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Panel Upholds Anti-Resnick Ad

BY Alan Johnson and James Bradshaw
by Alan Johnson and James Bradshaw on 10/20/00.

A TV ad bashing Ohio Supreme Court Justice Alice Robie Resnick is legal because it is educational -- not political -- an Ohio Elections Commission panel ruled yesterday.

Thus, although the ad might be "treacherous,'' it is protected by the First Amendment guarantee of free speech.

Because the ad is educational, the group bankrolling it can legally obtain unlimited amounts of contributions, including cash from corporations, and never divulge where the money is coming from or how it's spent.

Common Cause-Ohio, the watchdog group that filed the complaint against the pro-business Citizens for a Strong Ohio, said it will either seek a vote by the entire seven-member commission or go to Franklin County Common Pleas Court in an attempt to reverse the ruling.

"That money is coming in and having an impact,'' Common Cause-Ohio spokesman Ray Cadwallader said. "This opens a door that we don't like.''

Much of the money flowing into the effort to unseat Resnick is being funneled into a secret fund controlled by the Ohio Chamber of Commerce.

Some of the money is being generated by Gov. Bob Taft, who apparently used his state office to solicit for the fund in at least one instance.

Taft recently called an Ohio business group seeking a contribution for Citizens for a Strong Ohio. He left the telephone number of Jean Booze, his executive assistant, for a return call, a source familiar with the business group told The Dispatch.

In response to Taft's solicitation, the group eventually made a substantial contribution to the anti-Resnick campaign.

Mary Anne Sharkey, Taft's communications director, said that to her knowledge, the governor does not make fund-raising calls on his state phone.

"His practice is to make calls from his campaign office or, if he's on the road, he will sometimes go to a private office,'' Sharkey said.

However, Sharkey acknowledged that Taft "may have taken some return phone calls (regarding fund raising) because we don't screen calls from people he knows.''

Ohio law is silent on the legality of the governor using his state office to raise money for a nonprofit corporation such as Citizens for a Strong Ohio, said Carlo LoParo, spokesman for Secretary of State J. Kenneth Blackwell.

"It would be similar to raising funds for the American Cancer Society,'' LoParo said.

The law is clearer on overt political fund raising: State employees are prohibited from using state offices or phones to raise money for candidates, political parties or political-action committees. However, even that law is fuzzy as it applies to state officeholders, LoParo said.

Citizens for a Strong Ohio is airing an estimated $ 3 million ad campaign statewide criticizing Resnick, a Democrat seeking re-election on Nov. 7, and praising her Republican opponent, Judge Terrence O'Donnell of the Cuyahoga County Court of Appeals.

As a nonprofit corporation -- and not a campaign or political action committee -- the group is not required to report its contributions or expenditures.

Attorney Robert Todd argued that Citizens for a Strong Ohio was within its constitutional rights to air the critical ads because they do not endorse or oppose a specific candidate.

"I think we understand as Americans we do not want our freedom of speech limited,'' Todd said. "I'm not here to talk about the truth or falsity of the ad.''

The commission's probable-cause panel agreed with a 2-1 vote and dismissed the complaint. The panel could have sent the matter to the full commission for consideration.

"That is a treacherous ad. I don't like it,'' said panel member Norton Webster, an independent. "But they are within their rights to say what they want to say.''

The Democratic member of the panel, Dale W. Bayer, cast the lone vote against dismissal. He said Citizens for a Strong Ohio "overstepped their bounds.''

"Somewhere along the line, somebody has to put a stop to one of these ads, '' Bayer said.

Republican William D. West, the third panel member, cast his vote clearing the ad without comment.

Attorney Don McTigue, representing Common Cause-Ohio, argued that the average person viewing the ad would assume it opposed Resnick's candidacy.

The ad shows a blindfolded lady justice holding scales filled with money, says Resnick received $ 750,000 in campaign contributions from trial lawyers and asks, "Is justice for sale in Ohio?''

McTigue said such third-party advocacy ads, if allowed to continue, would " eviscerate Ohio's campaign-finance laws.''

Resnick yesterday condemned the ad and its backers as the court went on break until after the election.

"Now that we have recessed,'' she said, "I will comment on the vicious attack ad being aired against me. Special interests are attempting to distort my record without disclosing their contributors. Their charges are irresponsible and completely untrue.''

Resnick said she has maintained high standards of ethics and impartiality for 36 years, including almost 12 on the high court, and has the record to prove it.

"Suggesting that I am or ever have been influenced by campaign contributions is simply not true,'' she said, challenging those behind the ad to "come clean'' and disclose their own contributors.

Business, hospital and insurance interests came together to oppose Resnick's re-election because of several 4-3 decisions in which she was among the majority justices, including two rejections of efforts by the General Assembly to impose limits on damage awards in civil suits.

The so-called tort-reform effort to limit damages is a nationwide movement, which was evident in endorsements issued yesterday by the U.S. Chamber of Commerce's Institute for Legal Reform.

The institute endorsed O'Donnell and Justice Deborah L. Cook, who voted with the minority to uphold tort reform.

And another national organization, Citizens for a Sound Economy, is mounting a ground war against Resnick.

Jason Gross, Ohio director for the group, said it will organize grass-roots support through speaking engagements and literature distribution at fairs and festivals.

"We have a shark for a mascot,'' Gross said. "He's 'Sharkman,' and he tells the people how some greedy trial lawyers are costing consumers and taxpayers a lot of money. Actually, he's a reformed trial lawyer who has come over to our side.''

Gross said the organization is not critical of the majority of lawyers, only "elite trial lawyers'' who pursue multimillion-dollar suits to line their pockets.

"We won't be spending any money on television or radio ads,'' he said. " We 're a grass-roots organization.''

The Ohio State Bar Association will hold a news conference today to denounce the Citizens for a Strong Ohio ad as demeaning to the legal system.

Reginald S. Jackson Jr., president of the association, said he finds the ad objectionable regardless of free-speech rights.

"I'm a proponent of the First Amendment, but I'm not a proponent of people saying things without information to back them up,'' he said. "It is an attack on the integrity of the Supreme Court and our entire judicial system. The intent of the ad says, 'Yes, justice is for sale.' ''

Jackson said that if anyone has evidence of a justice casting a vote because of a campaign contribution, it should be investigated officially, but that if there is no such information, the ad should be stopped.

"Our intent is not to take sides for any candidate. Our objection is as it relates to the judicial system,'' he said. "I think you have a right to know who is saying what and whether they have a special interest.''