Last June, in a cleverly calculated political pseudo-event, Governor Bob Taft and his sidekick Secretary of State Ken Blackwell announced their long awaited “campaign reform proposal.” Their rhetoric stressed the importance of achieving “full public disclosure” of anonymous money flowing into Ohio political parties as well as electioneering communications. Still, Ohio does not require that political parties disclose of money, even corporate money, coming into their coffers.

The question of whether “electioneering communications” can be kept private however, is under litigation in Ohio. Both the Ohio and U.S. Chambers of Commerce asserted their right to run so-called “issue ads” that looked a lot like attacks on judicial candidates in the 2000 election. as long as the ads bogus “issue ads” focused on smearing judicial candidates, but never mentioned “magic words” like “vote for,” “elect,” “support” or “defeat” any specific candidate.

Public interest advocate and attorney Cliff Arnebeck recently told the Cincinnati Urban League that, “Bob Taft and Ken Blackwell’s response to the pending corporate attempt to take over Ohio’s judiciary is to propose legislation to decriminalize and welcome unlimited corporate money for electioneering ads.”

In Arnebeck’s analysis, “Taft and Blackwell want to deregulate elections the same way Enron deregulated energy. Their approach to reform is the exact opposite of the way the bipartisan McCain-Feingold reform bill addressed the phony issue ads.”

The Chambers invoked the right to use anonymous and unlimited corporate dollars to bend the judicial branch to its will. With Governor Taft’s help, the Chamber raised an estimated $7 million to run ads attacking Democratic Party endorsed candidates for the Ohio Supreme Court. The most memorable theme of the ads were that Justice Alice Robie Resnick had sold out to Big Labor and trial lawyers. Both of these interest groups routinely disclose their contributions. The Chamber, on the other hand, ran these ads masking itself as a “good government” group.

The Chamber cites a footnote in the Supreme Court case Buckley v. Valeo as justification for its stealth campaign. A petition for certiorari is pending before the U.S. Supreme Court seeking review of a Fifth Circuit decision overruling the Mississippi District Court which had rejected the U.S. Chamber’s argument in that state with respect to less negative but otherwise similar ads.

The Taft-Blackwell bill, introduced on August 22 as SB 291 and in the House as HB 632 on September 12, 2002, in proposed new section 3517.1011, requires that all contributions and expenditures for electioneering communications, defined as any ads which mention a candidate within 60 days of an election, be disclosed. So far, this tracks with McCain-Feingold’s approach to the phony issue ad problem. However, where McCain-Feingold proceeded to require that any such ads be funded with hard dollars, i.e., those raised from individuals subject to the PAC and individual limits on contributions (no corporate money permitted). The Taft-Blackwell proposal would remove all limits on who could fund such ads and how much they could contribute. “This would decriminalize what the Chamber did to Justice Resnick in the 2000 election, even if the Chamber loses on its extreme magic words argument in the pending litigation,” says Arnebeck, one of the attorneys in that litigation.

The key language, which neither Blackwell nor Taft discussed in their presentations and releases concerning the bill, is the statement in paragraph (D) of that section that, “notwithstanding any other provision of Ohio law, any person or entity may make gifts under this section.” That single stroke overrides almost 100 years of law designed to keep corporate money out of candidate elections.

Ohio law already requires disclosure in section 3517.01(B)(8) and 3517.10(D) of any fund intended primarily or incidentally to influence an election, but state officials: particularly the Secretary of State Ken Blackwell and the Ohio Elections Commission, in the 2000 election, using the votes of the Republican members and an “independent” (a former partner in a law firm which represented the Ohio Manufacturers Association and Ohio Chamber of Commerce) refused to enforce this law against the Chambers. However, with this new language, the Chambers get through legislation what they have been seeking in the courts: the right to use unlimited amounts of corporate money to influence candidate elections through their own advertising campaigns, a right asserted and rejected in Austin v. Michigan Chamber of Commerce, 494 US 652 (1990), in an opinion written by Justice Thurgood Marshall with a 6-3 majority.

The outcome of this case will affect campaign regulation at the federal, state and local level even if the Republican Governor Taft and the Republican controlled Ohio Legislature moot the issue in Ohio by legislation.

The purpose of this new disclosure bill, in Arnebeck’s view, was to provide cover for the business/political strategy in play. “On the one hand, it gives assurance to the good government types that ultimately, (once the takeover of the Ohio Supreme Court has been completed) those pursuing the strategy would implement public disclosure of corporate contributions to parties and election campaigns. On the other hand, it gets Taft, Blackwell and Finan firmly and publicly committed to complete legalization of the forms of unlimited corporate funding of elections needed to maintain control of the government. Speaker Householder was already locked in by his role as a principle fundraiser of corporate money in the Brennan group’s (“Informed Citizens of Ohio”) disclosed project of raising secret corporate money in the 2002 election for the unfinished business of capturing control of the Ohio Supreme Court,” said Arnebeck.

Anyone skeptical that a takeover strategy of this aggressiveness would be in play for control of a mere state should be reminded that Ohio, and particularly Cincinnati, is the home base of Carl Lindner, a man who appreciates and enjoys the benefits government ownership, in a capitalist rather than socialist sense, at the national and international levels. Further, what is being rolled out is a strategy that has previously been employed in Michigan insofar as the control of the Supreme Court is involved. Preceding the 2000 election the expert from Michigan had told the Ohio Chamber how it could be done if you are willing to “play dirty.”

Furthermore, Bob Bennett, Chairman of the Ohio Republican Party may try to capitalize on this by offering the technique around the country in strategy consulting with some of his former colleagues. Thus, all juices are flowing for those who own and operate governments as a business. Because Maureen O’Connor holds statewide office as Lt. Governor and Justice Stratton is an incumbent on the Ohio Supreme Court, capturing the court this time should be a cakewalk. Judges Tim Black and Janet Burnside, the Democratic candidates serve on the Cincinnati Municipal and Cuyahoga County courts, respectively. Their supporters would have to go negative to draw the distinctions necessary to an understanding of the public interest issues which are at stake, in this discussion of what “business friendly” means in this context for school funding and the right to trial by jury.

A key part of the Chamber/Republican strategy is not to let anything fall apart at the Ohio Elections Commission, the way it did in 2000. Under the spotlight of the statehouse press corps and public interest groups Commissioner Connelly, a former U.S. Attorney, switched his vote and on the day before the election and the Ohio Elections Commission found probable cause that the Chambers had violated Ohio’s criminal statutes. This was widely reported on Election Day and contributed to a major shift from pre election polls to the poll that counts, in which Justice Resnick won a dramatic reelection victory.

Each Republican on the current board has, no doubt, been carefully vetted and prepped. The Democrats have been inoculated with legal advice that there is nothing they can do, particularly now that they are in litigation on these sophisticated First Amendment issues. And Warren Tyler, the current ”independent” is a man who, as the top State of Ohio watchdog over Ohio banks, resisted his staff’s urging to intercede in Marvin Warner’s shenanigans with Home State Savings and Loan, the biggest financial scandal in Ohio politics so far. Tyler is a business-friendly former Democrat, and therefore less susceptible of being linked to a partisan Republican takeover scheme.

The lingering litigation in the courts is not a problem, with this strategy in place. While an oral argument is scheduled for October 29, 2002, in the Tenth District Court of Appeals, a decision is unlikely before the election. Furthermore, whatever happens in court is scheduled to be preempted by the passage of the Taft-Blackwell election legislation following the election.

Of course, if Ohio voters understood what the Chamber was doing and how Republican officials, also up for election this time, were helping them, it could, like the last time this strategy was tried, backfire.

Arnebeck called the disclosure bill a “proposed coup against the democratic process.”

“Our nation was born out of a fight by ordinary citizens against what was then the greatest empire on Earth. It may take more such fights to maintain democracy in the face of an unprecedented corporate crime wave . . .” Arnebeck concluded.

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