Proponent Testimony on S.J.R. 7
by
Charles T. McConville
Managing Director of Political Affairs
Ohio Chamber of Commerce
before the
Senate State and Local Government and Veterans’ Affairs Committee
May 14, 2003

Mr. Chairman, members of the committee, my name is Chip McConville, and I am the Managing Director of Political Affairs for the Ohio Chamber of Commerce. I am pleased to be able to appear today to voice the Chamber’s support for Senate Joint Resolution 7.

With more than 4,500 business members across the state, the Chamber is Ohio’s largest and most diverse business advocacy organization. Over the years, the Chamber has worked diligently to encourage business people to participate in the political process, through discussion of issues, candidate endorsements, and involvement in ballot issue campaigns.

It is also no secret that the Ohio Chamber of Commerce has taken a great interest in the Ohio Supreme Court. In the last five years, the Chamber and its affiliates have undertaken a massive effort to educate business leaders, the press, and the public about the effects of court decisions on the business community, and the records of candidates for the Supreme Court.

Before I begin with the Chamber’s reasons for supporting this legislation, let me take a minute to explain how the organization became so involved in court politics, because it speaks to the fundamental reason a merit selection system should exist: Everyone should have confidence in the impartiality of the judiciary.

In the mid-1990’s, the Chamber began a process of evaluations of significant Supreme Court decisions affecting the business community. These evaluations, performed every two years with the assistance of numerous business attorneys, painted a clear and troubling picture. On issues related to torts, insurance, employment law and workers’ compensation, the Ohio Supreme Court had a clear disposition to rule against the business community. Moreover, legislation designed to make Ohio more competitive was routinely struck down by a 4-3 margin.

By 1998, the Chamber had little reason to believe the Supreme Court was, in fact, impartial. We made a decision to participate in court politics as fully as other interest groups had done in the past, especially organized labor and the plaintiff’s bar. As a political professional, I believe in the rights of every organization to participate in the electoral process in as many ways as possible. From a business organization standpoint, it was clear in 1998 that other organizations were being far more effective in their participation.

But if we are to have true confidence in the impartiality of the judiciary, shouldn’t the selection process insulate judges from interest groups and fundraising? While the Chamber has participated in the process under the current rules, we have consistently believed a merit selection process is the best way to promote an impartial judiciary. We were strong supporters of the merit selection ballot issue (Issue 3) in 1987, and we continue to urge adoption of merit selection by supporting S.J.R. 7 today.

There are four major reasons the Chamber supports S.J.R. 7:

1.
 S.J.R. 7 Preserves the Public’s Right to Vote on Justices in Retention Elections.

Ohio has a long tradition of involving the voting public in selecting its judges and Supreme Court justices. S.J.R. 7 would allow voters the chance to have a referendum on appointed justices two years into their terms, and again if the justice seeks another 10-year term. If an interest group believes a justice is too extreme or is unqualified, they would have the opportunity to participate in the retention election.

In reality, the balanced composition of the nominating commission is unlikely to result in the recommendation of judges who are considered to be outside the mainstream, and the practical likelihood of a strongly contested retention is small. In Indiana, the retention rate for merit-selected judges has been 100%. In Missouri, the state at the root of the merit selection/retention process, there has not been a strongly contested retention election since the 1970s. At the end of the day, however, S.J.R. 7 guarantees that the voters have the final say on Supreme Court justices.
 
2.
 S.J.R. 7 Changes the Focus of Judicial Selection from Name ID to Qualifications.

It is unfortunate, but true, that Ohio judicial races are generally a function of name identification rather than being decided on issues or qualifications. In the last 45 years, there have been some favorite surnames in contests for the Ohio Supreme Court. During that period, Ohio voters elected two Sweeneys, two Celebrezzes, three Herberts and four Browns to the high court.

Meanwhile, the average person on the street has a difficult time naming even one Ohio Supreme Court justice. In recent years, I have given dozens of speeches to local chambers of commerce about the Supreme Court, and I routinely ask how many people in the audience can name all of the members of the court. It is rare that anyone raises a hand, and when they do, they are inevitably attorneys or members of the legislature.

In the 1990’s participation in court elections was routinely far lower than for other offices on the ballot at the same time. On average, 20 percent of voters who cast a ballot for president or governor did not vote in the Supreme Court races. When asked why they did not vote, most said they didn’t know enough about the candidates.

The merit selection system proposed in S.J.R. 7 would focus on key judicial considerations including temperament, experience, education and legal knowledge rather than political considerations like name ID, party connections, and fundraising ability.
 
3.
 S.J.R. 7 Carefully Balances Interests in the Selection Process

By setting parameters on the membership of the Supreme Court Nominating Commission, S.J.R. 7 recognizes the many interests that would be working to participate in the nominating process. Importantly, it balances the interests of attorneys and non-attorneys and the two political parties. It has the potential to allow interest groups affected by the court to have a seat at the table when nominees are being discussed.

While the details would be hammered out in enabling legislation, S.J.R. 7 lays the groundwork for a balanced nominating process.
 
4.
 S.J.R. 7 is a Constitutional Solution amongst an Array of Unconstitutional Options

Merit selection of justices is the best way to insulate them from the issues of campaign fundraising and undue influence of contributors. It is clearly a constitutional option, with two thirds of the states already using a merit selection process of one type or another.

This proven track record makes it preferable to other suggestions that are being circulated to change the “tone and conduct” of judicial elections. Spending limits have already been ruled unconstitutional in Ohio court races, and spending limits were the principal reason for the growth of third-party spending related to the Supreme Court.

Public financing of judicial campaigns seems questionable in an era of tight budgets, especially when public dollars are tied to spending limits that will result in an ill-informed public and will likely engender more third-party spending.

Finally, restrictions and reporting requirement on issue advocacy entities are of questionable constitutionality, which will ultimately be decided when the U.S. Supreme Court takes up the McConnell v. FEC case involving the McCain-Feingold Bill.

Only merit selection removes the need for the raising and spending of vast amounts of money on judicial politics – by focusing the debate on the qualifications of judicial candidates.

In conclusion, Mr. Chairman and members of the committee, the Ohio Chamber urges your support of S.J.R. 7, and I would be happy to answer any questions you may have.