BEFORE THE OHIO ELECTIONS COMMISSION

In the Matter of:
University of Dayton
300 College Park
Dayton, Ohio 45469,
Richard Cordray
PO Box 7910
Columbus, Ohio 43207,
Richard Michael DeWine
2587 Conley Road
Centerville, Ohio 45314,

VERIFIED COMPLAINT

Filed by:
Libertarian Party of Ohio
P.O. Box 29193
Columbus, Ohio 43229
Cordray/Sutton for Ohio
PO Box 7910
Columbus, Ohio 43207,
and
DeWine/Husted for Ohio
2587 Conley Road
Centerville, Ohio 45314,
Defendants.

 EXECUTIVE SUMMARY
The University of Dayton is a registered 501(c)(3) non-profit corporation. Operating in
partnership with the gubernatorial campaigns of Richard Cordray and Richard Michael ("Mike")
DeWine, the University of Dayton planned, sponsored and hosted a gubernatorial debate
between Cordray and DeWine on September 19, 2018. The debate was held on the University of
Dayton campus. As explained in detail below, this exclusive debate, planned, sponsored and
staged by the University of Dayton after being solicited and being aided and abetted by the
Cordray and DeWine Campaigns, was a corporate contribution by the University of Dayton to
both the Cordray and DeWine campaigns. As such, it was illegal and potentially criminal under
Ohio Revised Code § 3599.03 (banning corporate contributions to campaigns). See O.R.C. §
3599.40 (stating that violations of Title 35 are first-degree misdemeanors).
Unfortunately, it does not end there. The Cordray and DeWine Campaigns have planned
two additional debates: one scheduled for October 1, 2018 at Marietta College and the next on
October 8, 2018 at Cleveland State University. Only Richard Cordray and Mike DeWine were
invited to participate in these debates. As was true of the Dayton debate, no pre-existing
objective criteria for selecting participants were announced for either of these two subsequent
debates. Instead, it is clear that the Cleveland debate sponsors, which included the Ohio Debates
Commission and City Club of Cleveland, did not employ any criteria beyond the fact that
Richard Cordray and Mike DeWine would be the only participants. The reason no permissible
pre-existing objective criteria were used is because the Cordray and DeWine Campaigns insisted
that their debates be exclusive.
Cordray, DeWine and the University of Dayton's Exclusive Debate
Richard Cordray is the Democratic candidate for Governor of Ohio. Mike DeWine is the
Republican candidate for Governor of Ohio. Both, individually and through their campaigns, are
subject to Ohio's restrictions on campaign contributions, expenditures, and reporting. Both
Cordray individually and through his campaign, and DeWine individually and through his
campaign, solicited, aided and abetted the University of Dayton's planning and staging of the
gubernatorial debate between Cordray and DeWine on September 19, 2018 on the University of
Dayton campus.
The election campaigns for Cordray and DeWine approached the University of Dayton
and asked it to stage their debate. Why they solicited the University of Dayton is not clear, but
Jon Husted, DeWine's running mate, is a graduate of the University of Dayton. Following
discussions, the University of Dayton agreed to host a debate between Cordray and DeWine as
the first of three debates between Cordray and DeWine in the State of Ohio. The other two
debates, which were contemporaneously planned with the Dayton debate and announced on the
same day as the Dayton debate, are scheduled for October 1, 2018 at Marietta College and
October 8, 2018 at Cleveland State University.
The University of Dayton's debate was held on September 19, 2018, as planned, on the
University of Dayton's campus. No other qualified gubernatorial candidate was made aware of
the antecedent discussions between the University of Dayton and the Cordray and DeWine
i

 campaigns. No other qualified gubernatorial candidate was invited to participate in the Dayton
debate (or any other debate) by either the Cordray Campaign, the DeWine Campaign, or the
University of Dayton. No pre-existing objective criteria -- other than the participants being
Richard Cordray and Mike DeWine -- were published, documented, or in any way made
available to the public, the press, the two minor political parties, or the two minor political
parties' qualified gubernatorial candidates. No one outside the University of Dayton, the Cordray
Campaign, and the DeWine Campaign was advised of what pre-existing objective criteria the
Dayton debate and the two debates at Marietta College and Cleveland State University,
respectively, were going to employ.
The two subsequent debates scheduled for October 1, 2018 at Marietta College and
October 8, 2018 at Cleveland State University were also announced on September 6, 2018 as
exclusive debates -- only Richard Cordray and Mike DeWine would participate. As was true of
the Dayton debate, no pre-existing objective criteria for selecting participants were announced at
that time (or later) for either of these two subsequent debates. Instead, it has been made clear by
the Cleveland debate sponsors, the City Club of Cleveland and its so-called "Ohio Debates
Commission," that no one other than Cordray and DeWine would even be considered for its
debate. The Cleveland debate sponsors have not only informed counsel for the Libertarian Party
of Ohio of this fact, they have also published that they will only allow candidates of the two
major parties to participate.
As was true of the debate planned with the University of Dayton, the Cordray and
DeWine Campaigns approached the City Club of Cleveland and the Ohio Debates Commission
and requested that they stage and sponsor an exclusive debate in Cleveland. The City Club of
Cleveland, a registered 501(c)(3) non-profit corporation, readily agreed -- both to sponsor the
debate and to limit the debates participants to Cordray and DeWine. The City Club of Cleveland
is the architect of the Ohio Debates Commission, a self-described "group of civic and media
organizations and universities" that in 2018 joined together to sponsor debates in Ohio. See Ohio
Debates Commission, https://ohiodebatecommission.org/faq/ (last visited September 18, 2018).
"The Commission," its web pages states, "aims to oversee political debates for the highest offices
in Ohio to ensure their quality and fairness." Id.
The City Club of Cleveland's Ohio Debates' Commission was specifically created to
stage exclusive debates between the two major parties' candidates. Its mission, according to its
web page, is to "invite[] the candidates of major political parties to participate in debates." This
mission, the Commission explains, properly applies Ohio's statutory definition of "major
political party," meaning that the party must have won at least 20% of the gubernatorial vote in
"the most recent regular state election." See id. By definition, any newly qualified political
party, like the Libertarian Party of Ohio, cannot meet this standard.
The Cordray and DeWine Campaigns' common objective, meanwhile, was to stage
debates between only themselves. Including any other candidates was never an option. They
never considered it. The staging organizations for the three debates, that is, the University of
Dayton (September 19, 2018 debate), the City Club of Cleveland (October 8, 2018 debate) , and
Marietta College (October 1, 2018 debate), understood this limitation and accordingly planned
exclusive debates between Cordray and DeWine.
ii

 It was against this backdrop that the Cordray Campaign, the DeWine Campaign, and the
University of Dayton planned the September 19, 2018 exclusive debate on the University of
Dayton's campus. The Cordray and DeWine Campaigns insisted upon exclusive debates. The
Cleveland debate's restriction allowing only Cordray and DeWine to debate had previously been
publicly stated. The University of Dayton would follow suit. The debate was announced by the
Campaigns on September 6, 2018, along with the announcement of the other two debates, and by
the University of Dayton on September 7, 2018. No mention was made in any of these
announcements or in any news stories that either the Dayton debate, the Cleveland debate, or the
Marietta debate had selected participants using any form of pre-existing objective criteria.
Instead, all of the announcements stated that Cordray and DeWine would engage in an exclusive
debate.
As a result of the agreement between the University of Dayton, the Cordray Campaign,
and the DeWine Campaign, two of the four qualified political-party-candidates for Governor in
Ohio, Travis Irvine, the Libertarian Party of Ohio candidate, and Constance Gadell-Newton, the
Green Party candidate, were categorically excluded from participating. Neither the Libertarian
Party of Ohio, the Green Party, Travis Irvine nor Constance Gadell-Newton (nor anyone in their
campaigns or anyone anywhere outside the Cordray and DeWine Campaigns and the staging
organizations) knew anything about the three debates until they were announced. Neither Irvine
nor Gadell-Netwon was invited to participate in any of the three debates. Neither Irvine nor
Gadell-Newton had any prior knowledge that the three debates were being planned. No one
before or after the announcement of the debate knew what qualifying criteria were being used to
select the participants -- other than the criteria contained on the Ohio Debates Commission web
page and news reports that accompanied the announcements. And all of those news reports, the
Ohio Debates Commission's web page, and the announcements themselves made clear that the
debates would be restricted to the two major-party candidates -- Cordray and DeWine.
After reaching its agreement with the Cordray and DeWine Campaigns to hold an
exclusive debate between Cordray and DeWine on September 19, 2018, the University of
Dayton contacted Cox Media Group Ohio to secure its agreement to broadcast the debate. Cox
Media Group Ohio agreed. Cox Media Group Ohio, including its local broadcast affiliates
(Dayton Daily News, WHIO-TV and WHIO-Radio), is a for-profit media corporation registered
to do business in Ohio. Its local broadcast affiliates are also a "participating organizations" in the
Ohio Debates Commission.
The University of Dayton on September 12, 2018, five days after announcing its
gubernatorial debate, released a post-hoc explanation for why its debate did not violate Ohio law;
it had, it belatedly claimed, used a 10% polling requirement to select the participants. This was
explained in both a Dayton Daily News article released on September 12, 2018 and in a letter
sent that same day to attorneys representing the Cox Media Group Ohio. Cox Media Group
Ohio had become concerned about the legality of the Dayton debate following a demand letter
sent by the Libertarian Party of Ohio (both electronically and by certified mail) on September 11,
2018 to the University of Dayton, the Cordray Campaign, and the DeWine Campaign. In that
letter, the Libertarian Party of Ohio's attorneys explained to the University of Dayton and to the
two Campaigns that pre-existing, objective criteria -- like polling (which was expressly
iii

 mentioned in the demand letters) -- were absolutely necessary (though not always sufficient) in
order for the debates to comply with Ohio law (as well as federal tax laws).
Notwithstanding repeated requests by the Libertarian Party of Ohio, neither the
University of Dayton, Cox Media Group Ohio, the Cordray Campaign, nor the DeWine
Campaign has produced any contemporaneous documentation establishing that the Dayton
debate employed a polling formula of any sort to select its participants. Indeed, they have failed
to produce even post-hoc documentation that they employed a polling formula (or anything else)
to select the Dayton debate's participants. The University of Dayton's and Cox Media Group's
responses have been nothing more than "trust us." The Cordray and DeWine Campaigns,
meanwhile, have remained mute.
If the University of Dayton had used a polling formula, or any other pre-existing
objective criteria, it would be a simple matter to prove. The Libertarian Party of Ohio has
repeatedly asked that someone -- the University of Dayton, Cox Media Group Ohio, the DeWine
Campaign, the Cordray Campaing -- produce a document, e-mail, text message or anything else
showing that some kind of pre-existing criteria were used. Nothing has been produced.
Notwithstanding its inability and/or refusal to produce contemporaneous documentation
showing that the University of Dayton employed a 10% polling formula, Cox Media Group Ohio
has plausibly explained to the Libertarian Party of Ohio that its local media affiliates were
invited to broadcast the Dayton debate after the debate had already been planned. The University
of Dayton, counsel for Cox Media Group Ohio explained to the Libertarian Party of Ohio's
attorney, in its September 12, 2018 letter assuaged Cox Media Group Ohio's concern about the
legality of the debate by assuring Cox Media Group Ohio that Dayton had used a 10% polling
formula beforehand. Armed with this assurance, Cox Media Group Ohio chose to go forward
with the debate.
Because Cox Media Group Ohio's argument is plausible -- it may have been led to
believe that the Dayton debate was properly planned -- the Libertarian Party of Ohio does not
include it in this Complaint. The same is not true, however, of the principal staging
organization, the University of Dayton, and the two Campaigns that approached it to stage their
exclusive debate. The University of Dayton and the two Campaigns knew and know what
criteria they employed. They knew and know what criteria they used prior to the debate's
announcement on September 6, 2018. If they had employed a 10% polling formula they would
have contemporaneous documentation -- dated prior to the debate's announcement -- supporting
their defense. They have refused and failed to produce anything establishing that they employed
pre-existing objective criteria.
Post-hoc rationalizations about having used pre-existing objective criteria are insufficient
to excuse debate staging organizations from complying with campaign finance restrictions. See
See La Botz v. Federal Election Commission, 889 F. Supp.2d 51 (D.D.C. 2012). Criteria must be
(1) pre-existing, and (2) objective. In order to satisfy both requirements, the criteria must be
supported by contemporaneous documentation. Ordinarily this documentation is found in written
policies and rules governing debates. Even if these rules and policies are not reduced to writing,
there should exist some kind of memorial documenting what has been agreed to and who will be
iv

 invited. In the event, both federal law and Ohio law place the burden on staging organizations to
demonstrate they have properly staged debates. Staging organizations must prove that they have
employed pre-existing, objective criteria. "Trust me" has never been recognized as an excuse or
defense.
Ohio's Ban on Corporate Contributions
Ohio's campaign finance laws prohibit corporations, including non-profits, from making
contributions to candidates. This ban includes in-kind contributions and "anything of value."
"Corporations, whether for-profit or nonprofit, are prohibited from giving money, items,
personnel, space or anything of value to: … candidates." OHIO SECRETARY OF STATE, OHIO
CAMPAIGN FINANCE HANDBOOK, CHAPTER 9: BUSINESSES AND LABOR ORGANIZATIONS at 9-3
(2018) (emphasis added).1 See also O.R.C. § 3599.03(A)(1) ("no corporation, no nonprofit
corporation, and no labor organization, directly or indirectly, shall pay or use, or offer, advise,
consent, or agree to pay or use, the corporation's money or property, or the labor organization's
money, including dues, initiation fees, or other assessments paid by members, or property, for or
in aid of or opposition to a political party, [or]a candidate for election or nomination to public
office"); O.R.C. § 3517.082.
Staging and/or holding a candidates' debate has been ruled time and time again to
constitute a campaign contribution within the meaning of federal law. See La Botz v. Federal
Election Commission, 889 F. Supp.2d 51 (D.D.C. 2012). It is likewise a campaign contribution
under Ohio law, which was designed to mirror the federal model. See Toledo Area AFL-CIO
Council v. Pizza, 898 F. Supp. 554, 560 (N.D. Ohio 1995) ("The Ohio statute … is modeled after
a provision of the Federal Election Campaign Act of 1971 ('FECA') requiring both corporations
and labor unions to use separate segregated funds to finance independent expenditures made in
federal election campaigns.") (emphasis original),
Although Ohio has no stated exception allowing corporate entities to sponsor debates,
federal campaign finance law allows an exception for non-profit corporations and media
organizations to stage and hold candidates' debates under limited circumstances. Assuming that
Ohio's ban on corporate contributions mirrors this federal model, see Toledo Area AFL-CIO
Council v. Pizza, 898 F. Supp. 554, 560 (N.D. Ohio 1995), the University of Dayton's debate still
constitutes impermissible corporate contributions to the Cordray and DeWine Campaigns.2
Under federal law, corporate moneys and expenditures may only be used to defray the
costs of conducting candidate debates where those debates meet the criteria found in 11 C.F.R. §
110.13. First, debate staging organizations must either be nonprofit corporations that “do not
endorse, support, or oppose political candidates or political parties,” or broadcasters that are “not
owned or controlled by a political party, political committee or candidate.” 11 C.F.R. §
1

https://www.sos.state.oh.us/globalassets/candidates/cfguide/chapters/chapter9.pdf).

2

If Ohio law does not mirror the federal model, then the University of Dayton's debate was
illegal without the need for further analysis. Its staging and holding the debate constitutes a
corporate contribution that without exceptions simply violates Ohio's ban.
v

 110.13(a). Next, debates must not be structured “to promote or advance one candidate over
another.” 11 C.F.R. § 110.13(b). Third, and most importantly here, debate staging organizations
(like the University of Dayton) are required to use “pre-established objective criteria to
determine which candidates may participate in the debate ….” 11 C.F.R. § 110.13(c) (emphasis
added). In particular, the FEC’s regulations state that “[f]or general election debates, staging
organizations(s) shall not use nomination by a particular political party as the sole objective
criterion to determine whether to include a candidate in a debate.” Id. (emphasis added).
Interpreting this third requirement, federal courts have ruled that “[s]taging organizations
must be able to show that their objective criteria were used to pick the participants, and that the
criteria were not designed to result in the selection of certain pre-chosen participants.” Buchanan
v. Federal Election Commission, 112 F. Supp.2d 58, 74 (D.D.C. 2000) (quoting FEC statement)
(emphasis added). In order to come within the protection of this exception, the burden is on the
debate staging organizations to show that they employed pre-existing objective criteria and
actually used them to select the participating candidates.
Ohio law also places the burden of proof on those claiming the benefit of statutory
exemptions or exceptions. See 42 OHIO JUR.3D EVIDENCE AND WITNESSES § 98 (2018)
("The burden is on the party who asserts that he or she is within an exception or an exemption in
a … statute to prove all the facts necessary to bring himself or herself within the exception or
exemption.") (footnotes omitted).
Nor may staging organizations develop criteria that minor-party candidates cannot
reasonably meet. The court in Buchanan v. Federal Election Commission, 112 F. Supp. 2d at 74,
stated that “these statements by the regulation's drafters strongly suggest that the objectivity
requirement precludes debate sponsors from selecting a level of support so high that only the
Democratic and Republican nominees could reasonably achieve it.” Standards that are
impossible for non-major-party candidates to meet, meanwhile, are absolutely forbidden. See La
Botz v. Federal Election Commission, 889 F. Supp.2d 51 (D.D.C. 2012).
In the La Botz case, the federal district court in Washington, D.C., ruled that the Ohio
News Organization's3 -- the precursor to the Ohio Debates Commission -- practice of selecting
only the two major parties' candidates for debates was likely illegal under federal law. It
accordingly remanded the matter to the Federal Election Commission for further analysis: "The
3

The Ohio News Organization was a consortium of the eight largest newspapers in Ohio (that
is, the Toledo Blade, the (Canton) Repository, the (Cleveland) Plain Dealer, the Columbus
Dispatch, the Cincinnati Enquirer, the Dayton Daily News, the Akron Beacon Journal, and the
(Youngstown) Vindicator). See La Botz, 889 F. Supp. 2d 55. This consortium staged debates
between state-wide candidates in Ohio and used as its criteria major-party status (like the Ohio
Debates Commission does now). As a result of the La Botz case, the Ohio News Organization
changed its policy of selecting only the two major parties' candidates for debates and adopted an
objective formula including polling. The Ohio News Organization then disbanded, only to be
replaced by the new Ohio Debates Commission, which has as participating organizations all of
these newspapers except for the Repository. See Ohio Debates Commission,
https://ohiodebatecommission.org/faq/ (last visited September 18, 2018).
vi

 Ohio News Organization generally follows the structure used by the Commission on Presidential
Debates, which allows for only the major-party candidates to debate. As set forth above, FEC
regulations forbid major party nomination to be the sole criterion employed to select debate
participants." Id. at 62 (emphasis added).
The La Botz court also rejected the Ohio News Organization's belated and unsupported
claim that it had employed pre-existing objective criteria other than simply selecting the two
major-party candidates. No pre-existing documentation supported the defense. All the Ohio
News Organization offered was an affidavit submitted by Benjamin Marrison, the editor for the
Columbus Dispatch, claiming that pre-existing objective criteria were used. This affidavit was
dismissed by the federal court: "this affidavit was only submitted after the FEC inquiry had
commenced. And such affidavits raise the risk that they will merely provide a vehicle for a
party's post hoc rationalizations. This sole affidavit highlights the absence of any
contemporaneous evidence suggesting that ONO employed pre-established selection criteria."
Id. at 62 (emphasis added).
For these same reasons, the University of Dayton's debate violates Ohio's ban on
corporate contributions. The only pre-existing documentation describing the criteria used to
select participants in any debate in Ohio is found on the Ohio Debates Commission's web page.
The standard stated there is "only the major parties." Although the University of Dayton is not
listed as a "participating organization," its broadcast partner, Cox Media Group Ohio, is a
"participating organization." The University of Dayton, the Cordray Campaign, and the DeWine
Campaign simply followed the Ohio Debates Commission's standards. The Ohio Debates
Commission, after all, was at that very same time planning a gubernatorial debate in Cleveland
with the Cordray and DeWine Campaigns. It was understood by the City Club of Cleveland, the
Cordray Campaign and the DeWine Campaign that the Ohio Debates Commission standard
would govern all of their debates, including the one at the University of Dayton.
The Ohio Administrative Code provides that violations of O.R.C. § 3599.03(A) are
subject to fines levied by the Ohio Elections Commission and ranging from 100 to 5000 dollars.
See O.A.C. § 3517-1-14(B)(3). These fines are to be assessed separately against the corporation,
the candidate's campaign committee, the campaign's treasurer and the candidate. See O.A.C. §
3517-1-14(B)(6). Violations of O.R.C. § 3599.03(A) are first-degree misdemeanors. The Ohio
Elections Committee is also empowered to refer potential violations of O.R.C. § 3599.03(A) to
the appropriate prosecutor, which in this instance is the prosecuting attorney of Franklin County.
See O.A.C. § 3517-1-14(C)(2)(a).

vii

 COMPLAINT
1.

The Ohio Debate Commission is "a collaboration of civic organizations, media

organizations, and universities" that stages debates in Ohio. See Ohio Debate Commission,
https://ohiodebatecommission.org/ (last visited September 15, 2018).
2.

The Ohio Debate Commission is "a project of the City Club of Cleveland. It was initially

funded through a seed grant from the George Gund Foundation, and in-kind contributions from
the City Club of Cleveland, the Columbus Foundation and the Columbus Metropolitan Club." Id.
3.

The City Club of Cleveland is a non-profit corporation registered with the State of Ohio.

4.

The University of Dayton is a non-profit educational institution located in Dayton, Ohio

and a registered corporation with the State of Ohio.
5.

Richard Cordray is the Democratic candidate for Governor of Ohio, and his election

campaign is known as Cordray/Sutton for Ohio.
6.

Richard Michael ("Mike") DeWine is the Republican candidate for Governor of Ohio and

his election campaign is known as DeWine/Husted for Ohio.
7.

Jon Husted is Mike DeWine's running mate and is a graduate of the University of

Dayton.
8.

The "Participating Organizations" that have joined the Ohio Debate Commission,

according to its web page, include several non-profit corporations, including the City Club of
Cleveland, and several for-profit corporations, including Cox Media Group Ohio through its
agents, the Dayton Daily News, WHIO-TV and WHIO-Radio.
12.

The Libertarian Party of Ohio (LPO) is a fully qualified political party under the laws of

the State of Ohio whose gubernatorial candidate is Travis Irvine.

1

 15.

The election campaigns for Richard Cordray and Mike DeWine approached the

University of Dayton sometime before September 6, 2018 and asked it to stage an exclusive
debate between Cordray and DeWine.
16.

The University of Dayton agreed to host the debate between Cordray and DeWine and

agreed to hold it on the University of Dayton's campus on September 19, 2018.
17.

No other qualified gubernatorial candidate was made aware of the discussions between

the University of Dayton and the Cordray and DeWine campaigns.
18.

No other qualified gubernatorial candidate was invited to participate in the debate by

either the Cordray Campaign, the DeWine Campaign, or the University of Dayton.
19.

No pre-existing objective criteria were published, documented, or in any way made

available to the public, the press, or the remaining qualified gubernatorial candidates.
20.

No person or entity outside the University of Dayton, Cordray Campaign, and DeWine

Campaign were advised of any pre-existing objective criteria for selection of the participants to
be invited to the Dayton debate.
21.

On September 6, 2018, the Cordray and DeWine Campaigns announced that they had

agreed to participate in a series of three gubernatorial debates in Ohio, the first being the debate
to be held at the University of Dayton on September 19, 2018. See Jessie Balmert, Ohio's
governor race: Cordray, DeWine set 3 debates across state, Sept. 7, 2018, CINCINNATI ENQUIRER,
https://www.cincinnati.com/story/news/politics/elections/2018/09/07/ohio-governors-racecordray-dewine-set-3-debates-across-state/1221354002/ (last visited September 15, 2018).
22.

On September 7, 2018, UD News, the University of Dayton's official press agency,

reported:
The University of Dayton will sponsor and host and Cox Media Group Ohio will present
the first gubernatorial debate between Republican nominee Mike DeWine and
2

 Democratic nominee Richard Cordray at 7 p.m. Wednesday, Sept. 19, at Daniel J. Curran
Place on the University of Dayton River Campus.
…
The nearly 1-hour debate will be available to air on TV and radio stations statewide and
Cox Media Group Ohio online and social media platforms, http://www.whiotv.com,
http://www.daytondailynews.com and Facebook live on the Dayton Daily News, WHIOTV and WHIO Radio Facebook pages.
…
This will be the first of three debates between the candidates. They will debate again Oct.
1 at Marietta College and Oct. 8 at Cleveland State University.
UD NEWS, UD to Host First Gubernatorial Debate, Sept. 7, 2018
(https://udayton.edu/news/articles/2018/09/gubernatorial_debate.php) (last visited September 18,
2018).
23.

The Cordray and DeWine campaigns solicited the City Club of Cleveland and the Ohio

Debates Commission to hold an exclusive debate in Cleveland on October 8, 2018.
24.

The City Club of Cleveland, a registered 501(c)(3) non-profit corporation, agreed both to

sponsor the debate and to limit participation to Cordray and DeWine.
25.

The City Club of Cleveland was the architect of the Ohio Debates Commission, a self-

described "group of civic and media organizations and universities" that in 2018 joined together
to

sponsor

debates

in

Ohio.

See

Ohio

Debates

Commission,

https://ohiodebatecommission.org/faq/ (last visited September 18, 2018).
26.

"The Commission," its web pages states, "aims to oversee political debates for the highest

offices in Ohio to ensure their quality and fairness." Id.
27.

Not only was the Commission organized to promote debates, it was specifically created

to stage exclusive debates between the two major parties' candidates, limiting participation to
"candidates of major political parties to participate in debates."

3

 30.

The Cordray and DeWine Campaigns' common objective, pursued with the University of

Dayton, the Ohio Debates Commission, and Marietta College, was to arrange exclusive debates
between only Cordray and DeWine.
31.

No mention was made before September 12, 2018 in any press release announcing or

discussing these three debates that pre-existing objective criteria were to used to select any of the
participants in any of the three debates.
32.

The LPO on September 11, 2018 sent demand letters via certified United States mail and

e-mail to the University of Dayton, see Exhibit 1, the Cordray Campaign, see Exhibit 2, and the
DeWine Campaign, see Exhibit 3, explaining that the planned Dayton debate excluded the
Libertarian Party of Ohio gubernatorial candidate and was in violation of Ohio law.
33.

On September 12, 2018, it was reported by the Dayton Daily News that the University of

Dayton had used a 10% polling formula to select the candidates for its debates. See Laura A.
Bischoff, Dayton to host first governor debate at UD, Sept. 12, 2018, DAYTON DAILY NEWS,
https://www.daytondailynews.com/news/dayton-host-first-governordebate/Bj8Eh0MTiLVYc2OyAyqNQI/ (last visited, Sept. 15, 2018).
34.

The University of Dayton on September 12, 2018 or later sent to Cox Media Group Ohio

and/or its attorney a letter stating that the University of Dayton had used a 10% polling formula
to select the participants invited to its debate.
35.

Cox Media Group Ohio, through its attorney, orally described the letter dated September

12, 2018 it received from the University of Dayton to counsel for the LPO, but has refused to
produce it for review by the LPO's attorney.

4

 36.

Cox Media Group Ohio has produced no contemporaneous documentation supporting

the University of Dayton's claim that it used a 10% polling figure, or any other pre-existing
objective criteria, to select the participants invited to its debate.
37.

The LPO on September 14, 2018 sent a demand letter to Cox Media Group Ohio, see

Exhibit 4, explaining that the planned Dayton debate excluded the LPO's gubernatorial candidate
and was in violation of Ohio law.
38.

The University of Dayton on September 14, 2018 sent to the LPO's attorney a letter

written by S. Ted Bucaro, Executive Director of Government and Regional Relations at the
University of Dayton, rejecting the Libertarian Party of Ohio's demand without mentioning any
objective criteria. See Exhibit 5.
39.

In his September 14, 2018 response to the LPO's demand letter, Mr. Bucaro made no

reference to any form of pre-existing criteria.
40.

The LPO on September 15, 2018 responded to Bucaro's letter by inviting a more

elaborate explanation from the University of Dayton. See Exhibit 6.
41.

The LPO on September 15, 2018 sent an e-mail to Bruce Biel, general counsel at the

University of Dayton, inviting Mr. Biel to contact the Libertarian Party of Ohio's attorney. See
Exhibit 7.
42.

Following an exchange of phone messages between the LPO's attorney and Beil, Beil on

September 20, 2018 was once again invited by the LPO's attorney in a phone conversation to
produce any documentation the University of Dayton possessed showing that the University of
Dayton employed polling data or any other pre-existing objective criteria to select the
participants invited to the Dayton debate.

5

 43.

Neither Beil nor anyone else acting for the University of Dayton has produced any

documentation supporting the University of Dayton's claim that it used polling data or any other
kind of pre-existing objective criteria to select the participants invited to the Dayton debate.
44.

Neither the Cordray Campaign nor the DeWine Campaign responded to the LPO's letters

and inquiries in order to offer any explanation for why they were participating in what they knew
to be an illegal debate.
45.

The Dayton debate was staged according to its plan on September 19, 2018 on the

University of Dayton's campus before a live audience with live and delayed broadcast coverage
supplied by Cox Media Group Ohio through WHIO-TV, WHIO-Radio and the Dayton Daily
News, and without the LPO's gubernatorial candidate being invited.
Candidates Excluded from Planning and Participation
46.

Neither the LPO's candidate for Governor was informed nor the LPO was consulted or

notified about the planning and staging of this debate before the debate's public announcement
on September 6, 2018.
47.

The LPO's candidate for Governor was not invited to participate in this staged debate.

48.

Had the LPO's candidate for Governor been invited, he would have participated in this

debate.
49.

The University of Dayton did not and notify and has not notified the LPO nor its

candidate of any pre-existing objective criteria it had used to select the participants to be
included in its debate.

6

 Lack of Polling Before the Announcement
of the Debates and After
50.

When the debates were announced on September 6, 2018, there had yet to be any polling

in Ohio asking voters whether they preferred Cordray (Democrat), DeWine (Republican), Irvine
(Libertarian), or Gadell-Newton (Green).
51.

Because there was no poll asking voters whether they preferred Cordray (Democrat),

DeWine (Republican), Irvine (Libertarian), or Gadell-Newton (Green), the University of Dayton
could not have relied on polling data to select its debate participants when it made the selections.
52.

No polling measuring voters' preferences between Cordray (Democrat), DeWine

(Republican), Irvine (Libertarian), and Gadell-Newton (Green) has been conducted in Ohio or
elsewhere either before or after the announcement of the debates.
Violations of Ohio Law
53.

Ohio law categorically bars non-profit corporations from making contributions to

candidates for public office. See Ohio Revised Code § 3599.03(A)(1); O.R.C. § 3517.082.
54.

Ohio's law prohibiting corporations from making contributions extends to non-profit as

well as for-profit corporations, and extends to in-kind contributions and "anything of value" that
is given to candidates. See OHIO SECRETARY OF STATE, OHIO CAMPAIGN FINANCE HANDBOOK,
CHAPTER 9: BUSINESSES AND LABOR ORGANIZATIONS at 9-3 (2018).1
55.

Staging a debate for political candidates causes an in-kind contribution to be made and

constitutes "anything of value" within the meaning of federal law and Ohio's prohibition on
corporate contributions. See Natural Law Party of the United States of America v. Federal
Election Commission, 111 F. Supp.2d 33, 36 (D.D.C. 2000).

1

https://www.sos.state.oh.us/globalassets/candidates/cfguide/chapters/chapter9.pdf).
7

 56.

The September 19, 2018 debate staged and sponsored by the University of Dayton

constituted an illegal corporate contribution by the University of Dayton to Mike DeWine,the
DeWine Campaign, Richard Cordray and the Cordray Campaign.
57.

The Cordray and DeWine Campaigns solicited, aided and abetted the University of

Dayton's staging of the debate between Cordray and DeWine in violation of Ohio's ban on
corporate campaign contributions.
58.

Because Ohio's campaign finance law is "modeled after a provision of the Federal

Election Campaign Act of 1971 ('FECA') requiring both corporations and labor unions to use
separate segregated funds to finance independent expenditures made in federal election
campaigns," Toledo Area AFL-CIO Council v. Pizza, 898 F. Supp. 554, 560 (N.D. Ohio 1995),
interpretations of the federal rules are instructive.
59.

Under the analogous federal law banning corporate campaign contributions, corporate

expenditures may only be used to defray the costs of staging and supporting candidate debates
where those debates are held by nonpartisan organizations and meet the criteria found in 11
C.F.R. § 110.13.
60.

Section 110.13 states that debate staging organizations must either be nonprofit

organizations that “do not endorse, support, or oppose political candidates or political parties,” or
broadcasters that are “not owned or controlled by a political party, political committee or
candidate.” 11 C.F.R. § 110.13(a).
61.

Section 110.13 states that debates must include at least two candidates and not be

structured “to promote or advance one candidate over another.” 11 C.F.R. § 110.13(b).

8

 62.

Section 110.13 states that debate staging organizations are required to use “pre-

established objective criteria to determine which candidates may participate in the debate ….” 11
C.F.R. § 110.13(c) (emphasis added).
63.

Section 110.13 states that "[f]or general election debates, staging organizations(s) shall

not use nomination by a particular political party as the sole objective criterion to determine
whether to include a candidate in a debate.” Id. (emphasis added).
64.

Courts interpreting § 110.13 have ruled that “[s]taging organizations must be able to

show that their objective criteria were used to pick the participants, and that the criteria were not
designed to result in the selection of certain pre-chosen participants.” Buchanan v. Federal
Election Commission, 112 F. Supp.2d 58, 74 (D.D.C. 2000) (quoting FEC statement) (emphasis
added).
65.

Courts interpreting § 110.13 have ruled that “[t]aken together, these statements by the

regulation's drafters strongly suggest that the objectivity requirement precludes debate sponsors
from selecting a level of support so high that only the Democratic and Republican nominees
could reasonably achieve it.” Buchanan v. Federal Election Commission, 112 F. Supp.2d at 74.
66.

Courts interpreting § 110.13 have ruled that staging organizations cannot simply select

the two major-party candidates for inclusion in debates. See La Botz v. Federal Election
Commission, 889 F. Supp.2d 51 (D.D.C. 2012).
67.

Courts interpreting § 110.13 have ruled that staging organizations cannot employ criteria

that are impossible for new and/or minor parties to meet. See La Botz v. Federal Election
Commission, 889 F. Supp.2d 51 (D.D.C. 2012).

9

 68.

Courts interpreting § 110.13 have rejected criteria for debate qualification that are

developed and employed only after the actual selection of participants has been made. See La
Botz v. Federal Election Commission, 889 F. Supp.2d 51 (D.D.C. 2012).
69.

Because the University of Dayton did not employ permissible pre-existing, objective

criteria to select the participants in its debate, the University of Dayton violated Ohio Revised
Code § 3599.03(A)(1).
70.

Because the Cordray and DeWine Campaigns solicited, aided and abetted the University

of Dayton, the Cordray and DeWine Campaigns also violated Ohio Revised Code §
3599.03(A)(1).
71.

Post-hoc explanations used to support debates have been rejected by federal courts

interpreting 11 C.F.R. § 110.13. See La Botz v. Federal Election Commission, 889 F. Supp.2d
51, 62 & n.5 (D.D.C. 2012).
72.

Because two campaigns for the major-party candidates were involved in arranging this

debate with the University of Dayton, there should exist contemporaneous documentation of the
standards for selecting and excluding participants the staging organizations employed; yet
neither the University of Dayton nor the Campaigns have produced any documentation in
response to the LPO's inquiries; nor have they produced any such documentation at any other
time. See La Botz v. Federal Election Commission, 889 F. Supp.2d 51, 62 n.5 (D.D.C. 2012).
73.

The Ohio Debate Commission, of which Cox Media Group Ohio is a member and

participant, explained on its web page before the debate was announced that selection for
inclusion in any debates it planned would be limited to the candidates of the two major parties.

10

 74.

The University of Dayton's September 19, 2018 debate between Cordray and DeWine

was consistent with the Ohio Debates Commission's rules limiting debates to the candidates of
the two major parties.
75.

The University of Dayton's belated claim that it employed polling to select the candidates

for participation in the debates is a post hoc explanation that is not supported by
contemporaneous documentation and records that it has been able or willing to produce.
76.

The University of Dayton's belated claim that it employed polling to select the candidates

for the debate cannot constitute a pre-existing, objective standard because it either did not in fact
exist or because it cannot be verified with contemporaneous documentation before the date the
University of Dayton announced the participants selected for the debate.
77.

The burden of producing evidence establishing that one falls within an exception to

Ohio's ban on corporate contributions falls on the party claiming the exception. See 42 OHIO
JUR.3D EVIDENCE AND WITNESSES § 98 (2018).
78.

Even if the University of Dayton had employed comparative polling data as a pre-

existing criterion, any such criterion would have been impossible for the LPO's candidate to
satisfy because no poll including Irvine existed.
79.

The University of Dayton, the Cordray Campaign, and the DeWine Campaign knew

when they staged the debate that no polling existed.
80.

Pursuant to O.R.C. § 3517.991, Ohio's Administrative Code provides that violations of

O.R.C. § 3599.03(A) are subject to fines levied by the Ohio Elections Commission and ranging
from 100 to 5000 dollars. See O.A.C. 3517-1-14(B)(3).

11

 81.

Cordray and DeWine are responsible under Ohio's campaign finance laws for the actions

and omissions of their campaigns. See Disciplinary Counsel v. Spicer, 106 Ohio St. 3d 247, 834
N.E.2d 332, 338 (2005).
82.

Fines are to be assessed separately against the corporation, the candidate's campaign

committee, the campaign's treasurer and the candidate. See O.A.C. § 3517-1-14(B)(6).
83.

One factor "[i]n determining the amount of a fine and whether to impose the maximum or

minimum penalty allowable" is "[w]hether such actions were knowing or purposeful; …."
O.A.C. § 3517-1-14(B)(5)(b).
84.

Violations of Ohio Revised Code § 3599.03(A)(1) are fist degree misdemeanors, see

O.R.C. § 3599.40, and the Ohio Elections Committee is empowered to refer potential violations
of O.R.C. § 3599.03(A) to the appropriate prosecutor, which in this instance is the prosecuting
attorney of Franklin County. See O.A.C. § 3517-1-14(C)(2)(a).
85.

Ohio Revised Code § 2923.03(A) provides that "[n]o person, acting with the kind of

culpability required for the commission of an offense, shall do any of the following: (1) Solicit or
procure another to commit the offense; (2) Aid or abet another in committing the offense;…."
86.

Ohio Revised Code § 2923.03(F) states that "[w]hoever violates this section is guilty of

complicity in the commission of an offense, and shall be prosecuted and punished as if he were a
principal offender. A charge of complicity may be stated in terms of this section, or in terms of
the principal offense."
87 .

There exists probable cause to believe that the University of Dayton, Richard Cordray,

Richard Michael DeWine, the Cordray Campaign, and the DeWine Campaign knowingly
violated O.R.C. § 3599.03(A)(1).

12

 88.

There exists probable cause to believe that Cordray Campaign, Cordray, the DeWine

Campaign, and DeWine knowingly accepted corporate campaign contributions from the
University of Dayton in the form of an exclusively staged debate in violation of Ohio law.
89.

There exists probable cause to believe that the Cordray Campaign, Cordray, the DeWine

Campaign, and DeWine aided and abetted the University of Dayton's illegal corporate campaign
contributions by accepting the contributions and by participating in the staging of the debate in
violation of Ohio Revised Code § 3599.03(A)(1).
90.

There exists probable cause to believe that the University of Dayton made illegal

corporate campaign contributions to the Cordray Campaign, Cordray, the DeWine Campaign,
and DeWine by staging a debate without having used proper pre-existing, objective criteria.
Injuries to Irvine, the Irvine Campaign and the Libertarian Party of Ohio
91.

The undersigned, Harold D. Thomas, is chair of the LPO and has full executive authority

to act on behalf of the LPO.
92.

The LPO's continuing existence under Ohio law depends on its gubernatorial candidate,

Travis Irvine, winning at least 3% of the popular vote in the 2018 election.
93.

The LPO's gubernatorial candidate's exclusion from the debate illegally staged by the

University of Dayton, Richard Cordray, Richard Michael DeWine, the Cordray Campaign, and
the DeWine Campaign, injures the LPO by reducing Irvine's exposure to voters relative to the
exposure awarded to Cordray and DeWine.
94.

The LPO's gubernatorial candidate's exclusion from the debate illegally staged by the

University of Dayton, Richard Cordray, Richard Michael DeWine, the Cordray Campaign, and
the DeWine Campaign, diminishes the popular support that Irvine will receive in the 2018
gubernatorial election to the benefit of Cordray and DeWine.

13

  

95. The gubernatorial candidate, Travis Irvine, and the Libertarian Party of Ohio?s
incurred injuries that are and were causally connected to the University of Dayton's, Richard
Cordray's, Richard Michael DeWine's, the Cordray Campaign's, and the DeWine Campaign's,

unlawful corporate contribution.

DEMAND OR RELIEF

WHEREFORE, Complainant respectfully requests that the Commission investigate the
allegations contained in this Complaint, declare that the Defendants are in violation of Ohio
Revised Code 35 1), impose sanctions commensurate with those violations, and if

necessary refer the matter to the Franklin County Prosecutor.

Respectfully submitted,

Mar, KR

Mark R. Brown

303 E. Broad Street

Columbus, OH 43210

614?236-6590
mbrown@law.capital.edu

Attorney for Libertarian Party of Ohio

 

Oliver B. Hall

Counsel to Libertarian National Committee
1444 Duke Street

Alexandria, VA 22314

617-953?0161

14

 

 

VERIFICATION

I swear under penalty of perjury that the foregoing is true to best of my personal

knowledge and belief; SIGNED AND SWORN BEFORE A NOTARY PUBLIC.

 

 

Harold Thomas

Chair, Libertarian Party of Ohio
PO. Box 29193

Columbus, Ohio 43229

STATE OF OHIO
COUNTY OF FRANKLIN

Subscribed, sworn and acknowledged by Harold Thomas before me this 51 day of
September, 2018.

My commission expires: \nga ?y 

   
 

My Commission Expires
June 30, 2019

15