Election Law @ Moritz


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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Debate Over Campaign Finance Reform in Ohio Prompts Question: Is Disclosure Enough?

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April 19, 2005

In December 2004, during a special session, the Ohio General Assembly passed H.B. 1, a campaign finance bill with the goal of "reaffirming voter confidence in our system by making sure that their votes were earned with accountability and with transparency," according to the bill's sponsor, Representative Kevin DeWine. All Democrats in the General Assembly voted against the bill, largely because they opposed the bill's increase in the contribution limit from $2,500 to $10,000 per election cycle.

Questions about whether the current campaign process breeds corruption and the sufficiency of disclosure as a reform were main points of disagreement at a forum on Campaign Finance Reform in Ohio hosted by Ohio Citizen Action and Election Law @ Moritz on Friday, April 15. The first panel, "The Call for Campaign Finance Reform," focused on various events that led the General Assembly to turn its attention to campaign finance issues for the first time since the mid-1990s. Julie Carr Smyth of the Cleveland Plain Dealer and Catherine Turcer of Ohio Citizen Action summarized some of the "scandals" involving campaign finances that have occurred in Ohio since 2000. While thus far only a few of the "scandals" have resulted in indictments, the presenters made a credible argument that at least the appearance of corruption, if not actual corruption, had once again become a problem in Ohio. According to the panel, the General Assembly decided that "really aggressive" change was necessary and the primary approach was to permit voters to be able to "follow the money."

The second panel, "House Bill 1 and the Legislative Process," provided three varied interpretations of the reforms included in the bill. Dana Walsh, from the Office of the Secretary of State of Ohio, stated that the bill's basic premise is disclosure because under prior law "too many loopholes" prevented people from tracing the flow of money. He described a litany of changes made by the bill that increase reporting requirements and prohibit contributions to accounts previously not subject to disclosure of donor information.

Senator Marc Dann sharply disagreed about the effects of the bill. After stating that campaign finance is a unique area that requires bipartisanship, he claimed that the three most important elements of campaign finance reform are missing from the bill. First, reform requires meaningful limits, and Ohio 's limits are now some of the highest in the nation. Second, the timing of disclosure is as critical as the disclosure itself, and the bill focuses on disclosure around election time rather than requiring instantaneous disclosure during the critical periods during the legislative session when contributions are intended to influence legislation. The third necessary element to reform is meaningful penalties. Senator Dann called for the criminalization of violations of campaign finance laws.

In contrast to the tacit agreement of the first panelists that corruption, or the appearance of corruption, is a problem in Ohio politics, the third panelist characterized any campaign finance regulations as a "loophole in the First Amendment." Bill Todd, from the law firm of Squire, Sanders & Dempsey LLP, emphasized that any reforms must not violate the constitutional guarantees of the right to criticize government. Additionally, reforms must provide concrete guidance so that political contributors know what they can legally do with their money. His stated concern was that the ability to articulate a political message depends on the ability to acquire enough money to get that message out, and thus restrictions on the amount of contributions and too much regulation violate citizens' First Amendment rights. Mr. Todd has represented numerous "issue advocacy" groups, including Citizens for a Strong Ohio, which gained national recognition for its television ads attacking Ohio Supreme Court Justice Resnick in her 2000 bid for re-election. In a written analysis, he advises that H.B. 1's changes have created "new opportunities for an Ohio business to participate in the political arena."

The third panel included some technical analysis of the contents of the bill by Suzanne Novak from the Brennan Center for Justice at New York University and several points to consider when reforming campaign finance laws provided by Herb Asher, Professor Emeritus at The Ohio State University. Ms. Novak raised questions about some of the wording in the bill that is unclear, pointed to some specifics in the bill that seem to run counter to the policies underlying the bill, and noted some areas of constitutional concern. Mr. Asher's main points were that the law of unintended consequences affects campaign finance reforms, and that disclosure will never work as advocates suggest.

At the end of the day, the question remained whether disclosure is sufficient to "reaffirm voter confidence." Do voters feel confident that disclosure prevents corruption and the appearance of corruption, as the Republican supporters claim? Or does a $10,000 per cycle limit, even if every dollar is disclosed, lead to the kind of improper influence by contributors and diminished participation by average citizens that is feared by the Democratic opponents?

Disclosure by itself provides no information to the average citizen. Someone must go through the reports, analyze them, and then make the information accessible to interested citizens, all in a timely manner. The media also must be committed to the analysis and dissemination of the information. Does a report that indicates that a House race was funded by contributions from only five families (each couple contributing $20,000 for the primary and $20,000 for the general election) "reaffirm voter confidence"?

The seminal U.S. Supreme Court case of Buckley v. Valeo upheld contribution limits because ceilings "merely . . . require candidates and political committees to raise funds from a greater number of persons . . . ." Buckley v. Valeo, 424 U.S. 1, 22, 96 S.Ct. 612, 636 (1976). House Bill 1, while expanding disclosure, does little to reassure the average citizen that her voice will be heard over the din of $10,000 contributions from wealthy donors. Even if those contributions are transparent, the move to narrower support from fewer people does not move in the direction of "reaffirming voter confidence."