Saturday, September 09, 2006

Strong Ohio links:
I keep getting lost when I try to sort out what's been going on in Ohio re Strong Ohio, and the issues of its disclosure of funding in the anti-Resnick ads that may, year slater, have helped drive Resnick from office.
I've blogged about this before, but it was long ago and I've lost track of details.

6th circuit 2005 Common Cause/Ohio v Marsh link.

Common Cause/Ohio v Ohio Elections Comm'n 779 NE2d 766 (App Ohio 2002)link
Common Cause/OH Wins Campaign Ad Case

Common Cause/Ohio won its case against the U.S. Chamber of Commerce today before the Ohio Elections Commission concerning the 3 ads that the U.S. Chamber ran in 2000 during the Ohio Supreme Court races that year.

The U.S. Chamber presented its Buckley defense to CC/O's claim that the Chamber violated Ohio's statutory prohibition on corporate spending "in aid of or opposition to a candidate's election" (Ohio's equivalent to the Michigan statute in Austin and the federal statute in MCFL). By a 4-to-3 vote, the Commission rejected the Chamber's Buckley defense, found the Chamber in violation of the statute, and imposed a fine (albeit a small one of $1000). The Chamber will appeal, presumably to the Ohio judiciary, although perhaps by a collateral attack in federal court.

The case is perhaps particularly noteworthy because of the character of the Chamber's 3 ads: two were comparative in nature, stating that one of two competing candidates was highly qualified, while the other was not; the third attacked an incumbent Ohio Supreme Court justice as corrupt and thus unfit for office.

In ruling in Common Cause's favor, the Commission rejected the Chamber's reliance on the Fifth Circuit's decision in Moore v. U.S. Chamber of Commerce, and apparently adopted the "unambiguous endorsement" theory of Buckley that the Fifth Circuit had rejected. The Commission plans to release a written opinion in support of its decision within 30 days, so we'll learn then more about its specific reasoning.

The case was back before the Commission pursuant to a stipulation between Common Cause/Ohio and the U.S. Chamber that avoided the need for further procedural delays relating to Ohio administrative law, which already had consumed over two years of litigation in Ohio courts. blurb .

A federal challenge to Ohio election law that was interpreted to regulate independent speech that did not contain express advocacy. Chamber of Commerce v. Ohio Elections Commission, 135 F. Supp. 2d 857 (S.D. Ohio 2001). www.wrf.com (jan baran's firm.)

Recent decisions obtained for our clients have:

Upheld First Amendment right of the Center for Individual Freedom to run television advertising dicussing candidates for Louisiana Supreme Court. Center for Individual Freedom v. Carmouche, 449 F.3d 655

First A Center Article.

As part of an agreement the chamber and Common Cause reached before the April 24 hearing, Common Cause dropped its claim that the chamber’s ads contained false statements. The chamber agreed to drop an appeal in the case pending before the Ohio Supreme Court.

In other words, Common Cause had been falsely claiming the ads were false.
This claim of falsity was the basis for its 2002 state court win.
Under the deal, the chamber also will not be have to disclose its donors. Resnick said they should be forced to do so.Business group must name campaign-ad backers, agency rules

By The Associated Press
COLUMBUS, Ohio — The Ohio Elections Commission voted last week to force a statewide business group to disclose the names of contributors to campaign ads attacking a state Supreme Court justice.

The commission on Sept. 4 voted 4-2 to require Citizens for a Strong Ohio to reveal the contributors to TV ads that targeted Justice Alice Robie Resnick.

The seven-member commission is a bipartisan board that hears complaints about alleged violations of Ohio campaign laws. The commission is made up of three Democrats, three Republicans and an independent.

The names of the contributors — businesses and corporations that opposed Resnick — are still a long way from being released. The commission’s decision was preliminary and does not carry the force of a court ruling. The commission must now go to Franklin County Common Pleas Court to have its ruling enacted.

Citizens for a Strong Ohio, a group formed by the Ohio Chamber of Commerce, spent $4 million in an unsuccessful attempt to defeat Resnick three years ago. The group will appeal and may also challenge the constitutionality of the decision in federal court, said the group’s lawyer, William Todd, after last week’s decision.

Business groups opposed Resnick because of what they consider antibusiness votes she’s cast in cases involving insurance, caps on jury verdicts and school funding.

The Massachusetts-based Alliance for Democracy asked the commission to require the release of the names. The nonprofit Waltham, Mass.-based group opposes what it calls the influence of corporations on elections and other public policy areas.

Cliff Arnebeck, an attorney representing the alliance, said the Elections Commission stood up to corporations and acted on behalf of all Ohioans.

Todd said revealing the names would violate the organization’s constitutionally protected freedom of speech.

One of the ads in question depicted someone dumping bags of money on Resnick’s desk and implied that she switched her vote on a 1991 case after a contributor complained. Another ad compared the credentials of Republican Justice Deborah Cook, who was also on the 2000 ballot, with those of Democrat Tim Black. Resnick and Cook both won re-election.

A key issue is whether the ads run by Citizens for a Strong Ohio specifically targeted Resnick for defeat instead of trying to educate voters about the election. The U.S. Supreme Court’s 1976 ruling Buckley v. Valeo shields outside groups from disclosure if they run ads that don’t directly urge the election or defeat of a candidate.

Independent commission member Warren Tyler, who voted in favor of disclosing the contributors, said it was clear to him the ads weren’t about education.

“I can’t believe it wasn’t a forthright effort to affect the outcome of an election,” he said.

Democrat William Booth said corporations that contribute thousands of dollars to a campaign fund should be subject to the same scrutiny as a person who makes a $25 donation to a campaign.

Just like the person making a small donation, the corporations “certainly expect to reap the benefits of the election,” said Booth, who also voted to disclose the names.

Benjamin Marsh, a Republican who voted against revealing the contributors, said the issue was a policy question for the state and federal government. “It’s not an issue for the commission at this time,” he said.

Who is paying for attack ads?
Democrats want backers identified
COLUMBUS - Democrats have asked the state Supreme Court to force a group targeting the party's candidate for governor to disclose its backers, a case reminiscent of a 2000 battle over ads against one of Ohio's justices.

The third-party group, called Common Sense 2006, received $1.5 million in donations from another group known as Common Sense Ohio. The money came from unknown sources who the groups say are protected by their nonprofit status.

Two of the groups' directors, Douglas Robinson and Harold Swift, have given a total of $8,600 to Republican candidate Ken Blackwell's campaign since 2004.

Spokesman Carlo LoParo said the groups have no connection to Blackwell's campaign.

Last month's ads against U.S. Rep. Ted Strickland say he has a history of voting for tax increases and noted his low scores in grades by conservative advocacy groups. They also criticized some of Strickland's congressional votes favoring abortion rights.

The Ohio Democratic Party asked the Supreme Court to order Blackwell, who oversees Ohio elections as secretary of state, to make the groups release contributors' names. The party argues the donors cannot be kept secret under a 2004 Ohio election law that requires disclosure of contributors to campaigns that specifically call for the election or defeat of a candidate.

"Who are the people supporting these groups? What are their names?" party Chairman Chris Redfern said. "I'm not necessarily saying they're bad, yet. I just want to know who they are."

The groups are operating within the law because changes made in 2004 allow third-party groups to advocate for issues until 30 days before the election, Common Sense 2006 lawyer William Todd said Thursday.

Blackwell's office declined comment. Spokesman James Lee said the office would file a response with the Supreme Court.

In 2000, a group backed by the Ohio Chamber of Commerce ran attack ads against Democratic Justice Alice Robie Resnick. The Ohio Elections Commission and an appeals court ruled that nature of the ads required the disclosure of the group's contributors.

However, that group, called Citizens for a Strong Ohio, was funded mainly through corporations while the Common Sense group is not, Todd said.

"There are additional constitutional protections for individuals," Todd said. "The constitutional laws are separate."

In the Resnick case, four Supreme Court justices including Resnick recused themselves because of their involvement
link to the article

Ohio high court: Campaign-ad donor names must be disclosed
Pro-business group asserted a First Amendment right to keep contributors' identities secret. 12.28.04

U.S. Chamber's campaign ads violated state law, agency rules
Group says it will ask court to overturn Ohio Elections Commission decision. 04.26.03

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