This topic is monitored by Moritz Law Professor Edward B. Foley
Four of the seven seats on the Ohio Supreme Court are up for reelection this fall, in a campaign that will be closely watched nationwide. In both 2000 and 2002, when only two seats were on the ballot in each of these years, interest group money poured into those races, and the campaign ads got very ugly. Many political observers expect even more of the same, as both plaintiffs' lawyers and business groups have identified control over the Ohio Supreme Court as a key battle in the war over tort reform.
Efforts to reform judicial elections in Ohio, led by Chief Justice Thomas Moyer (who himself is on the ballot this year), have so far stalled in the state's legislature. A particular problem has been stealth groups, with innocuous names like "Informed Citizens of Ohio," which refuse to disclose their donor lists, but spend millions of dollars promoting a particular candidate or, just as likely, attacking that candidate's opponent. There have been widespread calls for new disclosure rules for Ohio's judicial races, modeled after the disclosure provisions applicable to "electioneering communications" contained in the federal McCain-Feingold law, the constitutionality of which were upheld by the U.S. Supreme Court in McConnell v. FEC, 124 S.Ct. 619 (Dec. 10, 2003). None, however, are yet in place.
The financing of judicial campaigns raise particular acute risks of corruption: both the attorneys who appear in court and the clients they represent (especially institutional clients who expect to have litigation pending on a regular basis that affects their interests) have an obvious incentive to seek influence over the candidates who become judges. Yet, even more than members of a legislature, judges are not supposed to be swayed by the support (financial or otherwise) of constituents. They are supposed to decide the cases that come before them strictly according to the existing applicable law. Some have suggested that elections are inherently incompatible with the judicial function, but an elected judiciary has been a longstanding tradition in Ohio as in other states, and since even modest measures to reform the process of electing judges in Ohio have proved unsuccessful, there is no realistic chance that the state will have an appointed judiciary in the foreseeable future. Even if campaign practices in this year's Supreme Court races raise a stench even worse than the last two elections, incremental reform is the most that is feasible.