The Supreme Court of Ohio has seven members: a chief justice and six associate justices. All Justices serve six-year terms. All seats on the court are elected at large in staggered biennial elections. Ohio Supreme Court elections are officially nonpartisan. However, candidates for the court are nominated by the political parties and participate in party primary elections. After the primary, candidates for the Ohio Supreme Court are nominally unaffiliated and their party designations are left off the ballot.

Despite the inherent problems with an elected judiciary, Ohio has a longstanding tradition of electing judges. In 1987, voters rejected a ballot initiative that would have adopted merit selection for appellate judges by a two-to-one margin. Recent polling demonstrates Ohio voters’ continuing commitment to electing judges. For better or worse, then, judicial elections seem likely to remain a part of Ohio government for the foreseeable future.

The Supreme Court of Ohio establishes the rules governing judicial conduct, campaign practices, and campaign contributions. Currently, an individual donor can give up to $3000 to a Supreme Court candidate in a contested primary election and an additional $3000 in the general election. Organizations, such as Political Action Committees (PACs), are limited to $5500 in a contested primary and then again in the general election. Party contributions to a candidate are limited to $150,000 in a contested primary election and $275,000 in the general election.

The financing of judicial campaigns raises legitimate concerns about the impartiality of our court system. Judicial candidates typically receive many of their contributions from attorneys who appear in their courts and the clients they represent. Clients who expect to have litigation pending on a regular basis have an obvious incentive to seek influence over judicial candidates. Judges, as the third branch of government, are supposed to provide independent, unbiased, and fair decisions — not to be swayed by financial support. However noble this idea may be in theory, it is difficult to square with the reality of judicial campaigns.

The 2000 election was a watershed for judicial elections in Ohio. In August of 1999, the Ohio Supreme Court declared the state's tort reform law unconstitutional. Almost immediately the Ohio Chamber of Commerce created an affiliate called Citizens for a Strong Ohio to “educate” voters about judicial elections and the need for a more business-friendly court.

Citizens for a Strong Ohio, the U.S. Chamber of Commerce, and other tort reform advocates launched an expensive and unseemly campaign to unseat incumbent Supreme Court Justice Alice Robie Resnick, who had authored the Court’s decision. As a result, Ohio suddenly became the national “poster child” for out-of-control judicial election campaigns — and the precursor of a growing and troubling national trend. During 2000, Citizens for a Strong Ohio raised over $4.2 million and ran ads targeting Justice Resnick. The most infamous ad produced and paid for by Citizens for a Strong Ohio depicted “Lady Justice” peeking out from behind her blindfold as piles of money (presumably provided by trial lawyers and other “anti-business” interests) unbalanced the scales of justice. “Is justice for sale?” the ad ominously asked. The state bar, editorial writers, and others publicly denounced the ads as deceptive, and Justice Resnick won re-election.

Despite numerous inquiries and daily penalties, the Ohio Chamber of Commerce and Citizens for a Strong Ohio adamantly refused to reveal the sources of the $4.2 million raised and spent on the anti-Resnick ads. The group’s attorneys claimed that the “issue ads” in question — because they did not explicitly call for her defeat — were protected speech under the First Amendment and therefore exempt from regulation and disclosure. Nevertheless, the Alliance for Democracy and Common Cause/Ohio filed a complaint with the Ohio Elections Commission. In August of 2003, the Ohio Elections Commission agreed with the petitioners that Citizens for a Strong Ohio acted as a political action committee (PAC) and was established to affect the election. They ordered the Chamber to disclose the donors to Citizens for a Strong Ohio, a decision that was subsequently upheld on appeal by two state courts.

Finally, in January of 2005, the Ohio Chamber identified Citizens for a Strong Ohio’s donors — which, not surprisingly, included a collection of the state’s corporate giants. Among the donors were AK Steel Corporation ($100,000), Columbia Gas ($40,000), Cooper Tire & Rubber ($50,000), Farmers Insurance Group of Companies ($50,000), Federal Insurance Company ($50,000), Fifth Third Bank ($100,000), Grange Insurance Companies ($100,000), Honda of American Manufacturing Inc. ($100,000), Huntington National Bank ($50,000), Kokosing Construction Company ($50,000), Longaberger Company ($50,000), MBNA ($100,000), Mead ($50,000), Medical Mutual of Ohio ($50,000), Motorist Insurance Companies ($50,000), Nationwide Mutual Insurance Company ($100,000), Ohio Farmers Insurance Company ($100,000), Owens-Illinois ($50,000), Procter & Gamble ($100,000), State Auto Insurance Company ($50,000), State Farm Mutual Automobile Insurance Company ($100,000), Travelers Property Casualty ($50,000) and Whirlpool Corporation ($100,000).

And on November 10, 2005, five years after the anti-Resnick ads ran, the Ohio Elections Commission ruled that Citizens for a Strong Ohio was a political action committee and as such, violated Ohio election law by making false statements about Resnick and using corporate money in a campaign opposing a candidate.

Although Ohio has thus far avoided a repeat of the 2000 spectacle, the amount of money being raised and spent on judicial campaign television ads continues to climb. The $6.3 million donated to Ohio Supreme Court candidates in 2004 set a new record for combined judicial candidate fundraising; moreover, Ohio was one of only two states in which three high court candidates raised over $1 million each. Ohio also enjoys the distinction of being the most saturated state in the country for high court TV ads; between 2000 and 2004, 39,151 such ads were aired by Supreme Court candidates, political parties, and interest groups.

The deterioration in the tone of judicial elections prompted Chief Justice Thomas J. Moyer, the Bliss Institute at the University of Akron, the John Glenn Institute at the Ohio State University, the League of Women Voters of Ohio, and the Ohio Bar Association to convene a cross section of lawmakers, party officials, scholars, businesspeople, labor officials, and civic leaders for the purpose of considering a range of reforms. Among the issues considered were judicial qualifications, selection, tenure, salaries, campaign conduct, disclosure, and public education. A day-long conference was followed by the creation of several working groups that were charged with examining various reform options more closely and developing policy recommendations. Unfortunately, this well-intentioned effort quietly expired before producing anything of significant value, owing to a lack of support among lawmakers and the legal establishment.

Why does any of this really matter? Perhaps the most serious consequence is a loss of public faith in the integrity of the judicial process. A 2002 League of Women Voters survey showed that 83 percent of Ohio voters feel that campaign contributions at least “somewhat” influence judges and judicial candidates.

Voter skepticism about whether Ohio’s courts can continue to provide fair and impartial justice has likely been further eroded by recent developments. In August 2004, just days after it became clear that a legal challenge to FirstEnergy’s proposed rate-increase would be heard by the state Supreme Court, the corporation’s CEO hosted a fundraiser for several high court candidates, including Chief Justice Moyer. The event generated over $40,000, a portion of which went to the Chief Justice’s campaign. When the rate case was finally argued, the Chief Justice denied a motion that he recuse himself due to a possible conflict of interest.

Situations like these inevitably raise questions about the fairness and impartiality of the courts, and in today’s fundraising climate such situations are only going to occur with greater frequency. Giving campaign contributions to judges is like giving money to the umpire in the middle of the game. If Ohio voters wish to continue electing judges, then public financing for judicial campaigns makes good sense. Whether there is actual corruption or only the appearance of corruption, eliminating fundraising from judicial campaigns would restore voter confidence and create a more independent judiciary.

FINDING: The Ohio legislature’s recently enacted regulations for broadcast political advertising — particularly so-called “issue ads” — are poorly drawn, will be difficult to enforce, and are of dubious constitutionality.

When the Ohio Legislature addressed the regulation of political ads like those produced by Citizens for a Strong Ohio, it created a convoluted law that flipped the definition of “electioneering communication” on its head. “Electioneering communication” in federal law, and as it is traditionally understood, is a political advertisement, on television or radio that is intended to affect the outcome of an election. In a special session in December 2004, the Ohio General Assembly passed a campaign finance bill (House Bill 1) that defined “electioneering communication” as not intended to influence elections. Ohio’s convoluted definition was the consequence of a compromise among legislative leaders and the Ohio Chamber of Commerce and its affiliate the Citizens for a Strong Ohio. The Chamber did not want a ban on direct corporate funding for political advertisements.

House Bill 1 expanded disclosure of television and radio advertisements by requiring disclosure of sources of funding for ads featuring statewide and local candidates from the time that candidates file for office. There are no restrictions on the sources of the funds for these “electioneering communication” ads, but they are prohibited during the 30 days prior to primary and general elections in Ohio. Only “direct advocacy” communications are permitted during this time right before elections and they may not be funded directly by corporations and unions.

Ohio’s new law has been difficult to implement because it is counterintuitive. There is also a risk that the definition of “electioneering communication” may run afoul of the Constitution, because it extends for nearly one year and might capture advertisements that are truly issue ads and are not related to upcoming elections.

Ohio should adopt a voluntary full public financing system for judicial elections, thereby eliminating the need for candidates to fundraise and reducing the growing perception that justice is for sale. Such a program should be financed through a combination of attorney and court filing fees, a voluntary tax check-off program, and state appropriations.

Attorneys should be required to disclose their contributions to judicial candidates; in turn the political committees established by judges should be required to identify the attorneys and law firms that have contributed to their campaigns and appeared before them in court within the past year. The state supreme court or the legislature should develop recusal rules for cases involving lawyers and litigants who contributed funds to the campaigns of judges before whom they appear, in excess of a clearly-defined amount.

H.B. 1 should be amended to bring the definition of “electioneering communication” into conformity with federal. Specifically, state law should be amended to require disclosure of major funding sources and sponsors of such ads during the 30-day period before a primary election and the 60-day period prior to a general election, with appropriate restrictions on sources of funding for these ads.