RALEIGH — A combination of luck, clumsiness from sponsors, and hard work by conservative grass-roots activists, helped the Tar Heel State dodge a bullet (for now) when, in the waning days of the General Assembly’s short session, the Senate Judiciary Committee removed a public financing provision for political campaigns from ethics reform legislation.
That said, backers of so-called voter-owned elections vow to return. They insist on expanding taxpayer financing of elections, even though the U.S. Supreme Court seems poised to rule such schemes a violation of the First Amendment — and even a rock star in the clean-elections circuit called a very similar law in Arizona unconstitutional in a late June visit to Raleigh.
The measure would have extended “voter-owned elections” in the state. Right now, races for appellate judges and Supreme Court justices, state auditor, commissioner of insurance, and superintendent of public instruction are covered by special funding rules. Candidates who agree to abide by spending and contribution limits get matching funds from taxpayers if either their opponents or independent groups spend more than a threshold “trigger” defined in the law.
The provision removed from the bill would have added the races for state treasurer, secretary of state, and commissioners of agriculture and labor in 2012. Elections for attorney general would have been brought into the fold in 2016.
Using thresholds and “triggers” to increase taxpayer subsidies to candidates is unconstitutional. That’s not (just) me talking. That’s what Larry Lessig, a Harvard Law School professor, advocate for robust public financing of elections, and clean-campaign guru, said earlier this week.
“The [U.S.] Supreme Court is going to strike down any rescue-fund system that allows a trigger inside the law to increase the amount of money based on what your opponent is doing,” Lessig said in a segment recorded for Carolina Journal Radio.
In the 2008 Davis v. FEC ruling, the justices threw out the so-called Millionaire’s Amendment in the McCain-Feingold campaign-finance law. That provision allowed candidates for federal office to ignore spending limits if they faced self-financed candidates who spent exorbitant amounts of their own money on their campaigns.
The justices said that the only potential justification for restricting First Amendment political speech rights by imposing a ceiling on spending and contributions is to limit corruption or the appearance of corruption. A candidate who pays his own costs is unlikely to corrupt himself.
The ruling in Davis should have poured cold water on North Carolina lawmakers who have a crush on stifling speech, er, taxpayer-funded elections.
Moreover, in recent weeks, federal courts have called a halt to similar campaign financing schemes in Arizona and Connecticut. In Arizona, the U.S. Supreme Court told the state to stop mailing matching funds checks to candidates until the justices could review the case. In Connecticut, the 2nd U.S. Circuit Court of Appeals threw out the matching funds provision entirely. (The 2nd Circuit opinion was issued after our short session adjourned.) A full airing at the U.S. Supreme Court is almost certain.
With every indication that North Carolina’s trigger scheme would not survive in court, state lawmakers should have repealed our public financing mechanism, rather than try to extend it. But no. Democrats stuck the language into the ethics bill mere hours before it was set for a Senate committee vote.
The conservative grass-roots group Americans for Prosperity sprung into action, flooding lawmakers’ offices with phone calls and other messages opposing taxpayer-financed elections. AFP also launched an automated phone campaign in a handful of Democratic districts. The phone calls featured former GOP gubernatorial nominee Pat McCrory urging residents to call their representatives. The News & Observer credited AFP’s “quick strike campaign” with making lawmakers skittish and killing this noxious assault on political activism.
The next session of the General Assembly should repeal the current voter-owned elections law. Of course, voters could have a say in this as well. There’s an election in November, and candidates who think it’s OK to force taxpayers to give politicians welfare should be held to account.
Rick Henderson is managing editor of Carolina Journal.