Point of View

Save public funding for judicial races

April 2, 2013 

Voters and judges in North Carolina agree that justice should not be for sale. Unfortunately, the legislature and governor look poised to eliminate a successful program that helps judicial candidates say no to special interest money.

North Carolina elects its judges. Judicial races cost money, and not surprisingly, the lawyers and parties who regularly appear in court are also the most likely to contribute to judges’ campaigns, creating troubling conflicts of interest for judges and hurting public confidence in the judicial process. After North Carolina started seeing multi-million dollar judicial races in the early 2000s, the state came up with an innovative solution – a public financing system where candidates can opt out of the money race and still run competitive campaigns.

To qualify, candidates have to show they have broad public support and must agree to limit their fundraising. In exchange, they receive public funding to run a campaign – about $240,000 for Supreme Court candidates and $160,000 for candidates for the Court of Appeals. The program gives would-be judges the resources to run competitive races without relying on special interest dollars.

It has been a big success.

In 2002, the last year without public financing, 73 percent of campaign funds for judicial candidates came from attorneys and special interest groups. After public financing was introduced in 2004, that number dropped to 14 percent. Last year, every single candidate for the Supreme Court and the Court of Appeals opted to receive public financing.

Voters like the system too. In a 2011 poll by the Justice at Stake Campaign and the North Carolina Center for Voter Education, 94 percent of North Carolina voters said that they believe campaign contributions have some sway on a judge’s decision, and 79 percent believe it is a very serious problem when judges receive campaign contributions from a party with a case pending before the court. According to the poll, twice as many voters said they believe public financing reduces the potential for corruption in the courts as said it made no difference.

Despite the program’s successes, bills in the House and Senate are seeking to eliminate public financing. Proponents of this effort argue that public financing is not a good use of taxpayer dollars and that cutting funding will save the state money. The governor and legislature should reject this misguided effort.

First, the cost of public financing is essentially a rounding error in the state budget, with most of the funding coming from a $50 surcharge on attorneys and a voluntary $3 check-off box on the state income tax form. More important, the program is a worthy investment in the infrastructure of democracy, protecting North Carolina’s courts and helping ensure that judges are accountable to the law and the constitution — not to the highest bidder.

When the legislature first introduced public financing, it recognized that voters and judicial candidates need protection “from the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of elections.” These concerns have not changed – in fact, they have only become greater as special interest spending on judicial races has skyrocketed in the past decade.

This year’s Supreme Court race, where both candidates received public financing, demonstrates exactly this risk of runaway spending. After Citizens United opened the door to unlimited election spending, outside groups flooded the airways last year in support of incumbent Justice Paul Newby; they outspent his opponent, appeals Judge Sam Ervin IV, almost 10 to 1. The public funding program originally provided a candidate facing such a spending onslaught with additional funding to respond, but a federal court struck down that portion of the law. Even without supplemental funding, though, Judge Ervin was able to rely on public funding to run a competitive campaign without having to join the special interest money race. He broadcast two ads over 500 times over the course of the election season, and while he lost the race, it was far from a blowout. Justice Newby won the race by fewer than 150,000 votes.

Since its introduction, North Carolina’s public financing program has helped candidates avoid the wild fundraising that used to characterize the state’s judicial races. Given its value in letting candidates run competitive races without relying on influence-seeking contributions, the legislature should be looking to preserve and expand the program, not eliminate it.

Alicia Bannon is Counsel in the Democracy Program at the Brennan Center for Justice at New York University School of Law.

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