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Published: Dec 30, 2007 12:00 AM
Modified: Dec 30, 2007 07:25 AM

Eyes on the court-cash connection

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Even back in early December, the political buzz was all about White House hopefuls clawing for traction in Iowa and New Hampshire. (Oh, and which aspirants for the gingerbread mansion here on Blount Street where our governor resides in spooky splendor could get a leg up.) What it definitely wasn't about was how North Carolina elects its judges.

Out of Richmond, though, if that wasn't a buzz, it was at least an ominous rumble. A challenge to North Carolina's remarkable system that largely spares candidates for the state's two highest courts from having to scrounge and beg for campaign contributions was coming to a head.

Judges on the 4th U.S. Circuit Court of Appeals were being asked to toss the Tar Heel system on the scrap heap reserved for unconstitutional crackdowns on the freedom of speech.

Yes, North Carolina has a public financing system for statewide judicial campaigns, the country's first. Candidates who can establish their bona fides by raising a modest sum from individual contributors then are given public funds to pay a reasonable amount of campaign expenses.

All too often, when candidates for the bench have to raise large sums of money on their own, they turn to lawyers and others who may well have a stake -- professional, financial or ideological -- in a court's rulings. No wonder the public can end up with the distinct impression that justice is for sale to those who could afford to help bankroll the judge's campaign. That is a formula for disastrous public cynicism and loss of confidence in the courts' integrity.

The Tar Heel system is intended to counteract that formula. It is not mandatory -- candidates for the state Supreme Court and Court of Appeals are free to finance their own races.

If that's their choice, however, when they raise more than a set amount, a publicly financed opponent is entitled to additional "rescue" funds from the state. That provision chafed Superior Court Judge Rusty Duke of Greenville, the losing candidate for chief justice in 2006. Duke, who declined to take public money for his campaign, was defeated by incumbent Sarah Parker. Early on he had become one of the parties suing the State Board of Elections.

Duke and his fellow plaintiffs, both of them organizations affiliated with N.C. Right to Life, argue that rescue funds unfairly discourage people from contributing to a candidate like Duke because doing so helps the opponent as well. They also object to a ban on contributions to non-publicly financed candidates during the three weeks prior to an election.

They say the ban (which doesn't apply to money that a candidate gives to his own campaign) violates First Amendment rights to free speech and association. But without such a ban, a candidate raising his own money could get a bunch of contributions too late for his opponent to collect rescue funds and put them to use.

The suit first came before U.S. District Judge W. Earl Britt in Raleigh, who in March issued his final thumbs-down.

The plaintiffs' appeal to the Richmond-based 4th Circuit drew a spirited counterattack not only from lawyers for the state, but also from a range of people and groups concerned about keeping judicial elections from turning into high-dollar free-for-alls financed largely by special interests.

A group of 10 former high-ranking state judges, among them former Chief Justice Henry K. Frye and five other ex-justices of the Supreme Court, filed a friend-of-the-court brief seeking to have the North Carolina law upheld.

They noted that before the law was enacted in 2002, judicial campaign fund-raising here was on the same upward curve seen in many other states -- and as a result, the impartiality of judges who had to beat the bushes for contributions in order to be competitive was increasingly open to question. They also contend that far from choking off speech, public financing yields a broader spectrum of candidates who can bring fresh ideas to the table.

The case was argued Dec. 7 before a 4th Circuit panel consisting of judges M. Blane Michael of West Virginia, William B. Traxler Jr. of South Carolina and James P. Jones of Virginia (a District Court judge who was pinch-hitting on the short-staffed appellate court). As it happens, the three judges all are Clinton administration appointees.

Lead counsel for Duke and the other plaintiffs is James Bopp Jr. of Indiana, a familiar face in North Carolina's campaign finance battles. (Remember the hog growers' Farmers for Fairness and their attempts to bend the rules?) Bopp's free-speech refrain can't be dismissed lightly. But neither can the worthy aims of a law designed to insulate North Carolina judges from corrosive fund-raising pressures -- and thus to uphold the people's respect for this state's courts.

Editorial page editor Steve Ford can be reached at 919-829-4512 or at steve.ford@newsobserver.com
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