Judge: Lawyers Cannot Be Compelled to Fund Judicial Campaigns

In what many are calling a victory for First Amendment protections, Wake County Superior Court Judge Howard Manning ruled Aug. 10 that the State Bar cannot compel individual attorneys to fund the campaigns of judicial candidates for the Court of Appeals and Supreme Court by means of a special $50 surcharge.

Instead, the State Bar must allow attorneys to designate on their annual membership renewal notices that the $50 surcharge must be spent on a Voter Guide for judicial candidates. Fees collected from attorneys who do not make that designation “may be used for any purpose under the Campaign Fund rules and regulations.”

If upheld on appeal, Manning’s decision could hinder attempts by self-described “clean government” groups to expand taxpayer financing to more campaigns. This year’s General Assembly failed to enact legislation bringing public financing to municipal elections and races for attorney general, state treasurer, secretary of state, and the commissioners of agriculture and labor. Taxpayers currently finance campaigns for auditor, commissioner of insurance, superintendent of public instruction, and appellate courts.

Nearly two years ago, the North Carolina Institute for Constitutional Law (NCICL) filed a lawsuit on behalf of a group of attorneys in Mecklenburg County who had objected to paying the fee. They said the fee violated the First Amendment by compelling them to fund the campaigns of candidates they may or may not support. The attorneys had been ordered by the State Bar to pay the fee or face suspension of their law licenses, said NCICL Senior Staff Attorney Jeanette Doran, who handled this case for the plaintiffs.

Many unions and other organizations use member dues to fund political campaigns. This case was different because the State Bar is the state agency charged with regulating attorneys. Attorneys who did not pay the $50 fee would lose their licenses. Unlike associations where members can choose membership, attorneys must join the State Bar because they cannot practice law without a license, Doran explained in a phone interview with Carolina Journal.

“The ruling is a huge victory for the First Amendment and the long-standing constitutional principle that individuals cannot be compelled to make political speech. Judge Manning provides a strong analysis of why the State Bar’s policy violated both the U.S. and North Carolina Constitutions, and I believe it’ll withstand an appeal,” said Doran.

“What surprised both sides was the remedy Judge Manning ordered,” Doran added, “because neither side had requested it. The State Bar is a small organization and having to revise its accounting system may place an undue administrative and financial burden on the group. The Court of Appeals may not uphold the remedy, but that’s anyone’s guess at this point.”

While Manning’s ruling did not strike down public financing of campaigns, opponents of public financing argue that his remedy may disallow the use of taxes or compulsory fees to underwrite any system of campaign finance. As editorial writer Doug Clark pointed out in the Greensboro News & Record blog, if lawyers could be taxed to fund judicial campaigns, it only follows that teachers, accountants, and other professionals could be forced to fund campaigns for other political offices.

Noelle Talley, public information officer for the North Carolina Department of Justice, said in response to a phone call from CJ that the “attorneys are reviewing the ruling, but have not yet made a decision about an appeal.”

Karen McMahan is a contributor to Carolina Journal.