Demagogue

It probably won't get much play outside Ohio, but an important campaign finance case has finally come to a conclusion after four years of often bitter controversy.

Over the past three election cycles, Ohio has had the dubious privilege of leading a trend of massive spending increases in state judicial elections. Corporate interests, led by the U.S. Chamber of Commerce, got the ball rolling by devoting tens of millions of dollars to electing high-court judges who were believed to be friendly to "tort reform" and hostile to plaintiffs. To some extent, plaintiffs' lawyers and labor unions have responded in kind, and the result has been an explosion in generally nasty and often misleading advertising. If you live in one of the judicial battleground states, like Mississippi, Illinois, or Michigan, you know what I'm talking about.

One way in which the judicial races were in front of a trend was that most of the nasty stuff came not from the candidates' own campaigns but from interest groups who were supporting one candidate or the other. Indeed, given most judges' preference for a more dignified process that shows more respect for the nature of the judicial function, it has not been unusual in recent years for the candidate who is not being attacked to denounce the ads and call on his or her ostensible "supporters" to cut it out.

One of the most notorious of these campaigns was against an incumbent Ohio Supreme Court justice named Alice Robie Resnick. A group called "Citizens for a Strong Ohio" sponsored several ads that implied that Resnick had changed her mind in a case after receiving a bribe. Resnick wasn't the only one outraged by the ads, and the state regulators have been trying for four years to get "Citizens for a Strong Ohio" to reveal who was paying for the ads, i.e., who was contributing to "Citizens for a Strong Ohio." Since Resnick had voted with a majority to strike down a "tort reform" statute as unconsitutional, it didn't take long for people to figure out that "Citizens for a Strong Ohio" was linked to the state's Chamber of Commerce, but they still couldn't find out who was actually footing the bill.

"Citizens for a Strong Ohio" claimed that it had a First Amendment right not to reveal its contributors. Before the Supreme Court's decision last year in the McCain-Feingold case, there was a plausible argument that a PAC couldn't be required to report contributions and expenditures unless it engaged in "express advocacy," i.e., its ads told voters whom to vote for or against. Since the ads didn't actually say "Vote Against Resnick," the group claimed it couldn't be covered by the campaign finance laws.

To get an idea of how ridiculous claims of "no express advocacy" could get in the days before McCain-Feingold, consider this:

Citizens for a Strong Ohio spent $4 million in the 2000 campaign, including a television ad showing a female justice changing a vote after bags of money are dumped on her desk.

The group maintained it was not required to follow election law for candidates, political parties or political action committees because it is an issue advocacy group that does not directly promote the election or defeat of a particular candidate.

Resnick's opponent was a man. There was absolutely no doubt in anyone's mind as to what these ads were telling voters to do: vote against the woman justice. But "Citizens for a Strong Ohio" could, with a straight face, claim that these ads were just about "issues" and not about promoting or opposing a candidate for office.

An administrative commission and lower courts in Ohio disagreed and ordered "Citizens for a Strong Ohio" to disclose contributions. Once the McCain-Feingold case came down, the chances that "Citizens for a Strong Ohio" could get these decisions reversed diminished considerably. Now, it has finally given up and disclosed its contributors.

Guess what? The list of the top contributors includes a bunch of corporations, plus one law firm. I don't know about you, but if I heard of a group called "Citizens for [insert something good]," I'd figure it was a bunch of people. Which is obviously what the group's name was meant to conjure in the minds of viewers. If voters knew that it was insurance companies and manufacturers who didn't like this judge, maybe they'd think a bit more skeptically about the ads' claims. Maybe they were skeptical enough as it was: Resnick was re-elected.