Speeches
Chief Justice Thomas J. Moyer
Speech to the Ohio State Bar Association (OSBA) on Campaign Reform
May 16, 2002
President Trapp,
Thank you for the invitation to participate in the annual meeting of the Ohio State Bar Association. You and the Board have enjoyed a very productive year. I express the wishes of all of the justices of the Supreme Court for your continued contribution to the administration of justice in Ohio. I pledge a continuing constructive working relationship to Steve Chappelear and all active members of the Association.
During the past two and one-half years, I have been exposed intensely to symposia, discussions, debates and journal articles concerning judicial selection and the conduct and funding of campaigns for judicial office. My message to you today is a product of all of that and my fervent belief that a truly independent judiciary is the rock upon which our democratic institutions rest.
To begin, I urge you to think of another gathering….one that took place 200 years ago.
In 1802, 35 men came together in Chillicothe to create a framework for what would soon become the state of Ohio. Writing our first constitution was a daunting task; a noble effort to carve a state from the unsettled lands of the Northwest Territory. But many years later, our first constitutional convention would come to be called "the greatest, as well as the most picturesque episode in the history of our state."
As with previous state and federal conventions, the framers of the Ohio Constitution vigorously debated issues such as slavery and suffrage….and the authority to be granted each branch of government.
In view of the sharp differences and heated debate, a historian wrote that the convention was a "theatre of intellect; the only weapons were tongues and pens, but they were directed by men who for brains and bravery are worthy of every tribute of admiration and respect that the people of Ohio can today bestow upon them."
But despite their courage and intellect, the framers of the Ohio Constitution made choices that, in hindsight, appeared doomed.
Power was concentrated in the General Assembly….as the governor had no veto authority and the legislature had complete authority to appoint appellate and trial court judges. The first constitution also did not expressly grant the courts the authority of judicial review.
The historian Daniel Ryan wrote that the authority of the legislature to appoint judges made judges "the tools of politicians." He added:
"The result of the operation of this plan was to involve the judiciary in politics, and in after years, gave rise to scandal and intrigue."
Impeachment and threats of impeachment were an accepted form of political retribution for an unpopular court decision. After one dispute the General Assembly went so far as to fire all the judges in the state….only to replace them with political supporters.
It was readily apparent that the courts were weak and dependent; that judges were looking over their shoulders before making a judicial decision.
Ohioans, as citizens in many states, called for change, and in 1851 amended the Constitution to require that all judges be elected.
Intuitively, the citizens recognized that an independent judiciary was necessary to withstand the tyranny of an autocracy, and the brute force of an unchecked majority.
As Chief Justice William Rehnquist has said…..judicial independence is "one of the crown jewels of our system of government."
Yesterday afternoon I delivered to the leadership of the Ohio General Assembly and the Governor my proposal for the creation of a legislatively created commission that would review the processes used in the 50 states for selecting judges of the highest courts and all appellate courts.
The commission would be appointed by the Governor, the Chief Justice and the leaders of the General Assembly. It would be bipartisan and would include judges, legislators and representatives selected by the three major labor organizations, representatives of the business community, organizations devoted to voter and civic education, the Chairs of the Republican and Democratic parties and the Ohio State Bar Association.
The second task of the commission would be to review the qualifications for judicial office in Ohio and other states and recommend revisions designed to enhance the minimum requirements of persons seeking any judicial office.
I continue to hope and believe that some day the citizens of Ohio will become convinced that changing the process by which we select appellate judges and, in particular, Supreme Court justices, will create more confidence in the impartiality and independence of the judiciary. But that day is not yet here. The question is, "What should be done in the interim? What changes to the current system would enhance the perception that all courts in Ohio serve their critical role in our democracy-that they reflect the fundamental principles from which courts are created?"
I propose eight actions that I believe will move us toward that goal; consider them a catalyst to serious deliberation.
- 1. Ohio should change the length of the term of office for all judges to at least eight years. 55.4% of all state court appellate judges serve terms of more than six years. The terms of judges of courts of last resort in 35 states are more than six years. Longer terms would achieve the appropriate balance between independence and accountability, reduce the frequency of fund raising and increase the number of qualified potential candidates.
- 2. The six-year practice requirement should be increased to at least 10 years for trial courts and some number of years in excess of 10 years for appellate courts and the Supreme Court.
- 3. Adopt the American Bar Association's Standards on Judicial Qualifications that would call for judicial candidates, whether elected or not elected, to submit their qualifications to a broad-based committee that would assess the candidate's legal knowledge, experience and character. This would serve to assure the public that judicial candidates have the legal knowledge, experience and temperament to serve as a judge. Some voters acknowledge that in deciding between two judicial candidates, they flip a coin. With the creation of qualification committees, the voters win-heads or tails.
- 4. We should do more to inform voters about the candidates. A number of states provide judicial voter guides at no cost to the candidates in print and electronic form. Congress should provide a free federal mailing frank for these guides. Mailing costs represent 1/3 of the total cost of distribution of such brochures. The electronic media, which is responsible for most of the cost of statewide judicial races, should with other groups, sponsor candidate forums, which would be broadcast on tv and over the Internet.
- 5. The General Assembly should adopt legislation that would require individuals and organizations who contribute significant amounts of money to unauthorized, so-called independent campaigns to publicly report their contributions. Considerable research and at least two national symposia have been devoted to the challenge of adopting such legislation in view of the decision of the U.S. Supreme Court in Buckley v. Valeo. There is compelling public interest in narrowly tailored disclosure to assure that when major campaign efforts are mounted with large sums of money, the public is informed regarding the identity of the contributors.
I propose that the legislation provide that if an organization expends an aggregate of $10,000 on a judicial campaign, the names of individuals who contribute $500 or more to the organization, and the names of groups which contribute at least $2000 to the organization, should be publicly reported. Such legislation should be concerned only with well-funded, organized efforts to affect elections.
- 6. The General Assembly should adopt H.B. 201 sponsored by Representative Ann Womer Benjamin that would require the reporting of contributions to judicial campaigns with a frequency that is compatible with technology in the Secretary of State's office. At a minimum, we should require that as of September 1st of a campaign year, any contribution of more than $200 to a campaign for a candidate for the Supreme Court should be electronically reported to the Secretary of State within two business days of receipt by a campaign treasurer.
- 7. At national conferences and in journal articles, Ohio has received high praise for its adoption of unofficial campaign conduct committees, such as the committee sponsored by the Columbus Bar Association. Such committees are highly effective in causing candidates for judicial office to agree to submit their advertising materials to the committee prior to publication and broadcast, and to be bound by the decision of the committee with respect to the appropriateness of the advertising.
In a few moments you will hear from President-Elect Steve Chappelear about an important development upon which he and I have been working that will reflect the commitment of the Ohio State Bar Association to informative, credible campaigns for the Supreme Court. I am very heartened by the announcement Steve will make.
- 8. Public Funding. Finally, if we are to retain the political elective system for selecting justices of the Supreme Court, we should seriously consider full public funding of those elections. Five years ago, such a proposal would have been no more than wishful thinking. Today, it is receiving the attention it deserves even though it is not practical to believe that it could be adopted until the state budget difficulties are behind us.
Despite our inclination to believe otherwise, national surveys such as those conducted by the National Center for State Courts and the more recent Greenburg, Quinlan, Rosner research survey, confirm that at least 75% of the persons polled believe that judicial decisions are influenced by campaign contributions. The Greenburg poll revealed substantially higher levels of public cynicism in states with elected judges on questions like whether judges make decisions based "more on facts than law" or more on "politics and pressure from special interests" and whether everyone is treated equally by the courts.
The most important value of courts in a country that lives by the rule of law-trust and confidence-is being diminished by the raising and spending of money. Until we change the constitutional process by which justices are selected, we should change the practical realities of judicial campaigns.
The Greenburg poll, as others, shows widespread public support for public funding of judicial races:
- 81% are for it and 77% would favor eliminating any private contributions in such a system.
- Even 61% of 2400 state judges and 57% of Ohio judges expressed support for full public funding.
To be sure, there seems to be a gap between the idea and practical application.
Attempts at funding judicial races in states such as Wisconsin and Maine have not been successful. Perhaps Ohio can once again serve as a model.
May we heed the advice of Thomas Jefferson, who wrote to a fellow Virginian, Samuel Kercheval, in a letter in 1816 that:
"Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times."
In the following century, Winston Churchill observed that men (Churchill was politically astute, but seldom politically correct) frequently stumble over the truth, but too often they pick themselves up and hurry off as if nothing had happened. The truth is that circumstances have changed since 1851.
The election of judges in 2002 no longer ensures the independence…. and the perceived impartiality…. of the judiciary. Campaign fundraising has created the misperception that fairness comes at a price.
But one truth is strikingly similar to an old one….that the rule of law requires an independent judiciary, a judiciary that represents in all ways the fundamental principles of the American system of justice. The truth is that the institution must advance.
Let us not hurry off as if nothing had happened.