Federal Appeals Court Upholds North Carolina's Judicial Public Funding Law

May 1, 2008

For Immediate Release

Bradley, BerlinRosen Public Affairs, 646-452-5637

Unanimous Fourth Circuit Panel Affirms Dismissal of Constitutional

North Carolina—State citizens concerned about fair and impartial courts celebrated a major victory
today in their defense of the state's landmark public funding program for
appellate court candidates.  The North
Carolina Judicial Campaign Reform Act gives participating judicial candidates a
lump-sum grant of public funds as well as limited funds to match high spending
by the candidates' privately-financed opposition, including opponents and
independent groups.  A trial court previously had dismissed challenges to the
matching funds provisions, as well as reporting requirements and a 21-day ban
on contributions needed to implement those provisions, and the Court of Appeals
unanimously affirmed the dismissal.

"This is an extremely important decision for the battle to protect our
elective state courts from the undue influence of money," said Deborah Goldberg,
Democracy Program Director at the Brennan

for Justice at NYU School of Law, which served as lead counsel for intervenors
in the case.  "This ruling preserves a
campaign finance system that protects appellate judicial candidates in North Carolina from
going hat in hand to the very parties and lawyers who appear before them in
court," stated Goldberg.   

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. Opponents of the law argued that, by providing additional
matching funds, the law discouraged spending by non-participating candidates
and their independent supporters.

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 Court
of Appeals heard oral argument in the case-North
Carolina Right to Life Committee Fund for Independent Political Expenditures  v. Leake
, No. 07-1454-and the three-judge
panel unanimously affirmed the dismissal today. 
The opinion may be found here.

Relying on extensive precedent from around the country, and particularly on
the U.S. Supreme Court's 1976 decision in Buckley
v. Valeo
, the Fourth Circuit found that North Carolina's disbursement of
matching funds to voluntary participants in the public financing system "furthers,
not abridges, pertinent First Amendment values."  Likewise, the court found that Act's
reporting and disclosure requirements "advance" the state's important interests
in "providing the electorate with information" and in "deterring actual
corruption" and the appearance thereof. 

Finally, the Court recognized that:

The concern for promoting and protecting the impartiality and
independence of the judiciary is not a new one; it dates back at least to our
nation's founding, when Alexander Hamilton wrote that "the complete
independence of the courts of justice is peculiarly essential" to our form of
government. ... We conclude that the provisions challenged today, which embody North Carolina's effort
to protect this vital interest in an independent judiciary, are within the
limits placed on the state by the First Amendment.

The State of North Carolina
is the lead defendant in the case.  The Brennan Center
is joined as counsel for the intervenors-defendants by James G. Exum, Jr., and
Manning A. Connors of Smith Moore LLP in Greensboro,
North Carolina.  The intervenors are Common Cause North Carolina and James R. Ansley, a candidate in the 2004 North Carolina judicial

Three amicus briefs were filed in
support of the system.  The Campaign Legal Center
filed an amicus brief on behalf of
ten organizations around the country concerned about judicial
independence.  The law firm of Simpson,
Thacher & Bartlett, LLP filed an amicus
brief on behalf of eight former North
Carolina judges. 
An amicus brief on behalf of
Democracy North Carolina was filed by Prof. Erwin Chemerinsky and Anita S.

The Brennan Center
has successfully defended state public financing laws in Arizona,
Connecticut, and Maine. Click here
for more information.