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N.C. Should Fight to Keep Publicly Funded Judicial Campaigns

Judicial elections are different than legislative races, which is why North Carolina should maintain and strengthen its judicial public financing program as a vital bulwark against improper influence.

  • David Earley
Published: October 12, 2011

Published in the Charlotte Observer.

Like North Carolina, 38 other states elect their judges. In many of those states, judicial candidates raise millions of dollars to finance their campaigns — often from the parties and lawyers who appear in court before them. One Texas lawyer summed up perfectly the danger of high spending judicial races: “In Texas, we’ve got 'jukebox justice.' You put your quarter in the jukebox, and your judge sings your tune.”

Fortunately, North Carolina has public financing for judicial elections. Candidates for the Supreme Court and the Court of Appeals can rely on public funding — instead of donations from the lawyers who argue in their courts — if they agree to a campaign expenditure limit and do not accept any private contributions for the general election. Rather than being dependent upon fleets of lawyers and special interest groups for money, judicial candidates are instead free from outside influence.

The program has been a resounding success. In 2002, the last year without public financing, attorneys and special interest groups funded 73 percent of judicial candidates’ campaigns. In 2004, that number plummeted to 14 percent. A recent poll has shown broad, bipartisan support for public financing, with 83 percent of N.C. voters considering it at least “somewhat likely” that a judge would be influenced by a campaign contribution and 79 percent considering it a “very serious problem” if a judge receives a campaign contribution from a party with a pending case. Judges have also widely embraced the program, with more than 60 percent of candidates participating in the program from 2004 to 2010.

In spite of this success, judicial public financing has recently come under attack. In May, state Rep. Edgar Starnes introduced an eleventh-hour budget amendment seeking to repeal public financing for judicial elections. After a heated debate, the amendment was withdrawn.

But foes of public financing haven’t given up. Last month they filed a lawsuit challenging the program’s “triggered matching funds” provision, which provides extra funding to candidates who face high-spending opponents. They claim these trigger funds burden the political speech of the opponents because candidates getting public funding receive more money if their opponents spend above a certain level. In June, the U.S. Supreme Court ruled 5–4 that triggered matching funds are unconstitutional in legislative races.

But judicial elections are different. Unlike legislators who respond to their constituents’ concerns, judges are meant to uphold the law impartially. Ensuring the integrity of the judiciary is a constitutional interest of the highest order. The court should uphold the constitutionality of the matching funds provision. And if it does not, North Carolina should maintain and strengthen the rest of its public financing program as a vital bulwark against improper influence.

To be sure, every dollar must be spent with the utmost care. But special interests, given the opportunity, will try to buy influence with the courts. As a union official once candidly put it, “we figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators.” In the long run, public financing is cheaper than the costs of judges for sale to the highest bidder