Opinion: Daily Journal

The Court Has Spoken

RALEIGH – Members of the North Carolina General Assembly are obligated to observe the provisions of the state and federal constitutions – the plain meaning of the constitutions’ text as well as how they have been interpreted and applied by the courts.

That’s why lawmakers should vote against a bill now moving through the legislature to expand North Carolina’s system of taxpayer-funded campaigns for Council of State positions. It is flatly unconstitutional, as a recent U.S. Supreme Court decision made abundantly clear.

In truth, I’ve never liked the idea of forcing North Carolina taxpayers to fund the campaigns of politicians with whom they may strongly disagree. Among the lessons of Barack Obama’s success last year was the true public financing of campaigns – large groups of private citizens giving relatively modest amounts to candidates who inspire them – is both practical and effectual. We don’t have to resort to force to make our democracy work.

Obama wisely bypassed the failed federal funding system, which provides inadequate sums thanks to an overwhelming lack of support by taxpayers filling out their tax returns. North Carolina’s original “public financing” system for judicial candidates also failed miserably, at which point previous promises to keep the system voluntary were conveniently forgotten and the general public was compelled to pay the bill.

By last year, North Carolina’s system had been further expanded to include races for state superintendent of public instruction, state auditor, and state insurance commissioner. That meant an even greater encroachment on the freedom of North Carolinians to make their own decisions about which campaigns they support.

But you don’t have to agree with me about the propriety of welfare programs for politicians to recognize that it would be unconstitutional for the General Assembly to expand North Carolina’s campaign-finance program. It contains a fatal flaw that, if left unaddressed, will invite a successful legal challenge.

The problem is that North Carolina’s current program is not, as advertised, just an option for candidates. If a candidate chooses not to participate in the system but his opponent does, the candidate opting out is punished. If he spends “too much” money from voluntary contributions, his opponent gets extra funding from the state. What’s worse, even if the candidate doesn’t spend “too much,” expenditures on his behalf by independent groups can also trigger a corresponding government subsidy to his opponent.

This isn’t just outrageous. It’s unconstitutional. In last year’s Davis v. FEC case, the Supreme Court struck down a similar federal program that punished congressional candidates who spent “too much.” The Court ruled it a clear violation of the First Amendment’s protection of political speech, as indeed it is.

Some North Carolina politicians and activists claim that Davis doesn’t matter because the high court subsequently declined to review a federal appeals court ruling on the North Carolina program. But that’s the whole point – the Supreme Court is not in the habit of repeating itself. It can only afford to take a small percentage of appealed cases every year. Its ruling on the issue couldn’t be more clear.

Other states are getting better legal advice on the matter. The counsel to the New Jersey legislature has already advised members that, in the wake of the Davis decision, a proposed matching-funds bill in that state would likely be unconstitutional. Similarly, a federal court has already ruled that because of Davis, it is probable that Arizona’s system – popular with self-style campaign-finance reformers – would be struck down.

It would be utterly irresponsible for state lawmakers to vote to expand any program facing such significant constitutional problems. Instead, they are obligated to amend North Carolina’s existing taxpayer-financing system to remove the penalties now imposed on candidates and independent groups that choose not to participate.

I’d rather junk the whole system. But while I think that would be the best policy, the state is not required by the constitution to do that. What the state is required to do is to comply, immediately and completely, with the ruling of the U.S. Supreme Court.

Such compliance must begin by saying no to Senate Bill 966.

Hood is president of the John Locke Foundation