Legal Library

Suster v. Marshall


This case involves rules of the Ohio Supreme Court which place reasonable limits on total campaign expenditures in elections for judicial office in Ohio. The current limits are set forth in Canon VII(C)(6)(a) of the Code of Judicial Conduct of the Ohio Supreme Court. The Ohio Supreme Court adopted these expenditure limits in response to the serious threat to public confidence in the judicial system caused by ever-increasing spending in judicial campaigns. This spending and the resultant dominance of money in determining judicial election outcomes have created an intolerable public perception of "justice for sale," as amply documented by survey research and other evidence before the Ohio Supreme Court.

A federal district court found that the spending limitation was unconstitutional under the Supreme Court's majority decision in Buckley v. Valeo. On appeal to the U.S. Court of Appeals for the Sixth Circuit, the Ohio Supreme Court argued that its campaign spending limits were justified by a new compelling governmental interest in preserving the impartiality and appearance of impartiality of the judiciary. In July, 1998 a three-judge panel for the Sixth Circuit struck down the judicial campaign spending limits on free speech grounds. The Sixth Circuit ruled that the prevention of corruption or the appearance of corruption is the only compelling state interest which the U.S. Supreme Court has recognized as justifying limits in the campaign financing of our public elections.

On October 28, 1998, the Ohio Attorney General's Office, representing the Ohio Supreme Court, filed a petition for review of the Sixth Circuit's ruling with the U.S. Supreme Court. This case presents the nation's highest court with another opportunity to revisit its 1976 majority ruling in Buckley v. Valeo. As emphasized in our petition for Supreme Court review in City of Cincinnati v. Kruse, the Court in Buckley v. Valeo left the door open for the presentation of new and different compelling governmental interests which justify campaign spending limits. A close reading of Buckley v. Valeo demonstrates that the Supreme Court found the corruption and appearance of corruption interest to be the only compelling interest, but only among those actually presented in that case. "No governmental interest that has been suggested is sufficient to justify [the congressional campaign spending limits]." Buckley v. Valeo, 424 U.S. 1, 55. The interest of protecting the impartiality and the appearance of impartiality of a state judiciary was not presented to or addressed by the Supreme Court in Buckley v. Valeo.

On December 7, 1998, the Institute filed an amicus brief in Suster v. Marshall on behalf of the many secretaries of state and chief elections officers from across the country who share the view that the time has come to revisit the majority opinion in Buckley v. Valeo. The Institute's brief focuses primarily on the argument that, if Buckley v. Valeo does apply to judicial campaign spending limits, the basic premise of that case should now be reconsidered in light of new facts and the governmental interest in protecting the impartiality and the appearance of impartiality of elections. The brief also supports the argument of the Ohio Supreme Court that judicial elections are distinguishable from legislative elections and that judicial campaign spending limits are constitutionally justified as a narrowly tailored means of protecting the impartiality and the appearance of impartiality of the state judiciary. The Supreme Court denied the cert petition in this case. Suster nevertheless served as another important opportunity to educate the Supreme Court on the need to revisit its 1976 ruling in Buckley v. Valeo. The questions raised by the Suster case, particularly those which focus on the dangers of private financing of judicial election campaigns, will continue to gain attention in the growing movement for change of our campaign finance system. We intend to continue our leadership in highlighting these dangers and in serving as expert counsel in new litigation, which may emerge, related to money in judicial elections.