At stake is more than $1 billion slated to go to FirstEnergy Solutions and OVEC if the new law is preserved.
An expensive campaign
Supporters of HB6 have spent $16.56 million so far on advertising to get the bill passed and stop the referendum, according to Medium Buying, a firm that tracks ad buys. Opponents of HB6 have spent $4.46 million so far, according to the firm.
Those figures do not include money spent on lobbyists, political strategists or petition circulators.
Political insiders who run ballot issue campaigns say the spending and the hardball tactics are jaw dropping.
"Ohio has never ever seen this level of decline-to-sign petition campaign," said Ian James, who ran the 2015 ballot campaign to legalize marijuana in Ohio. "And I doubt, if the petition falls short on signatures, that Ohioans will ever truly know the level of funding that was spent for and against the petition HB6 effort."
“The money being spent on television and radio ads, mailings to voters, and on the ground intimidation tactics before the issue even qualifies for the ballot sets a dangerous precedent for future initiatives,” said Tracy Sabetta, who ran the 2006 ballot issue campaign for Ohio’s indoor smoking ban.
“But the biggest surprise for me has been the xenophobic, fear-mongering messages that are bombarding Ohioans at every turn. They do nothing to educate or encourage participation in the democratic process, but rather serve to confuse and frustrate voters in the hopes they will decline to participate at all. This could have ramifications far beyond the House Bill 6 referendum,” she said.
Ohioans for Energy Security, which backs HB6, is running ads alleging the Chinese are behind the referendum effort and is paying people to circulate an alternative petition that opposes ‘foreign ownership of our electric grid.’
Related: Ohioans flooded with ads as battle heats up over energy law referendum
Putting issue before Ohio voters
Since 1912, Ohio voters have had the right of referendum — an extraordinary power to embrace or reject laws passed by the Ohio General Assembly. In 2008, Ohio voters said yes to a law that placed restrictions on payday lenders and in 2011, voters rejected Senate Bill 5, which would have gutted collective bargaining rights for 360,000 public employees.
Qualifying for the statewide ballot is not easy. Groups need to collect hundreds of thousands of signatures from registered voters from at least 44 of 88 counties, often on a tight time frame.
For a referendum, they face a 90 day clock that starts once the contested law is signed.
Ohioans Against Corporate Bailouts is petitioning the U.S. District Court for an extension on the Oct. 21 deadline, arguing that 38 days of its 90 day window was eaten up waiting for the go-ahead from Ohio Attorney General Dave Yost and Ohio Secretary of State Frank LaRose. Waiting for the go-ahead is required by law, not the Ohio Constitution, Ohioans Against Corporate Bailouts said, and it infringes on constitutional rights.
Sabetta said lawmakers should make changes to the process, including starting the 90-day clock once the final go-ahead is given.
“Without a time frame dictated for these review processes, the Attorney General and Secretary of State could drag their feet just long enough to ensure there is not enough time for an effort to be successful in making the ballot,” she said.
The signature requirement is 6% of the number of ballots cast in the most recent gubernatorial election, which amounts to 265,744 this time. Typically, a campaign needs to gather at least twice the required number of signatures because a high percentage are ruled invalid — they are duplicates or the signer isn’t a registered voter.
Gathering signatures in Ohio is a ‘unique beast’
It’s a heavy lift that leads many campaigns to hire firms specializing in signature gathering.
“The paid circulator industry is a unique beast. Paid collectors rarely have any attachment to the petition issue and are focused far more on meeting signature goals than educating signers. That is the job they are hired to do, and some do it honestly and ethically,” Sabetta said. “However, paid signature collection has become a necessary part of the ballot initiative process in Ohio. Signature collection requirement numbers are high enough and the time frames are short enough that it is nearly impossible to obtain the requisite number of valid signatures using solely volunteer efforts.”
Aside from the fight playing out in TV ads and mailers, each side has deployed to public places such as libraries, farmers markets and football games. Ohioans Against Corporate Bailouts is trying to gather signatures. Ohioans for Energy Security and Generation Now — allies of FirstEnergy Solutions — are discouraging people from signing.
Related: Ohio AG investigating new allegations in fight over energy bill referendum
In suburban Columbus last week week during the Democratic presidential debate, operators with “Decline to Sign” t-shirts were working the sidewalks near where an HB6 referendum petition circulator had set up a table.
In court filings and in the media, Ohioans Against Corporate Bailouts allege that the ‘blockers’ on the decline to sign side have harassed and intimidated HB6 petition circulators. The group also said its opponents have tried to bribe and buyout HB6 circulators with offers of $2,500 and a plane ticket out of town.
Sabetta, who is a consultant for Ohio Citizen Action — which supports the referendum, said lawmakers should consider “Outlining an expedited, specific legal process to address harassment and violence from ‘blockers’ hired solely to obstruct the signature collection process could go a long way in reducing this tactic in future campaigns.”
The right to referendum is one method of direct democracy afforded to Ohioans. Citizens can also circulate petitions for constitutional amendments and initiated statutes.
In recent years, Ohio voters have weighed in on big public policy questions on the ballot, including the indoor smoking ban, legalizing casinos, legalizing marijuana, tying minimum wage increases to inflation and banning same sex marriage.
“Direct democracy is healthy for America, and people should be encouraged to continue to practice it,” said Chris Melody Fields Figueredo, director of the Ballot Initiatives Strategy Center, in an opinion column. “While measures people support may not always win, direct democracy does not conflict with the government process and, in many ways, it is another form of checks and balances on lawmakers who don’t have the people’s interests as a priority.”