Nearly a year after the U.S. Supreme Court struck down an Arizona campaign-finance law allowing some candidates to receive “rescue funds” provided by taxpayers, North Carolina lawmakers are pushing a bill that would end a similar system for some elected offices.
Senate Bill 908, by Sens. Andrew Brock, R-Davie, and Pete Brunstetter, R-Forsyth, would repeal the provision in North Carolina law allowing candidates for appellate court judges, state auditor, superintendent of public instruction, and commissioner of insurance who accept public financing for their campaigns to get additional money if they face opponents who finance their own campaigns. These rescue funds also are available to publicly financed candidates if independent political groups spend a lot of money supporting self-financed rivals.
Sponsors of the measure say it’s necessary to make sure state and local officials comply with the Supreme Court ruling, which said this form of public financing violated the First Amendment by placing “undue burdens on political speech.” Opponents counter that North Carolina’s rescue fund provisions for judicial elections can prevent “justice for sale” and keep what they consider special interests from using campaign donations to influence elections.
S.B. 908 passed the Senate 46-1 last week and now faces a vote in the state House.
The Supreme Court ruled last June in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett that an Arizona statute giving matching funds to candidates who accepted public financing violated free-speech rights. “The court has repeatedly rejected the argument that the government has a compelling state interest in ‘leveling the playing field’ that can justify undue burdens on political speech,” wrote Chief Justice John Roberts for the majority. “Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.”
The State Board of Elections shut down Chapel Hill’s rescue fund provision last fall after Daren Bakst, who was the John Locke Foundation’s director of legal and regulatory studies at the time, wrote the board saying that the Chapel Hill system was at odds with the Supreme Court’s ruling.
But Brock said legislation is necessary to ensure that the board does not provide funding to statewide candidates. Brock said this bill would “send a clear message to State Board of Elections not to give out the [matching funds] money in these races.” Brock agrees with the Supreme Court that rescue funds violate the First Amendment “if I have my tax dollars going to help a candidate with an opposing viewpoint.”
Brock also believes that matching funds can give an incumbent an unfair advantage by guaranteeing incumbents — including unpopular ones — a set amount of taxpayer funding. “Sometimes [matching funds] may hinder the challenger of a race because an incumbent may receive money when people don’t want that incumbent to be in office anymore,” Brock said.
Jeanette Doran, executive director and general counsel at the North Carolina Institute for Constitutional Law, says the state is “begging for litigation” unless it passes S.B. 908. She calls the measure a housekeeping bill, because “the statutory scheme is still there on the books. … Senate Bill 908 just draws our public financing scheme in agreement with the Arizona Free Enterprise Supreme Court decision last summer.”
Doran added that North Carolina’s rescue funds measure is “unenforceable,” citing a May decision in U.S. District Court in which a judge ruled the provision unconstitutional.
Not everyone agrees with the Supreme Court’s ruling. But Bob Hall, executive director of Democracy North Carolina, says, “I can understand why [S.B. 908] is going to be adopted. I don’t have a problem with the bill because it is following the decision of the Supreme Court. The question is if the Supreme Court made the correct decision that necessitated the bill.”
Hall also suggested that a future Supreme Court with a different ideological makeup might arrive at a different conclusion regarding rescue funds.
Hall’s group previously has argued that rescue fund provisions “level the playing field,” preventing “qualified candidates from being overwhelmed by high-spending opponents or opposition groups.” In judicial races, Democracy NC argued, such measures also allow candidates to campaign without relying on contributions from attorneys who might appear before the judges after election.
“Just because you have matching campaign funds does not ‘even the [playing] field,’ because you may have [a candidate] that has intangibles one way or another,” Brock said.
Such intangibles could include “charisma, attractiveness, speaking ability, and persuasiveness,” Duke University political science professor Mike Munger told Carolina Journal last year. “Saying that some kinds of advantages are OK — persuasiveness — and others are not — spending — does not solve the problem either.”
Brock is against the notion of “evening the playing field.” He said most Americans want fairness in elections. “[But] I think this goes way overboard trying to create a sense of fairness, that it creates an equally [or] bigger sense of unfairness,” he said. Technically, they are forcing people to contribute to candidates [who] don’t agree with their viewpoints, so it drowns out your own voice because you had to give money to an opposing view.”
On June 6, the House referred Senate Bill 908 to the committee on elections. No committee action has been scheduled.
If S.B. 908 passes, and rescue funds are repealed, the debate on public financing will continue. North Carolina will maintain public financing for officeholders. Hall says, “I don’t think the rest of the program should be repealed. I think it is still useful and helpful to candidates who don’t have access to lots of money and prefer being accountable to voters and not to wealthy donors. So it is an incentive to candidates to orient their campaign toward registered voters.”
Brock disagrees. “I think they should cancel the whole thing out,” he said. He considers public financing for campaigns “taxpayer money being wasted. If candidates have support, [then] they’ll have financial contributions behind them. … I think in the end the only people it helps is the political consultants, or the people ‘in the campaign business.’”
Signè Thomas is an editorial intern for Carolina Journal.