Some years ago, a chief justice of Montana was heard to declare that there is no way to pick judges that is worth a damn. He was right. We cannot foretell what decisions a judge will be called upon to make or how the job will shape the judge’s character. But most judges agree that the worst way to pick our judges is to put their offices up for sale to the highest bidder – which is the method being considered by our legislature.
The issue is whether to maintain the public funding system our state established in 2002. That reform was a response to the 2001 decision of the U.S. Supreme Court that corporations, although having no right to vote, have a First Amendment right to spend unlimited funds on advertising telling citizens for whom to vote. But such campaign funding is not mere speech; it is a means of gaining influence with office-holders. And for judicial office-seekers whose job is to listen to claims and defenses of litigants with open minds, campaign funding must be controlled.
North Carolina began electing judges with its 1868 state constitution, and its judiciary has not been corrupted with money – yet. But that statement cannot be made with respect to numerous other states that elect judges with big money campaigns.
Beginning in the 1980s, lawyers’ organizations and diverse business interests led by chambers of commerce began to buy seats on many state supreme courts with multimillion-dollar campaigns. This did not happen in North Carolina, but the 2001 Supreme Court decision forced us to recognize the risk, so our laws were reformed to reduce it.
The central feature of the 2002 reform is a modest grant of public money to candidates who agree to limit campaign contributions and spending. We also began publishing a voters’ guide providing free space to judicial candidates. The reform also promised “matching funds” to candidates who accepted the deal and were then challenged by rivals rejecting the deal and spending larger sums.
The state’s judicial campaign funds are provided mostly by lawyers required to pay $50 to renew their professional licenses; few lawyers complain because they are relieved of requests for larger contributions to judicial campaigns.
Alas, the Supreme Court held in 2011 that the Arizona law providing matching funds for legislative candidates who agreed to limit their campaign spending was a violation of the free speech rights of rival candidates willing to spend larger sums. So North Carolina can no longer provide matching funds to deter big spending by candidates.
But the other features of public funding are still in place. Given the alternatives, they should be retained, especially for candidates seeking election to our intermediate court of appeals. Fourteen of the 15 judges sitting on that court have pleaded with the legislature to maintain the system of limited campaign funding provided at slight cost to the state. Those judges hear the bulk of the appeals of citizens contending that their rights have not been observed in our trial courts.
Because appellate judges do not sit on our highest court, it is unlikely that a contributor would spend big money to secure the election of a judge favoring its interests. Still, if our legislature should improvidently terminate the system, we can be sure that, as in many other states, private money will fund the election of our appellate judges in the donors’ hopes of winning more appeals.
Those who favor privately funded judicial campaigns tout an empirical study of the reactions of Kentuckians to their judicial campaigns. Maybe voters in Kentucky are untroubled by the corrupting effects of campaign contributions. Maybe they prefer voting for judges whose campaigns are privately funded by litigants. But the voters surveyed were not asked to contemplate the prospect of being a litigant whose case is decided by a judge elected with the campaign contributions of the voter’s adversary.
Maybe we can devise a better system of electing our judges that is consistent with the rulings of the Supreme Court. But until then, we need to maintain public funding of judicial campaigns. For our legislature simply to abolish public funding would be a step favoring judicial corruption.
Paul D. Carrington is a professor of law at Duke University. H. Parks Helms, a former member of the N.C. House, is a lawyer in Charlotte.