Courts and Law

Gavel set to fall on public funding for judicial elections

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Ditch public funding for judicial elections.

It’s been on the Republican to-do list since party members swept the legislature in 2011 – number six on the conservative John Locke Foundation’s “11 for 2011” list of action items for the first 100 days of that legislative session.

They didn’t succeed then (not for lack of trying), but Republican legislators are back this session intent on checking that item off their list. So much so that they’ve filed three separate bills — H451, S495, and S541 – all seeking to rid the state of judicial public financing.

And Gov. Pat McCrory’s right behind them, pen in hand. He’s already submitted a budget reflecting the repeal of the public campaign fund.

But polls show that the public supports funding judicial campaigns as a way of maintaining impartiality in the courts.  So do the judges, who’ve participated widely – regardless of political affiliation — in public funding since its inception in 2002.  And former governors Jim Hunt, a Democrat, and Jim Holshouser, a Republican, have publicly endorsed the program.

So why, particularly after millions of dollars infiltrated the state supreme court race in 2012, courtesy of the U.S. Supreme Court’s decision in Citizens United, do Republican legislators want to repeal one of the only safeguards North Carolina residents have for maintaining the integrity of their judiciary?

Because it’s on the checklist.

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North Carolina is one of 21 states in which judges are elected, and one of just a handful with public funding for those elections (see map below).
JUSTICE-AT-STAKE2

It was the first state to enact such a program, the North Carolina Public Campaign Fund, with the stated intent of ensuring judicial impartiality and maintaining the credibility and integrity of the courts.  The goal was to dispel the notion – real or perceived – that judges could be bought.

Candidates for appellate courts can opt in by demonstrating public support, collecting qualifying contributions in amounts ranging from $10 – $500 from at least 350 registered voters. They then receive a set amount from the fund and agree to restrictions on further fundraising and on campaign spending. The program is funded with annual $50 contributions from active members of the North Carolina State Bar and an optional $3 check-off on state income tax returns.

Other states have followed North Carolina’s lead, in fits and starts.

Just this month, West Virginia — where the machinations of the head of Massey Coal became the underpinning for the U.S. Supreme Court’s only decision directly confronting the problem of money in judicial elections, Caperton v. Massey Coal made permanent a pilot public financing program for its supreme court races.

Legislators in Kentucky’s House of Representatives pushed a bill establishing public financing for supreme court campaigns through that chamber in March, though prospects of the bill getting through the Republican senate were dim.

New Mexico had a judicial public financing system which its legislature recently revamped, but the governor there vetoed the bill in early April, calling upon the legislature to consider more comprehensive judicial election reform instead.

And though Wisconsin strengthened its public financing program for supreme court campaigns in 2009, it was axed in the 2011 budget. What happened next? In the April Supreme Court race, two candidates spent nearly $350,000 on TV ads alone. Outside conservative groups like the Club for Growth pushed that spending to over a million dollars.

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Supporters of the Public Campaign Fund say that voters here appreciate the need for controlled spending in judicial campaigns and support the public financing program.

In a 2011 poll of registered state voters, 94 percent agreed that campaign contributions can sway a judge’s decision, and 79 percent characterized campaign contributions to a judge by a party with a case before that judge as a “very serious problem.” Eighty-five percent said that judges should disqualify themselves from cases involving their major campaign contributors. And interestingly, both Republicans (50 percent) and Democrats (49 percent) said they would be less likely to support a legislative candidate who wants to eliminate the program.

Judges across the political spectrum likewise value the program, which enables them to be competitive in elections without having to rely extensively on contributions from attorneys who may appear in their courtrooms – or their clients – a problem before the program began.

And they have participated widely, including all eight appellate candidates in 2012. Eighty percent of the candidates in contested races for the Supreme Court and Court of Appeals enrolled in the program in the 2004, 2006, 2008, 2010 and 2012 general elections.

Sitting Court of Appeals Judge J. Douglas McCullough, a Republican, told WUNC last week that he appreciated the integrity the public financing program helped maintain in the courts.

“I enjoyed having the public financing because I had to quality for that,” McCullough said. “I had to go out and raise some money, but I didn’t have to raise an extensive amount of money that anybody would think would compromise me in any way.”

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Debate over the Republican bills pending in the General Assembly has yet to begin, but opponents of the public financing system have likened it to “welfare for politicians” and contend that restrictions on fundraising and campaign spending infringe on the First Amendment freedom of speech.

They also say that safeguards already exist to ensure impartiality on the courts, pointing to a party’s right in any case to seek the removal of a judge they believe is partial to one side or otherwise has a conflict of interest. That process, though — known as recusal — is one that’s shrouded in mystery for most litigants and turns in the first instance on knowing that the judge has an interest or relationship giving rise to a bias – facts which may not be disclosed.

What they don’t say, though, is what became glaringly obvious during the 2012 Supreme Court election: Republican money, much of which flowed in from out-of-state organizations with vested interests in maintaining party control on the court, in the legislature and at the governor’s desk, dwarfed all other spending. Republican SuperPACs dropped close to $2 million to re-elect Justice Paul Newby and maintain the conservative majority on the court and, thanks to Citizens United, were able to sidestep state restrictions in the process.

As it should be, they’ll say, when the debates over eliminating public financing start in the General Assembly. Government should get out of the way and let the spigots flow freely. And to the right.

That’s why it’s on the checklist.

Sources: Appointed State Supreme Court Justices map provided by Justice at Stake. Photo by Brian Turner licensed under the Creative Commons Attribution 2.0 Generic license.

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