COLUMBUS — FirstEnergy Solutions fears the fate of its two nuclear power plants on Lake Erie may rest in the hands of the Ohio Supreme Court as it considers issues that could breathe new life into an effort to kill a recently passed consumer bailout.
But six of the seven justices sitting on the court have received campaign cash from the electricity generator and supplier’s soon-to-be-former parent company, FirstEnergy Corp., at some point in their judicial careers.
One of them, Republican first-term Justice Pat Fischer, last week recused himself from considering the case without citing a reason. Justices decide for themselves whether they fear they may have a conflict of interest.
A review of the Ohio secretary of state’s campaign finance database shows that FirstEnergy Corp.’s political action committee contributed more than $78,000 to state Supreme Court candidates — and in one case, a future justice early in his judicial career — since 2010.
Of that, about $43,000 went to jurists now sitting on the bench.
“The thing Ohioans need to remember is that when any rule affecting consumers is challenged, it goes to the Ohio Supreme Court,” said Catherine Turcer, executive director of government watchdog Common Cause of Ohio.
“In fact, FirstEnergy has a real vested interest in how business friendly that justice is,” she said. “Since 2000, the first time I looked at campaign contributions, FirstEnergy has been a major player year after year.”
The company’s support has heavily favored Republicans who dominate the bench 5-2. But it has on rare occasions supported Democrats, including $1,000 for current Justice Melody Stewart, elected last year.
In fact, it financially supported three of last year’s four candidates running for two seats on the bench.
The utility also poured more than $400,000 into state legislative campaigns during the 2017-18 election cycle that helped fashion the General Assembly that this year passed House Bill 6.
It also gave to statewide candidates, including nearly $23,000 last year to the campaign and subsequent inaugural celebration of Republican Gov. Mike DeWine, who signed House Bill 6 into law.
These numbers do not include contributions from company employees, labor unions, or others who may also have an interest in the legislative and judicial debates over the plants.
Research by Common Cause showed the PAC and company employees contributed more than $1.2 million to legislative and statewide candidates since 2015. In the last election cycle, the PAC contributed more than $25,000 to the campaign committee of now House Speaker Larry Householder (R., Glenford), who made passage of House Bill 6 one of his priorities, the organization said.
The law, beginning in 2021, will impose surcharges on consumers’ monthly electricity bills to send $1 billion over seven years to subsidize operations of the Davis-Besse nuclear plant near Oak Harbor and Perry plant east of Cleveland.
The plants directly employ a total of 1,400 people, but they have been unable to compete economically with cheaper, abundant natural gas.
FirstEnergy Solutions is preparing to emerge soon from federal bankruptcy as a company independent of the Akron-based corporation that spawned it in 1997. It will also have a new name, Energy Harbor.
Ohioans Against Corporate Bailouts, the group behind the so-far failed effort to subject House Bill 6 to a voter referendum, has turned to the courts in hopes of getting more time to gather the roughly 266,000 signatures of registered voters needed to put the question on the ballot.
A federal judge last month refused to issue an injunction to give it that time, determining that the questions the group raised were state constitutional issues, not federal. He posed five questions to the state Supreme Court that generally revolve around whether the state constitution guarantees a full 90 days to gather signatures and whether legislative restrictions placed on that process violate the group’s rights.
FES has asked the high court not to answer those questions, a move that could prove to be the final nail in the coffin of the referendum effort.
The sole member of the current bench who has not received money from FirstEnergy PAC is Democratic Justice Michael Donnelly, elected in 2018.
Chief Justice Maureen O’Connor received $6,000 from the PAC in 2010; Justice Fischer received $13,400 in 2016; Justice Judith French, $6,700 in 2014; and Justice Sharon Kennedy, a total of $13,000 in 2012 and 2014. Justice Patrick DeWine received $2,700 for a prior lower court campaign in 2012.
All are Republicans.
The Supreme Court’s rules of practice allow for a party in a case to request that a particular justice recuse himself or herself from the case, but it is the justice’s decision whether to do so. Campaign contributions are not mentioned as potential disqualifier.
“Justices have no obligation to state a reason for a recusal, but are free to do so, since it is solely their decision whether to recuse or state a reason,” said Supreme Court spokesman Edward Miller.
Recently, three on the bench — Justices Fischer, French, and DeWine — recused themselves from a separate but related lawsuit brought by FES. The company had asked the court to rule that House Bill 6 was immune from referendum in the first place because, it argued, the consumer surcharge is actually a tax.
The three recused justices all had connections with consultants affiliated with Ohioans Against Corporate Bailouts who had also been involved in their campaigns. Justice DeWine, however, was the only justice to explain his reasoning.
The four remaining justices — three of whom have received campaign money from FirstEnergy PAC over the years — went on to dismiss the lawsuit, handing FES a defeat.
In June, the court voted 4-3 against FES’s interests by striking down an authorization from the Public Utilities of Commission of Ohio that allowed it to charge customers for purported upgrades to its electricity distribution system without actually ensuring the money was used for that purpose.
As a general rule, the justices have not recused themselves because of campaign contributions.
“Justice isn’t always blind,” Ms.Turcer said. “Just because a justice is supported by FirstEnergy doesn’t mean that justice is going to lean toward First Energy. It’s like betting. The odds are more favorable if the justice is a pro-business, anti-regulatory justice.”
It’s unclear what the solution might be given that Ohio elects its judges.
Ms. Turcer suggested requiring participants in a case to disclose how much they’ve contributed to the justices, and requiring better explanations from justices when they choose to recuse themselves, could help temper any perceived appearance of impropriety.
First Published December 9, 2019, 12:30 p.m.
