Ohio Judge Loses Fundraising Challenge

     (CN) – The Sixth Circuit ruled Monday that the strict limitations Ohio state judges face on fundraising do not violate the First Amendment.
     Colleen O’Toole, a judge on Ohio’s 11th District Court of Appeals, is a candidate in the 2016 Ohio Supreme Court election. She intends to seek the Republican Party nomination.
     O’Toole’s campaign claimed in April that the Ohio Code of Judicial Conduct was doing its best to keep her campaign grounded by prohibiting judicial candidates from personally soliciting campaign contributions unless they are speaking to a general audience of at least 20 people, and by making candidates legally responsible for the actions of their campaign committees.
     The rules also restrict candidates from raising funds earlier than 120 days before the primary election, or from using the title “justice” or the verb “judge” on campaign literature, without identifying the court on which they currently serve, according to court records.
     Since the deadline for filing a declaration of candidacy is 90 days before the primary election, O’Toole claimed in her April lawsuit that “Friends to Elect Colleen O’Toole will only have a 30-day window in which it can solicit and raise funds before Colleen O’Toole will have to file her declaration of candidacy and petition in order to be a candidate for the Ohio Supreme Court in the 2016 Republican primary election.”
     However, sitting Ohio Supreme Court judges may have campaign funds left over from a prior judicial race that they can use to support their candidacy at any time, O’Toole said.
     Chief Justice O’Connor, for example, spent almost $25,000 in 2012 and 2013, even though she was not permitted to receive campaign contributions during these years as she was not running for office, the lawsuit states.
     According to 2014 campaign finance reports, O’Connor’s campaign has $52,000 prepared to spend on her upcoming campaign. Another candidate, Patrick DeWine, has $245,000 in ready funds.
     But the Sixth Circuit affirmed the code of conduct Monday, three months after a Southern Ohio district court denied O’Toole and Friends to Elect Colleen M. O’Toole’s temporary restraining order and preliminary injunction motion. The campaign committee alone appealed that ruling.
     Earlier this year, the U.S. Supreme Court ruled in Williams-Yulee v. Fla. Bar that states may bar judicial candidates from direct, personal solicitation of campaign funds, due to the state’s interest in maintaining public confidence in the integrity of the bench, without violating the First Amendment.
     “Plaintiff contends that defendants’ stated interest applies only to the direct solicitation of contributions by a judge herself, and not to solicitation or receipt of contributions by a judicial campaign committee. This argument is unavailing, and despite plaintiff’s assertions, Williams-Yulee simply does not stand for this proposition,” Judge Eric Clay wrote for a three-judge panel.
     The Cincinnati-based appeals court also held that the judicial campaign rules are not the cause of the disparity that O’Toole’s campaign committee complains of.
     “Plaintiff’s candidate 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.

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