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In light of the recent extraordinary rise in judicial campaign spending, illustrated in Ohio's 2000 judicial elections (and elsewhere, and in Ohio again in 2002), we must consider improving the Model Code of Judicial Conduct. The 1999 amendments to the Code addressed campaign finance, but did not address two major problems. The first one is the absence of limits on aggregate contributions from law firms; only Texas has such limits. This gap allows large contributions from law firms to go to judges presiding in cases in which those firms participate, circumventing the recusal and disqualification triggers. The second problem is the prevalence and impact of unregulated "issue ads" by nonparty, non-PAC interest groups, which are not subject to disclosure requirements because they are not "explicit advocacy." These "stealth" ads also evade recusal and disqualification triggers. I propose, for balance, to address the problems together. First, I urge adopting an aggregate contribution limit as in Texas "Judicial Campaign Fairness Act." Second, I urge requiring disclosure of spending for large advertising efforts by non-candidate, non-party group- in judicial elections, given their differences from other elections. Focusing such requirements on large efforts addresses those with the most impact, while eliminating a “chill" effect for small groups and small contributors. Relatedly, I propose requiring parties in a case to certify that all campaign contributions and expenditures by the party and its counsel regarding a judge in that proceeding have been disclosed.

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64 Ohio St. L.J. 127-136 (2003)