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Advocates Urge Court to Dismiss Challenge to N. Carolina’s Successful Public Campaign Finance Law

The Center and the North Carolina Department of Justice submitted a brief urging the Supreme Court to refrain from reviewing a Fourth Circuit decision upholding North Carolina's innovative program.

September 26, 2008

For Immediate Release

Contact: Tim Bradley, BerlinRosen Public Affairs, (646) 452-5637

Upheld Below, North Carolina Provision Takes Monied Influence out of Judicial Elections

New York – As millions of dollars continue to pour into judicial elections around the country, today advocates for fair and impartial courts at the Brennan Center for Justice defended the country's flagship public financing system for judicial races after critics sought to challenge it before the U.S. Supreme Court. In a brief submitted today, the Brennan Center and the North Carolina Department of Justice urged the Supreme Court to refrain from reviewing a Fourth Circuit decision upholding North Carolina's innovative program.

The parties objected to petitioners' request that the Supreme Court evaluate the North Carolina program in light of the Court's recent decision in Davis v. FEC, a case which had not transpired at the time of the lower court ruling and which did not address the public financing of judicial campaigns.

"The Supreme Court should reject this invitation, as the Fourth Circuit's decision was a thorough evaluation, and found the North Carolina judicial public funding system to be clearly constitutional," stated Laura MacCleery, Deputy Director of the Democracy Program at the Brennan Center for Justice.

"North Carolina runs the country's first public funding system to protect our elective state courts from the undue influence of money. It protects appellate judicial candidates from going hat in hand to the very parties and lawyers who appear before them in court, and is a model for how elections around the country can be administered with greater integrity and how we can preserve impartiality in the courts," MacCleery continued.

In 2002, North Carolina became the first state to enact a voluntary public financing program for appellate judicial campaigns. In 2005, two potential judicial candidates and two political committees filed a complaint in federal court charging that the State's public financing law generally, and some provisions in particular, violated the First Amendment and the Equal Protection clause of the U.S. Constitution.

The Brennan Center and the State of North Carolina won dismissal of the challenge on March 30, 2007, and the plaintiffs appealed. On December 7, 2007, the Fourth Circuit Court of Appeals heard oral argument in the case and the three-judge panel unanimously affirmed the dismissal. The opinion may be found here.

The Brennan Center's brief to the U.S. Supreme Court today comes in response to petitioners' request for the Court to hear the case.

It also comes at a time when the Roberts Court has shown an increasing interest—and skepticism—of certain limits in campaign finance systems, including in a recent case, FEC v. Davis.

In Davis, the Court ruled this summer that the "unprecedented penalty" that a provision called the Millionaire's Amendment imposed on a self-financed candidate was discriminatory in the context of private financing rules that generally apply to all candidates. Petitioners seeking the judgment of the U.S. Supreme Court claim that this ruling in Davis offers a new impetus for the Supreme Court to evaluate North Carolina's system.

However, as the Brennan Center brief today explains, petitioners ignore fundamental differences between the contribution limits the Supreme Court objected to in Davis and the challenges to matching provisions in North Carolina's law.

"This case presents a completely distinct factual and legal context from that considered in Davis," the Brennan Center brief explains.

As an added reason the Supreme Court should not review the North Carolina case, the Brennan Center brief explains that none of the implications of the Davis ruling were considered in the two prior court rulings—given the very recent issuing of the Davis decision. This renders a U.S. Supreme Court consideration premature.

"Critics of North Carolina's public financing system are jumping the gun. These questions about the implications of Davis for public funding systems have not been the subject of even a single lower court opinion. It goes without saying that there can be no circuit split on an issue that has yet to be reviewed by the federal courts," stated Angela Migally, a fellow at the Brennan Center for Justice.

In addition to its public funding program for State Supreme Court and Court of Appeals candidates, this election year North Carolina is also piloting a full public financing program for three of the state's Council of State seats.

Other public funding programs around the country include Connecticut's, where 84% of the state's legislative candidates are evidently participating in the inaugural year of a Clean Elections system. In Arizona, nine of 11 state-wide officials, including Gov. Janet Napolitano (D-Ariz.) have under the Clean Elections program, and in Maine 84 percent of the state legislature won their offices as Clean Elections candidates. In total, public campaign financing programs are operating in seven states and two cities.

According to a recent North Carolina Center for Voter Education survey, 80% of voters are concerned about the impact that campaign spending by outside groups has on campaigns for state and local office. Additionally, following the trial run of the North Carolina system for judicial elections, a 2005 poll conducted by American Viewpoint, a Republican polling firm, found that 74 percent of North Carolina voters approved of continuing the system, while only 18 percent opposed its continuation.

To view a full copy of the Brennan Center brief, click here.

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