A combination of economic discontent and disapproval of President Obama’s health care bill resulted in an electoral rout in 2010, marking a dramatic shift in partisan control. Democrats suffered a historic defeat with Republicans gaining 63 seats in the House of Representatives, five seats in the Senate and six governorships across the nation. The people had spoken.
But rather than graciously concede a tough loss in a tough election year, one ousted one-term Democratic member of the House huddled with his lawyers, looked around for someone else to blame for his defeat and decided, quite naturally, to sue.
Steve Driehaus, formerly a House Democrat from Ohio, sued the Susan B. Anthony List, a pro-life advocacy group, for defamation that he alleges torpedoed his re-election efforts. Talk about your sour grapes.
During the campaign, the Susan B. Anthony List ran a series of ads and alerts stating “Steve Driehaus voted for taxpayer funding of abortion when he cast his vote for the health care reform bill” — Obamacare.
To this day, Driehaus insists that Obamacare does not pay for abortions and that by saying that it does, the Susan B. Anthony List cost him his “job.”
Never mind that Driehaus lost by a seven-point margin — a landslide in politics. Never mind that Driehaus voted for an enormously unpopular piece of legislation like Obamacare. Never mind that he voted with his increasingly unpopular party 95% of the time.
Never mind that he was defending a Democratic seat in the predominantly Republican area of southern Ohio. Never mind that the House of Representatives just voted this month to amend Obamacare to finally ban abortion funding.
No, like a good pol, Driehaus sticks to his talking points. The case would be a laughable and amusing postscript to the historic 2010 election were its implications threatening political speech not so ominous.
Even the ACLU opposes Driehaus. Claims like Driehaus’ threaten American citizens’ right to openly question and even castigate their elected leaders for the decisions they make. Our system of government is predicated upon this fundamental right to dissent.
Unfortunately, in a remarkable legal stretch, U.S. District Judge Timothy Black, who was appointed by Obama, ruled that this dangerous suit could proceed.
If this ruling stands, it could mark the beginning of a completely new era in American campaigns. Instead of the voter making the final decisions, judges and juries will be empowered to second-guess Election Day balloting.
By refusing to throw the case out on its ear, Black will be in position to insert his own determination as to whether Driehaus would, in fact, have been re-elected. Neither judges nor jurors are equipped to make these after-the-fact determinations.
This lawsuit stabs at the very heart political speech — a fundamental right preciously guarded by the First Amendment. If he succeeds, this new threat will have a significant chilling effect on our political and social discourse.
Imagine that every time you publicly opposed a law or policy you risked being hauled into court on charges that you mischaracterized that law and defamed the people who supported it.
Imagine that every time you successfully persuaded your friends and family to vote for Candidate A instead of Candidate B, Candidate B could sue you because you cost him “his job.”
And what about remedies? Will winning plaintiffs just receive monetary payment, or could a judge like Black order him seated in the House of Representatives?
Thanks to Driehaus and Black, this once unimaginable America may be just one verdict away.
Horace Cooper is a legal commentator and a senior fellow with the Heartland Institute.
