A Wake County Superior Court judge struck a blow this year against an election tax. That is how the North Carolina Institute for Constitutional Law describes the $50 fee that had been imposed on the state’s lawyers. Jeanette Doran, senior staff attorney for NCICL, discussed the ruling with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)
Kokai: First of all, let’s describe this. This is a $50 fee that has been charged to every attorney in North Carolina. What was this fee all about?
Doran: The fee was started a few years ago, and it is a $50 charge in addition to Bar dues. It is collected by the State Bar, but it was imposed by the General Assembly. That $50 fee is collected, and it is turned over for use for two things. One was a voter guide to judicial races, and the other was for the North Carolina Public Campaign Fund, which was used to finance the campaigns of qualified and participating candidates for just the Court of Appeals and Supreme Court.
Kokai: And there has been some concern about this, which got the North Carolina Institute for Constitutional Law involved in the process. What were the concerns legally or constitutionally about this fee?
Doran: Well, the primary concern was that the money was forcing people, forcing attorneys, to pay for the judicial races of candidates they might not support —sometimes candidates they adamantly opposed. That kind of financial support is the equivalent of speech, and it is prohibited by the First Amendment. The government cannot force people to support a candidate. It is compelling political speech. So that was one most troubling aspect of the tax. The other problem is that the state singled out one profession — just attorneys. And obviously, if they could do it to attorneys, our concern was, who’s next? Will teachers be forced to pay an extra tax to finance the campaigns of school board members or superintendents? Will insurance agents have to pay an extra tax [for] insurance commissioner? Farmers for agriculture commissioner? Where would it stop?
Kokai: One of the things that we ought to probably point out is how this taxpayer financing works. You mentioned that these are the races for the Court of Appeals and the North Carolina Supreme Court. And in the way the system works now, candidates running for these offices can get taxpayer funds — including some of the money from this fee — for their campaigns.
Doran: Right, right. In order to qualify to receive funds, candidates have to demonstrate that they have some public support, and they have to agree to spending limits. There is a scheme that is set out in statute. Our objection was not to the distribution of the funds. Our objection, my clients’ objection, was to the compulsory payment of a contribution to the campaign fund. So our objection was all to how that money was collected rather than how it was distributed.
Kokai: You mentioned that you have clients in this case; it is not just the Institute for Constitutional Law. Let’s describe a little bit about how this case played out. It has taken a couple of years to get to the point that it [has reached] now.
Doran: Yes. Starting in the summer of 2006, there was a group of attorneys who received their notice from the State Bar telling them, all right, time to pay up. Cough up your $50 in addition to your Bar dues. And a handful of attorneys objected to that; they refused to pay it. There was a hearing before the State Bar. And the State Bar took it under advisement. It told the attorneys, pay up or we are going to suspend your law license. And three of those attorneys contacted the Institute in the fall of 2006, and we worked with them — worked with those three attorneys who were all public defenders in the Mecklenburg County system. We finally filed the lawsuit in October of 2007. It has taken us very nearly two years to get a decision from the trial court.
Kokai: And the trial court is in Wake County. It is Judge Howard Manning. Tell us what Judge Manning ruled.
Doran: Judge Manning ruled that the State Bar had the authority to impose and collect the $50 fee, but that every attorney in the state has to be given the option to direct [that] their $50 payment will only go to the voter guides. Judge Manning determined that using that $50 for campaigns violated the First Amendment because it was compelled political speech. So, in order for the State Bar to be allowed constitutionally to impose the $50 fee, collect the $50 fee, they have to give the attorneys the option to direct that it go to the voter guide. Judge Manning determined that the voter guide did not amount to political speech — compelled political speech — and so it was constitutionally permissible to require attorneys to pay for that.
Kokai: So it was a loss if you wanted to get rid of the $50 fee, but it was a win constitutionally for saying that, no, the state can’t take money from people and force them to spend it on campaigns of people they might not support.
Doran: Absolutely, absolutely. The problem was never the $50. People, I think, sometimes get sidetracked by that amount because it seemed relatively trivial in the grand scheme of things. Some people seem confused that this wasn’t really a victory for the First Amendment because people still have to pay the tax. The principle, though, that government cannot compel political speech — that was absolutely upheld by Judge Manning’s decision. And it was a great decision for the First Amendment because we finally in North Carolina have a decision that says the state cannot force people to pay for candidates they … may not support.
Kokai: You mentioned that we finally have a decision on that front. This particular campaign financing system still exists. We also have public financing in North Carolina for some other Council of State races like the Superintendent of Public Instruction. Does this particular case have any implications for those other elections?
Doran: This particular case has, in its most narrow sense, a somewhat limited implication in that we only challenged the tax that attorneys have to pay. But it has a broader implication in so far as the courts recognize that government may not compel individuals to make political speech. The government cannot compel individuals to finance the campaigns of candidates they oppose or may oppose. And in that sense, this case could have far-reaching consequences for public financing in general.