Commission Created and Important Cases Decided
The Ohio Elections Commission was created in 1974 as a result of the circumstances surrounding the Watergate affair in the early 1970's. Similar to the Federal Elections Commission, the Ohio Commission was created as a means of enforcing the state's campaign finance and fair campaign practices laws. The Commission was originally composed of five (5) members who were appointed by the Secretary of State upon recommendation by the respective Chairmen of the Democratic and Republican parties. Two members each were affiliated with the respective parties. The fifth member of the Commission, who acted as the chair, was affiliated with either the Democratic or Republican party on an alternating basis.
During this period of time, the Commission decided thousands of cases, some of which have had a lasting impact on politics both in Ohio and across the country. The Commission decision that had the greatest effect on America's political landscape during this period of time occurred in 1989. Margaret McIntyre was circulating campaign materials against a school levy in Westerville, Ohio. On those materials, Mrs. McIntyre made her point but merely placed the phrase, "THANK YOU, CONCERNED PARENTS AND TAX PAYERS" on the pamphlet as an identifier for the responsible party. Mrs. McIntyre did not include the political disclaimer required by the pertinent statute and the Commission found the materials in violation of the statute and imposed a fine of $100. Mrs. McIntyre appealed the Commission's decision and in 1995 the United States Supreme Court handed down a decision which declared Ohio's disclaimer law unconstitutional. The holding of the court was that the statute deprived Mrs. McIntyre of her constitutional right to anonymously involve herself in political debate. Along with Ohio, many other states were required to re-write their political disclaimer statutes to reflect an individual's right to remain anonymous in their political discourse.
Shortly after its creation, the Commission's jurisdiction was challenged after a complaint was filed in a case involving the campaign for the office of Greene County Prosecutor. A complaint was filed against then candidate for Prosecutor, Mike DeWine. After a finding was issued by the Commission and the matter forwarded for further prosecution, the decision was appealed by Mr. DeWine. The court upheld the constitutionality of Ohio's false statement statutes and identified the Commission's role in such proceedings as "somewhat similar to that of a grand jury in felony cases," while the "purpose [of the statute] is to prevent the promiscuous filings of criminal charges in court during the heat of a political campaign, requiring instead that a preliminary determination be made by the Ohio Elections Commission prior to the commencement of any prosecution." DeWine v. Ohio Elections Comm., 399 N.E.2d 99, 104 (1978).
Another matter decided by the Commission during this period of time which has had a continuing effect on the Commission's operations involved an election for County Commissioner in Trumbull County. During the 1984 election, the Commission found that certain statements in Walter Pestrak's campaign materials were false. Mr. Pestrak appealed this decision through the Federal Court system. Eventually, the Sixth Circuit Court of Appeals also decided that the Commission could continue to enforce Ohio's false statement statute and that the statutes were constitutional, but that the Commission could not impose fines for such violations, nor could it issue cease and desist orders, since such a power is an unconstitutional prior restraint of free speech. In addition, the Court concluded that the Commission must make such findings only if the evidence of such a violation was by clear and convincing evidence, the standard required by Supreme Court decisions in the free speech arena.
Campaign Finance Reform, and the Restructuring of the Commission in 1995
Aside from minor tweaking, there were no major reforms in Ohio's campaign finance laws in the period from 1974 through 1995. Along with the major reforms in the campaign finance laws of 1995 and the imposition of campaign contribution limits into Ohio's political culture, the Ohio Elections Commission was reformulated in 1995, and reestablished as an independent government agency in the state of Ohio as of January 1, 1996. The Commission was reconstituted as a seven member body. Six members (three members from each major political party in Ohio) were to be appointed by the Governor upon recommendation by the Democratic and Republican caucuses of the General Assembly. By statute, the seventh member could not be affiliated with either major political party and was to be appointed by the six partisan members of the Commission.
As a part of the changes made to the Commission in Senate Bill 9 of the 121st General Assembly, Commission members are now paid an annual salary of $25,000 and cannot be otherwise affiliated with or make contributions to any political campaign, or a political party during their tenure on the Commission. The Commission was also empowered to employ its own staff, including its own legal counsel. These staff changes allow the Commission to operate independently from any other elected officer so that there are no potential conflicts of interest while addressing campaign related questions and issues.
In addition to these changes, there were also procedural changes in the Commission's operations. The Commission received specific authority to hear cases on an expedited basis. In this way, some decisions may be made prior to the election. Prior to being granted this authority, false statement cases filed with the Commission would not have been heard prior to the election. It was often typical for a candidate to have a press conference and announce that they were filing a complaint 10 days to 2 weeks prior to an election, then file the complaint asking for it to be expedited knowing that the Commission would not grant the request. The candidate would then quietly withdraw the case after the election. Now with the mandatory expedited process, the Commission reviews a case within three days of when a complaint is filed and the complaint is at least given a preliminary review by a panel of the Commission to determine the merits of the complaint, and decide whether it deserves consideration by the full Commission.
In order to specifically address the issues raised in the Pestrak decision, the General Assembly included a specific requirement that all findings in false statement cases be made by the legal standard of "clear and convincing evidence," while all other matters may be proved by a showing of the preponderance of the evidence. Also, the Commission was specifically precluded from imposing fines in a false statement case, while the Commission retained the ability to forward such matters for further prosecution. In addition, the Commission can find that there is good cause present not to refer a matter for prosecution but simply allow the finding of a violation to serve as the appropriate penalty.
The Commission handles between 800 and 1000 complaints filed with it in a year from three (3) sources: one of the 88 County Boards of Elections, the office of the Secretary of State, or from individual upon the submission of an affidavit of complaint based on personal knowledge. The vast majority of these matters deal with candidates, campaign committees, political action committees, or corporations that are either late in filing or fail to file the required campaign finance reports. The remainder of the cases concern whether someone did or did not include a disclaimer on their political literature, corporate activities in the political arena, or the inclusion of allegedly false statements in campaign materials. In addition, the Commission issues advisory opinions on campaign finance related subjects as requested.
It is false statement cases which raise the Commission's profile and bring it the most attention.
Since its inception as an independent agency, certain cases have raised the Commission's profile. In the statewide election of 1998 the campaign committee for Bob Taft circulated a television commercial which included statements about the manner in which his opponent, Lee Fisher, "cut" certain staff when he was the Attorney General. The Commission found the statements made by the campaign committee to be false and decided to issue a letter of reprimand. With the aid of the expedited process, the Commission both received the complaint and completed the full hearing in the month leading up to the election. This allowed the electorate to consider this as they went to the polls on election day and not have to wait until later for a complete resolution of the case.
In the 1999 general election, two complaints were filed against separate television advertisements in a ballot issue challenge to a TIF, Tax Increment Financing, district in the city of Columbus. Again, using the expedited hearing process, the Commission quickly moved the complaint through the probable cause panel review to a full hearing in the days leading up to the General Election. The Commission found that the television ad which showed a "wealthy developer" being showered with cash contained false statements when it included statements about giving away taxpayers dollars. The case was prevalent in the news in Columbus and was remarkable because the Commission finished the hearing on the Sunday prior to the Tuesday of the general election. The Commission believed that the voters in the area deserved a decision on the matter prior to the election and so accelerated its review of the matter so that a full hearing could be completed prior to the election.
A companion advertisement, which contained essentially the same statements was heard at a later time, and again the Commission found a violation. In the first case the Commission found a violation and issued a reprimand letter. In the second case, the Commission referred certain respondents to the Franklin County Prosecutor for further criminal proceedings. Eventually, the Prosecutor resolved this matter with the defendants and a fine of $10,000, the statutory maximum, was paid.
One of the most damaging elements of the case came forth in the first hearing. Under questioning from one of the Commission members, a former executive with the owner of a rival mall to the one affected by this TIF, was asked whether he had ever been involved in any TIF financing. After acknowledging that he had, he went on to state the he did not consider such financing the same type of giveaway which it was being presented as in the television commercial.
Shortly after the Commission made the decision regarding the Taft campaign, the Commission received a complaint from the office of the Secretary of State alleging that the Governor Paul Voinovich improperly concealed information relating to certain payments made by his gubernatorial campaign committee in 1994. The information that made up the cases came from the United States Attorney and passed through the Franklin County Prosecutor before being addressed by the Commission. The investigation was hampered by the fact that an important party was deceased and another was not talking because of his involvement with the United State Attorney and a federal grand jury investigation. With only one half of the story, getting a full picture of all of the circumstance was difficult. The stories of the various parties shared enough similarities that it was hard to gather sufficient evidence to refute any of the statements made to the Commission. Eventually, the Commission dismissed the allegations against all parties except Michael Anthony Fabiano and certain entities controlled by Mr. Fabiano. The Commission found a violation against Mr. Fabiano and these entities and imposed a fine of $1000.
The Commission was also involved in a lengthy series of cases involving television advertisements which were aired in an election against Supreme Court Justice Alice Robie Resnick. The commercial, aired by the United States Chamber of Commerce and a statewide entity established by the Ohio Chamber of Commerce called into question certain decisions made by Justice Resnick. The ads did not expressly endorse the defeat of Justice Resnick and the first complaint filed with the Commission was dismissed at the probable cause panel review. Subsequent complaints cleared probable cause panel review and full hearings were scheduled before the Commission. An internal debate was waged among the Commission members and the respective counsel for the parties about whether the commercials were actionable. This continued through the election until a majority of members acted on the cases in light of the essential holding of the seminal United States Supreme Court decision in the area of campaign finance, Buckley v. Valeo, 424 U.S. 1 (1976).
The Commission eventually addressed the matters, relying on the difference between issue advocacy and express advocacy identified in Buckley. The final resolution of the Commission identified the commercials as, at their base, express advocacy, and held that the "context of the t.v. ads expressly urged the electorate toward a particular position and expressly advocated a particular position relative to the respective candidates that were involved in the 2000 general election." The Commission also concluded that "the t.v. ads ... do not need to include the 'magic words' in order to expressly advocate and electoral action ...(t)he nature, timing, tone and content of the t.v. ads were patently 'in aid of' [Republican] candidates and 'in opposition to' [Democratic] candidates." A position that was precursor to the Supreme Court's holding in the McConnell decision. All matters that came out of the 2000 election involving Justice Resnick were finally concluded in 2006, making this the longest tenured issue in the history of the Commission
The Future of the Elections Commission
The Commission will continue to play an important role in Ohio's political scene. The nature of campaigning will not change that much in the future. While voters continually state that they do not like negative campaigning, candidates and their handlers believe it works and so they will continue to use it. Results of the recent elections continue to support this proposition.
Some elements of running a campaign will not change. As has happened in the past, campaigns and their consultants will continue to hone their messages in an attempt to work carefully around the Commission. Sometimes they will even plan to use the Commission as a part of their activities. With the Commission's ability to expedite its proceedings, the effect of such tactics will continue to abate unless a complaint is truly meritorious.
While the impact of a Commission decision will continue to be debated, complaints will continue to be filed and the Commission will continue to hold hearings and make determinations as it believes appropriate. Once such decisions are made, the Commission will allow the voting public to determine the true impact of such decision and the outcome of their elections.