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Court rules restrictions on contributions to judicial campaigns are constitutional

ANNIE YAMSON
Special to the Legal News

Published: October 9, 2015

A federal court of appeals recently ruled that restrictions on when judicial campaigns may solicit and receive funds do not violate any constitutional laws.

A panel of three judges in the 6th U.S. Circuit Court of Appeals held, in an opinion authored by Judge Eric Clay, that the U.S. District Court for the Southern District of Ohio at Columbus did not err when it refused to grant a preliminary injunction to Friends of Colleen M. O’Toole, Judge O’Toole’s judicial campaign committee.

O’Toole, who currently serves as a judge on the 11th District Court of Appeals, publicly announced her intention to run for election in 2016 for one of the three contested seats on the Ohio Supreme Court.

She is seeking the Republican Party’s nomination at the March 2016 primary.

Once her campaign committee was formed, O’Toole and the committee brought a lawsuit challenging certain regulations relating to judicial elections, specifically, those that place temporal limits on judicial candidates’ and judicial campaign committees’ solicitation and receipt of campaign funds.

In Ohio, the Code of Judicial Conduct’s Rule 4.4.(E) prohibits candidates from personally soliciting campaign contributions, but does permit them to establish a committee to manage and conduct a campaign.

The rule also restricts the timing of a campaign committee’s solicitation and receipt of campaign contributions to “120 days before the first Tuesday after the first Monday in May of the year in which the general election is held.”

A candidate may begin contributing her own, personal money to the campaign 210 days before the primary election.

In the district court, O’Toole and her campaign committee challenged the constitutionality of the campaign finance restrictions via a complaint that named as defendants Chief Justice Maureen O’Connor of the state Supreme Court, Richard Dove, director of the high court’s Board of Professional Conduct, and Scott Drexel, disciplinary counsel of the Ohio Supreme Court’s Board of Professional Conduct.

The same day that the complaint was filed, O’Toole and the committee filed a motion for a temporary restraining order and a preliminary injunction with respect to Rule 4.4(E), but the district court held a hearing and ultimately denied the motion.

O’Toole did not personally join the appeal to the 6th Circuit court, but her campaign committee argued that Rule 4.4(E) violates the First Amendment’s free speech rights and the Equal Protection Clause of the 14th Amendment.

“In particular, plaintiff argues that Rule 4.4(E) violates the First Amendment by unconstitutionally restricting campaign committees’ core political speech,” Clay wrote. “Plaintiff further argues that the rule violates the 14th Amendment’s Equal Protection Clause by disadvantaging campaign committees with ‘little to no’ retained funds, and by treating judicial campaign committees differently than other political organizations.”

According to the Supreme Court and the Code of Judicial Conduct, “the interest served by Rule 4.4(E) is the state’s interest in judicial impartiality, judicial independence and judicial integrity.”

The appellate panel noted that “the First Amendment requires that a judicial election regulation be narrowly tailored, not that it be perfectly tailored.”

“As the Supreme Court explained, ‘the impossibility of perfect tailoring is especially apparent when the state’s compelling interest is as intangible as public confidence in the integrity of the judiciary,’” Clay wrote.

In other words, the court of appeals held that the time restrictions imposed on judicial campaign committees’ solicitation of funds restrict only a “narrow slice” of free speech.

It noted that candidates are free to engage in other campaign activities — “attending political functions, marching in parades and making speeches about their candidacy” — that allow them to freely exercise their rights to free speech.

Additionally, the reviewing court held that judicial campaign finance restrictions do not violate the Equal Protection Clause of the 14th Amendment.

The campaign committee argued that campaigns with fewer “retained funds” are at a disadvantage because richer campaign committees have money to spend in the time period that they are not allowed to solicit funds.

The appellate panel admitted that Rule 4.4(E) may have an effect on those who have never run for judicial office because those candidates could not have retained any funds in a prior election cycle.

However, it noted that O’Toole and her competitors are all sitting judges who have previously stood for election.

“Because the complained-of differential effect arises not from any lack of equality in the rule itself, but rather from how different candidates have acquired, used and husbanded their resources in previous campaigns, we agree with the district court that plaintiff failed to demonstrate a likelihood of success as to its first Equal Protection argument,” Clay wrote.

The court of appeals also held that the “unique nature” of judicial elections and the “compelling interest” in maintaining integrity and impartiality, does in fact differentiate them from other political campaigns, therefore, they are subject to different rules.

Citing the U.S. Supreme Court, Clay wrote, “States may regulate judicial elections differently than they regulate political elections because the role of judges differs from the role of politicians.”

The 6th Circuit court ultimately ruled that Rule 4.4(E) exists to serve the integrity of judicial campaigns and it sided with the district court’s ruling that an injunction would have “upset the fundraising system Ohio has implemented for judicial elections and would risk eroding public confidence in the independence of the judiciary.”

Judges Danny Boggs and Bernice Donald joined Clay to affirm the judgment of the district court and the Code of Judicial Conduct’s judicial campaign fundraising restrictions.

The case is cited O’Toole, et al. v. O’Connor, et al., case No. 15-3614.

Copyright © 2015 The Daily Reporter - All Rights Reserved


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