CCV may escape another money probe

Clock could run out on
2004 marriage ban complaint

by Eric Resnick

Columbus--The charge that two anti-gay campaigns illegally hid their donors might never get a hearing because the statute of limitations may run out before the state proceeds with it.

Progress Ohio filed a complaint last March that backers of the state?s 2004 marriage ban amendment and an effort to preserve a Cincinnati anti-gay measure had used a non-profit group to conceal their contributors.

Political campaigns must report their donors but non-profit charities don?t have to. Non-profits can also contribute to ballot initiatives in line with their mission--but they can?t finance entire campaigns.

Both campaigns were run by groups connected to Citizens for Community Values of suburban Cincinnati and its president Phil Burress.

Ohio Secretary of State Jennifer Brunner?s office set a timeline to hire a special counsel and report its findings by autumn over whether CCV could be investigated and punished if it has broken the law.

At press time, Assistant Secretary of State Christopher Nance had not done the work needed to hire the special counsel, according to spokesperson Patrick Gallaway.

Progress Ohio?s complaint is based on CCV Action?s tax return for the time of the campaign, filed in October 2006. The non-profit group told the Internal Revenue Service that it used ?newspaper ads, radio ads and television ads? to amend the Ohio Constitution to ban same-sex marriage in 2004.

Progress Ohio says that CCV Action acted as a campaign committee, so it should have followed Ohio campaign disclosure laws and reported its donors.

Line of similar complaints

This is the latest in a line of similar complaints against Burress and CCV, going back to 1993. Many of these have accused CCV groups of routing contributions through non-profits, which then gave the money to the campaigns in their own name.

None have resulted in any action.

Last year the Ohio Elections Commission heard a complaint by Equality Cincinnati president Gary Wright and former mayor Bobbie Sterne that Burress had done this in an unsuccessful 2004 campaign to retain the city?s anti-gay Charter Article 12.

The complaint failed to get the four of seven votes needed to take action. The commission gave it an ?administrative dismissal,? meaning they were done with it, although they did not consider its merits.

A similar complaint filed against the 2004 ban amendment campaign by Paul Fogarty of Columbus was withdrawn before the commission heard it.

Burress? 1993 campaign to pass Article 12 was also the subject of a complaint much like the present one, made by Gaybeat publisher Josh Thomas. The elections panel ended its investigation when Thomas moved out of state and lacked the money to continue.

Office got sidetracked

The current case was given to Assistant Secretary of State Nance because Brunner had worked with her husband?s law firm on Wright and Sterne?s case, so she is ethically unable to do anything with Progress Ohio?s complaint.

Initially, there was insufficient funding available for the special counsel to be hired.

Gallaway said that problem resolved itself in July when the new fiscal year began.

Instead, the office got sidetracked with other issues, including county boards of election out of compliance with the law and a review of the voting systems Ohio will use in 2008 and beyond.

?It?s still sitting in the legal department,? said Gallaway about the matter of how to handle the complaint.

?It?s definitely more on the radar screen than it was previously,? said Gallaway. ?I know this provides no excuse as to why this complaint has not moved forward, but the timing has been awkward.?

Additionally, according to Gallaway, even though money for an investigation is available, ?the lawyers are trying to figure out if this [an investigation by a special counsel] is money well spent.?

Statute of limitations

This is because the first decision of an investigator would be to determine if the statute of limitations has run out, partly because of the delays and earlier state agencies? inaction.

Election finance violations generally cannot be prosecuted after two years. The violations in question occurred over the November 2, 2004 election, meaning that two years passed on that date in 2006.

However, there are also court rulings that allow for prosecution two years after the violation was discovered. In this case, that would be two years from October 2006.

Which one applies here would probably have to be decided by the Ohio Supreme Court.

Another issue will be what, if anything the secretary of state can do if they find that CCV broke the law. The office has never handled such a complaint before.

Progress Ohio director Brian Rothenberg isn?t concerned that the Brunner?s office has done nothing. His goal was to raise the issue, not see Burress and CCV held accountable.

?My goal is to clarify the law to the level that no one can hide campaign donors again,? said Rothenberg.

Rothenberg says that Ohio election law is clear as it is written, and CCV Action violated it, as written.

?The laws are clear,? said Rothenberg, ?but lawyers obscured the law.?

Rothenberg also blames Brunner?s predecessor Ken Blackwell, who issued rulings to suit his political desires.

Blackwell, now a senior fellow at the anti-LGBT Family Research Council and the conservative Buckeye Institute, campaigned for the marriage amendment as Ohio?s top election official.

?This is about how the secretary of state views the issue of using non-profits to hide campaign contributions over the long haul,? Rothenberg said. ?If the issue is thrown aside or there is no action, Phil Burress will be able to hide donors again.?

If enough signatures have been gathered to put Burress?s ?stripper bill? on this November?s ballot, he will be running another statewide campaign to preserve it. Especially because of the brevity of the campaign, he will have opportunity to finance it as he has done with previous ones.

The likelihood that there will be any consequence over the 2004 anti-LGBT campaigns, however, is quickly diminishing.