketbooks. Stop letting Roland Winburn rip us off. Learn more at

It is shocking that an organization that represents Republicans already elected to the Ohio House — The Ohio House Republican Organizational Committee (OHROC) — would admit to creating and promulgating this trash TV ad. You’d think official Republicans would want to distance themselves from an ad this shameless. It will say a lot about the character of Winburn’s opponent if he refuses to disavow such immoral advertisement.

It is true that because of the Republican agenda, a lot of taxpayers are being “ripped off.”  But not by Winburn. His record shows that Winburn has opposed crazy tax changes made by the House Republicans that balanced the state budget by cutting funds to local communities and changed Ohio’s tax structure so that those taxpayers least able to pay taxes are paying at a higher rate than those taxpayers most able to pay.

Winburn has opposed these Republican “rip offs”:

  • Every new property tax levy to support local schools will cost home owners 12.5% more
  • Most homeowners over age 65 will not qualify for the “homestead exemption” for their homes.
  • Drastic cuts in state funds to schools and local governments mean that to continue service, more and more taxes will need to be approved at the local level.
  • Sales tax will increase on all items.
  • Decreases in the state income tax, for average or below average income earners, will not be nearly enough to cover these increases in taxes at the local level. The total percentage of income paid in Ohio taxes will increase for most taxpayers.

The chart below is posted at Policy Matters: