Senate Bill 94’s Unintended ConsequencesMar 31, 2021
Tucked inside Senate Bill 94 are several lines of legislative text that should concern public interest groups on both sides of the proverbial aisle. If enacted, Senate Bill 94 regulates non-recourse litigation funding and takes the unprecedented step of requiring automatic disclosure of litigation funding to the court and to opposing parties. Although the bill applies to commercial litigants today, it is conceivable that it could be relied upon and expanded to apply to public interest litigation tomorrow—a slippery slope that public interest firms and their donors should find troubling.
Some in Congress have voiced concern about so-called “dark money” behind public interest litigation. Buckeye routinely calls for more transparency for what government is doing with your money, but that is very different than government keeping lists of what you do with your money. The interest in transparent government and its use of taxpayer dollars should not be confused with or used to bully non-profit organizations to reveal their philanthropic donors. Indeed, the seminal case on the right of private association involved government trying to force civil rights groups to reveal their donors. Forcing litigation funding disclosures for public interest firms will have a chilling effect on charitable donations that will likely stymie public discourse and debate.
Senate Bill 94’s disclosure mandate is the wrong answer in search of a problem. If a court believes that the funding source of a case is relevant to the litigation at bar, the court can always order the identity disclosed. But if such disclosure is so irrelevant to the case that the court sees no reason to order it, then Senate Bill 94’s mandate serves no purpose, other than perhaps to discourage funding arrangements that are legal under Ohio law. It is, as lawyers like to say, “overbroad”—and a treacherous step toward an avoidable slippery slope.
Jay Carson is a senior litigator with The Buckeye Institute’s Legal Center.