This week’s “Daily Journal” guest columnist is Rick Henderson, Managing Editor of Carolina Journal.
RALEIGH — Through a combination of luck, clumsiness from sponsors, and hard work by conservative grass-roots activists, the Tar Heel State dodged a bullet (for now) when the Senate Judiciary Committee on Thursday removed a public financing provision for political campaigns from the General Assembly’s 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 visit to Raleigh earlier this week.
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 Thursday would have added the races for state treasurer, secretary of state, and commissioners of agriculture and labor in 2012, and 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.
Last year, in Davis v. FEC, 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.
And then, a few weeks ago, the high court called a halt to Arizona’s matching-funds scheme — one that resembles North Carolina’s. It’s the one Lessig called unconstitutional. The justices ordered Arizona to stop issuing matching funds payments to candidates participating in that state’s public-financing system until they can review fully a constitutional challenge to the law.
Such measures spread the wealth around, argued Clint Bolick and Nick Dranias, the attorneys for the Phoenix-based Goldwater Institute who presented the case in court. In a three-way race where one candidate is self-financed and the other two participate in public financing, they have noted, for every dollar above the threshold the self-financed candidate spends, taxpayers provide two dollars to his opponents. The law actually gives candidates who accept subsidies an unfair fundraising advantage.
The high court’s actions — instructing a state not to mail checks to people who were entitled to the money — should have put our General Assembly on notice. But no. Democratic leaders slipped the public financing provision into the ethics bill mere hours before the measure was set for a vote.
The conservative grass-roots group Americans for Prosperity immediately activated its network of volunteers, who flooded 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.
You would hope that the next session of the General Assembly would repeal the current voter-owned elections law, especially if the Supreme Court strikes down the Arizona 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.