When former Rep. Steven Driehaus lost his seat in Ohio’s 1st Congressional District, he prepared more than a concession speech. He prepared a lawsuit. Driehaus blames his defeat on what he says were misrepresentations by the Susan B. Anthony List, a group that supports pro-life candidates for Congress.

The group targeted members who gave Obama the slim victory that passed the healthcare law — now opposed in court by a majority of states. The group maintained that a vote for the law was a pro-choose vote since the law did not include language sought by pro-life advocates.
Driehaus insists that the campaign against amount to lies and he has thus far avoided dismissal before U.S. District Court judge Timothy S. Black, an Obama appointee.

Critics have charged that Black should have recused himself because he was the former president and director of the Planned Parenthood Association of Cincinnati.

A defamation action would seem hard to maintain with the protection of opinion plus the higher standard for public officials and figures under New York Times v. Sullivan — requiring knowing falsehood or a reckless disregard of the truth. There is also the tenuous link between the loss of the election and this one issue, not to mention this one campaign on that issue.

As the filing below indicates, Driehaus previously sued to stop the use of billboards and other campaigning on the issue — a strategy that probably produced more visibility for the campaign. Here is the filing: Anthony-Reply2-10-27-10

Notably, in the prior litigation, Driehaus argued that there were a variety of false statements made by the organization:

In his now two pending OEC complaints (R.E 7-2 and 7-3), Congressman Driehaus alleges that SBA List made the following false statements:
• “Driehaus voted FOR taxpayer-funded abortion.” (R.E. 7-4, Copy of Plaintiff’s billboard-ready ad, which Plaintiff pre-released to the public and the media on or about September 28, 2010 (see R.E. 7-5));
• “[Driehaus] voted for a health care bill that includes taxpayer-funded abortion ….” (R.E. 7-6, Copy of Plaintiff’s August 2010 press release regarding its “Votes Have Consequences” project and bus tour);
• “It is a fact that that Steve Driehaus has voted for a bill that includes taxpayer funding of abortion.” (R.E. 7-7, Statement issued by Plaintiff on October 7, 2010 concerning Congressman Driehaus’s OEC Complaint);
•“Rep. Driehaus ordered Lamar Companies not to put up the billboards until the matter was settled by the Ohio Elections Commission ….” (Id.)
Congressman Driehaus’s OEC complaints allege that SBA List made the foregoing false statements to promote his defeat and his opponent’s victory.

At an October 14, 2010 preliminary hearing, the OEC determined that probable cause existed that SBA List’s statements indeed violated O.R.C. §§ 3517.21(B)(9) and (10), and set the matter for a full review. R.E. 7-11 (Probable Cause Determination, Driehaus v. SBA List, Case Nos. 2010E-084, 2010E-096).

Yet, courts are highly reluctant to get into political campaigns and rhetoric. In New York Times v. Sullivan,” the Court emphasized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” To that end, the burden will be heavier for Driehaus.