COLUMBUS - In a surprise move yesterday, an Ohio Elections Commission panel reversed itself and agreed to look into allegations that business-financed groups have violated state election law in a bid to change the Ohio Supreme Court.
The hearing, however, will not take place until after today's election.
“Citizens for a Strong Ohio and the Chamber of Commerce have overstepped their bounds in this case,” said Commissioner Dale Bayer, a Democrat. “If we let them go and not get into it fully, we are doing a disservice to the citizens of Ohio and throwing the door open to where whoever ... has the most money is the winner.”
Citizens for a Strong Ohio, a non-profit “issue advocacy” arm of the Ohio Chamber of Commerce, and the U.S. Chamber of Commerce have run controversial ads critical of Justice Alice Robie Resnick, a Toledo Democrat, and promoting her Republican opponent, Cleveland appellate Judge Terrence O'Donnell.
One ad shows freshman Justice Deborah Cook, an Akron Republican also seeking re-election, in a favorable light compared to her Democratic opponent, Hamilton County Municipal Judge Tim Black.
The two organizations are expected to spend a total of about $5 million on ads. If the spots are found to be political rather than educational, the organizations could be penalized for failing to report their contributors and taking money directly from corporations in violation of Ohio elections law.
Meanwhile, Clifford Arnebeck, attorney for the national Alliance for Democracy, said he will file complaints with the Supreme Court's Office of Disciplinary Counsel against Governor Taft and other attorneys known to be associated with the two ad campaigns. The governor helped raise funds for Strong Ohio.
Both the Probable Cause Panel and the full commission had voted that the ads are protected free speech, reasoning that they've come close but had not crossed the line between providing information and expressly advocating the election or defeat of a candidate.
“The First Amendment is designed to protect all types of organizations and individuals who may disagree and vociferously engage in public debate in very heated terms, but the courts recognize only a very narrow portion of that debate ... can be regulated by government,” U.S. Chamber attorney Jan Baran told the commission.
None of the ads specifically mention today's election, nor do they use words like “elect,” “vote for,” or “defeat.”
William M. Connelly, the probable cause panel's Republican chairman, opposed a full hearing a week ago. He was the swing vote yesterday, making it 3-2 in favor of giving Alliance for Democracy and Common Cause of Ohio hearings before the full seven-member commission.
He noted that U.S. District Court in southern Mississippi last week held that a judicial ad campaign waged there by the U.S. Chamber in that state were political, despite the fact that it never met the “magic words” test set in a 1976 U.S. Supreme Court ruling.
U.S. Supreme Court Justice Antonin Scalia stepped in yesterday to stay an order that the Mississippi ads be pulled from the air pending an appeal.
Regardless of which way the full commission ultimately rules after a hearing, the Ohio case is likely to end up in court.