COLUMBUS — The 1851 Center for Constitutional Law on Monday issued a brief to address concerns that asking an Ohio legislator to sign an anti-tax pledge could be illegal.

With Gov. John Kasich pushing a severance tax increase on the fledgling oil and gas industry, constituents are promoting an anti-tax pledge similar to Americans for Tax Reform’s Taxpayer Protection Pledge. The new pledge states: “I pledge that I will not vote to raise the severance tax on oil, gas, and other liquids in Ohio, thereby protecting Ohio’s competitive advantage over other states.”

But when state Rep. Dorothy Pelanda, R-Marysville, a first-term appointee campaigning for the newly drawn 86th House District, was asked to sign the pledge, she responded that asking her to sign such a pledge was illegal and violated Ohio Revised Code 3599.10. The law states: “No person, firm or corporation shall demand of any candidate for the general assembly any pledge concerning his vote on any legislation, question, or proposition that may come before the general assembly.”

That statute, which dates from the 1950s, has never been enforced.

Maurice Thompson, executive director of the 1851 Center and author of the brief, said the law is “wildly unconstitutional which is probably why it’s never been enforced.”

While the statute says no one shall “demand,” it fails to define demand. Thompson argues that asking a legislator to sign the pledge is not the same as demanding that the pledge be signed — and because of this, the law does not apply.

Thompson said he believes legislators and candidates should not hide behind the law or use it as an excuse not to take a position on the tax pledge.

“Even if asking is somehow determined to be illegal,” he said, “a legislator may still sign a pledge. There are no prohibitions against them making such promises to their constituents.”

The brief cited Brown v. Hartlage, in which the U.S. Supreme Court struck down a Kentucky law that forbade legislative candidates from pledging to support a certain policy once in office.

“In voiding the Kentucky statute,” the brief states, “the Court explained that ‘candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote.’”

Maggie Thurber

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