Soft Money in Ohio Court Race

C O L U M B U S, Ohio, Nov. 3, 2000 -- For many in Ohio, the biggest concern this election season isn’t the national competition for the presidency or the House and the Senate.

It’s the supercharged race for an Ohio State Supreme Court seat, where an incumbent justice for the first time is battling not just her opponent, but also a corporate advertising blitz paid for with millions of dollars in unregulated, anonymous donations, also known as “soft money.”

The race is a textbook example of how current campaign finance laws allow certain groups to bypass limits on advertising spending, to avoid identifying contributors, and to skirt regulations on fair and accurate advertising — yet still have an impact on the election.

It also illustrates the growing presence of soft money in state politics, and in races for state judicial office, which some argue should be about principles and qualifications, not political interests and big money.

Supporters of the incumbent, Democratic Justice Alice Robie Resnick, by credible accounts, are being outspent at least 7-1 by Resnick’s critics.

Those critics include the U.S. Chamber of Commerce, the Ohio Chamber of Commerce, and an organization not subject to state campaign finance laws called Citizens for a Strong Ohio.

Ohio rules limit Supreme Court spending to $550,000 per candidate. Citizens for a Strong Ohio has spent well over $3 million on advertising criticizing Resnick.

The U.S. Chamber of Commerce, separately, is running its own unregulated “issue” ads criticizing Resnick’s record. They won’t say how much they’ve spent.

A Constitutional Question

In controversial television advertising bought by pro-business Citizens for a Strong Ohio, Resnick has been accused of having an anti-business bias on the Supreme Court bench, encouraged by the donations of trial lawyers.

One 30-second advertisement widely broadcast on Ohio television depicts Resnick in black robes switching a vote after someone dumped bags of money on her desk.

Another shows a blindfolded lady justice peeking at a pile of money on her scales, before she and the scales fall over and break.

The political watchdog group Common Cause last month protested the ads to the Ohio Election Commission, charging they contained false statements and that Citizens for Strong Ohio should have registered itself as a political action committee, or PAC, making it subject to laws.

But based on the content of the ads, the Ohio Election Commission in a 4-3 decision declined to rule on their accuracy. It ruled instead that Citizens did not have to file as a PAC and so isn’t subject to state campaign finance and truthful advertising laws.

It cited a 1976 U.S. Supreme Court decision, Buckley vs. Valeo, that set out distinctions between regulated “expressed advocacy” advertising and unregulated “issue” advertising during campaigns.

Referencing First Amendment free speech protection, the Supreme Court had ruled that advertising which doesn’t specifically recommend an action to the viewer — such as “vote for so-and-so” or “elect so-and-so” — would not be regulated, even though it discussed a candidate.

“The commission found there was no basis for it to go forward, primarily based upon the content of the message that’s included in the advertisements that they don’t espouse or exhort anybody to a particular action either to vote or not vote for somebody,” says the commission’s executive director, Philip Richter.

“The ads are what we would classify as issue ads and in falling in that category they are not subject to Ohio’s campaign finance disclosure laws or the false statement act.”

Concerns of Retribution Cited

Perhaps because the ads have become so controversial, Citizens for a Strong Ohio’s approach has taken hits from some prominent Republicans. Ohio Governor Bob Taft reportedly said through a spokesman he found one of the group’s ads inappropriate and that he had stopped raising money for it.

Resnick’s challenger for the seat, Republican state appeals court judge Terrance O’Donnell, reportedly issued a strong statement endorsing full disclosure of contributors by groups such as the pro-business group.

Nevertheless, Citizens for a Strong Ohio defends its ads as issue advertising and not political advocacy.

“We are not a PAC, we are not advocating the election or defeat of candidates,” says Chip McConville, Vice President of Citizens for a Stronger Ohio.

He also defends on constitutional grounds his group’s unwillingness to disclose its contributors.

“Historically, the First Amendment has offered protection for groups like ours that engage in controversial speech from having to disclose membership lists or contributor lists because there could be repercussions to those members or contributors for the speech the organization participates in,” says McConville.

“People wonder about what kind of retribution there would be from an incumbent,” he says.

McConville acknowledges his group’s beef with Resnick’s record. A study Citizens recently published concludes Resnick voted favorably for the positions of the Ohio Academy of Trial Lawyers (OATL) in a majority of cases where the academy filed a friend of the court brief.

One statistic presented in the study has Resnick voting in 1994 82 percent of the time favorably toward OATL, from which it said she has received $261,033 over the past 10 years.

“The business community understands that the court is important and we are going to speak on these issues regarding the court,” he says.

The trial lawyers and others, through a regulated PAC called Citizens for an Independent Court, had spent $528,000 in favor of Resnick’s year 2000 re-election as of Oct. 18.

A New Phenomenon

Followers of Ohio politics say Citizens’ approach is unprecedented in an Ohio Supreme Court race.

“In previous Supreme Court races, there were influxes of money, but the groups registered as PACs,” says Richter of the Electoral Commission.

He notes soft money has been used in Ohio congressional races over the past four to six years. But this is the first time he’s seen it prevalent in a state supreme court race, or in a state-wide election, for that matter.

“This is the first time [money] has been handled by a particular group that has used solely soft money and come in outside of the campaign finance laws,” says Richter.

What’s happening in Ohio seems to be part of a nationwide increase in unregulated money in state politics. For example, the U.S. Chamber of Commerce, for the first time this election, is using soft money to influence state Supreme Court elections in Ohio, Michigan and Mississippi, and the state attorney general race in Indiana.

“I think it’s a combination of the trial lawyers having sort of dominated this process in the past and the feeling that it’s right to engage the public in the importance of these races,” says Jim Wooton, a spokesman for the U.S. Chamber of Commerce.

Exploiting a Loophole?

Critics of the practice argue businesses are exploiting a loophole in campaign finance laws by anonymously funding the advertising, and by doing so are corrupting Ohio’s highest court.

“To say this is an educational campaign of some kind — like hell,” says John Gilligan, a former Democratic Governor of Ohio from 1970 to 1974. “It’s a direct, personal, negative attack on a candidate for public office.”

A judicial position is not supposed to be a position subject to political pressures, says Gilligan. “We’re not electing people who will weigh given public issues they way they do when you elect a senator or someone like that.”

Another example of how a loophole is being exploited, critics contend, is the non-regulated Citizens’ connections to the Ohio Chamber of Commerce.

The Ohio Elections Commission has judged Citizens for a Strong Ohio independent of any advocacy groups. Were it not, Citizens might be subject to state campaign finance laws.

Yet, the critics note, Chip McConville, holds two titles: he’s Citizens’ vice president and the director of the Chamber of Commerce.

Further, critics say and McConville acknowledges the chamber was a major force in getting the soft money group off the ground.

“That’s no particular secret,” says McConville.

The chamber already operates a regulated political action committee.

McConville denies Citizens is doing anything inappropriate.

“They want to characterize this as some sort of loophole in Ohio campaign finance law. Well, that might be convenient for them but for the fact that this supposed loophole has its basis in the First Amendment, and a 24-year-old U.S. Supreme Court decision,” he says.

“We didn’t put the rules together. We’re willing to play by the set of rules that exist at any one time,” he says.