CINCINNATI (CN) – Barring Medicaid providers from making campaign contributions in Ohio is unconstitutional, the 6th Circuit ruled, noting that the many honest providers outweigh any “attenuated concern about a relative handful of providers who do” commit fraud.
The challenge arose from nine physicians who tried to make campaign contributions to Richard Cordray’s 2010 re-election campaign for attorney general.
Cordray’s campaign refused the contributions, citing an Ohio law that prohibits contributions from Medicaid providers or individuals with an ownership interest in a Medicaid provider, citing concerns of corruption.
A federal judge in Cleveland granted summary judgment for Ohio Secretary of State Jon Husted last year.
Noting the state’s interest in “preventing corruption,” the court said it should not “second guess” the Ohio Legislature’s means of furthering that interest.”
A three-judge appellate panel concluded otherwise after studying the 2nd Circuit’s 2010 ruling in Green Party of Connecticut v. Garfield. In that case, the sister circuit upheld a political contribution ban against state contractors amid a series of scandals involving bribes and kickbacks, one of which landed the governor in prison.
While the panel recognized the importance of Husted’s claim that the law is in place to prevent corruption, it sought a demonstration that the ban of contributions was necessary and cited
The case of Medicaid providers in Ohio presents a different issue, however, according to the 6th Circuit.
“We have nothing of that sort here,” Judge Raymond Kethledge wrote for three-member panel. “When pressed to explain how [the law] furthers the state’s interest in preventing corruption, the secretary says that … Medicaid fraud is a problem in Ohio … and that, if prosecutors are permitted to accept contributions from Medicaid providers, they might choose not to prosecute contributor-providers that commit fraud. But the Secretary concedes that he has no evidence that prosecutors in Ohio, or any other state for that matter, have abused their discretion in this fashion.”
Former attorneys general also signed affidavits that each said: “decision making in the Attorney General’s office regarding Medicaid fraud would not have been influenced by my campaign committee’s receipt of campaign contributions from individual Medicaid providers or those with ownership interests in them,” according to the court.
Kethledge wrote: “The secretary’s claim that [the law] prevents corruption, therefore, is dubious at best.”
A mere 0.003 percent of Medicaid providers in Ohio were implicated in fraud in 2009, according to the state’s statistics.
“The ban is vastly more restrictive than necessary to achieve its stated goal,” Kethledge wrote.
“Legislators have some latitude in determining how to craft limits on campaign contributions, given that, as an empirical matter, courts are without a ‘scalpel to probe’ where the contours of a minimally restrictive limit might be,” he added. “But neither can we stand by while the patient is euthanized. The statute here restricts the First Amendment rights of nearly 100,000 Medicaid providers who do not commit fraud, based on an attenuated concern about a relative handful of providers who do. There is no avoiding the conclusion that the contribution ban is … unconstitutional.”