Public funding: Why N. C. Courts aren’t for sale

Jun. 24, 2013 @ 02:50 PM

Our legislature should retain our present law providing public funding of judges’ political campaigns. 

That law is indispensable to public confidence in our state’s judiciary, especially in our state’s intermediate courts of appeals. They are the courts in which most appeals are heard and the candidates must seek votes statewide.  Fifteen of the 16 sitting judges on those courts have pleaded with our legislature to continue public funding of their campaigns in order to maintain public trust.  Most of the public funds in the present system are not provided by taxpayers other than those who voluntarily contribute small amounts.  Most of the funds are provided by lawyers who pay an extra $50 to keep their licenses to practice our profession.  Their contributions enable the state to provide funds to candidates who agree to forego big spending and who are therefore enabled to publish in our official guidebook to seek support from citizens, all of whom receive the distribution.

Art Pope, Gov. Pat McCrory’s budget director, has erroneously declared that “The North Carolina Courts have held that using compulsory attorneys’ fees for political campaigns is unconstitutional.”  Pope is a lawyer and a citizen of substantial wealth accustomed to substantial spending on candidates’ campaigns for state offices.  In his statement he relied wholly on a 2009 decision of Judge Howard Manning of the Wake County Superior Court.  Manning’s opinion can be found on the website of the North Carolina Institute for Constitutional Law. http://www.ncicl.org/litigation/3.   It lends no support to Pope’s contention, and no appeal was taken from his ruling to a higher state court.

Specifically, Manning in the case cited by Pope found that the $50 charge imposed on members of the Bar and used to finance judicial elections is not unconstitutional, and that the program does not of itself violate anyone’s freedom of speech.  He did hold that the practice in 2008 of not allowing attorneys paying the $50 dollars the right to designate whether that sum would be spent on the voters’ guidebook or on a candidate’s campaign is compelled political speech.  Manning suggested a remedy for this grievance if the Bar would change its protocol so that each member would be able to select whether his or her $50 would go to a specified campaign or cover the cost of the guidebook.  The Bar sdopted his suggestion and no one has since complained.

In his expression of concern, Manning relied on Keller v. State Bar of California, 496 U.S. 1 (1990).  In that case the Supreme Court of the United States held that a system of funding the state bar’s practice of assessing its members to pay for the organization’s political campaigns on diverse public issues was not constitutionally permissible.  All states compel attorneys appearing in their courts to be members of its state bar and to pay dues to fund their organization’s activities, but the state bar unlike a labor union cannot compel its members to provide support for politically or ideologically divisive measures favored by the bar’s leadership. 

For example, the state’s Bar cannot compel its members to fund advertising for or against gun control.  But members of the Bar do all share a direct interest in the integrity of the legal system that it is the aim of North Carolina’s public funding of campaigns for judicial offices to protect.  Indeed, without public funding, lawyers may be subject to some duress to contribute to judicial candidates who may later decide their clients’ cases.  The $50 fee thus liberates many members of the bar from pressures to spend larger sums on judicial political campaigns.

At least until we find a more effective means of protecting our state’s judges from the corrupting effects of campaign funding, North Carolina should retain public funding of the campaigns of those judges running for office statewide, who must spend to be elected.

Paul D. Carrington is a law professor at Duke University and from 1978 t 1988 was dean of its School of Law.