Part of North Carolina Public Financing Law Struck Down


U.S. District Court Judge Louise Flanagan, ruling in a lawsuit brought by two political action committees that support anti-abortion candidates, has invalidated parts of North Carolina’s law that provides public financing for judicial campaigns.

The political committees contended that a mechanism in North Carolina’s law was similar to those in an Arizona statute thrown out in a Supreme Court decision, Arizona Free Enterprise Club v. Bennett (see Gavel Grab). The judge agreed

North Carolina was the first state to provide full public financing for judicial campaigns. Under its program, candidates for appellate court seats who participate could get extra funds when they were outspent by candidates who chose not to comply with the limits and rely on private campaign financing instead.

“The court finds that the North Carolina matching funds statute is unduly burdensome and not sufficiently justified to survive First Amendment scrutiny,” Judge Flanagan wrote, according to an Associated Press article.

The court ruling doesn’t end completely the public financing program for candidates in nonpartisan races for the North Carolina Supreme Court and Court of Appeals, which has proven popular.


Groups Challenge N.C. Public Financing for Judicial Campaigns

Two political action committees that support anti-abortion candidates have filed a federal lawsuit challenging the constitutionality of part of North Carolina’s law that provides public financing for judicial campaigns.

Indiana-based lawyer James Bopp Jr. is representing the PACs, who brought the lawsuit in the wake of Supreme Court decision, Arizona Free Enterprise Club v. Bennett. That ruling struck down an important public financing mechanism in Arizona law (see Gavel Grab). North Carolina, the first state to provide full public financing for judicial campaigns, makes use of the mechanism, called triggered matching funds.

An Associated Press article about the North Carolina lawsuit quoted Damon Circosta, executive director of the N.C. Center for Voter Education as pointing out significant differences between public financing in the Tarheel State and in Arizona. (more…)

Supreme Court Roundup

With the Supreme Court out of town during August, analysts are finding more time to develop new critiques about the court’s recent or upcoming jurisprudence.

In The New Republic, Jeffrey Rosen writes a commentary entitled Strong Opinions, about Justice Elena Kagan’s prose. A taste of his critique:

“One of the most surprising developments of the last term was Kagan’s emergence as an eloquent voice—surprising because it often takes new justices a few terms to hit their rhetorical stride.”

Rosen draws heavily on Justice Kagan’s dissent in Arizona Free Enterprise Club v. Bennett, a public-financing case from Arizona (see Gavel Grab for background).

In the magazine section of the New York Times, Emily Bazelon opines that the “last term was straight-up dull,” but she points out that cases involving some of the nation’s hottest issues are coming before the court soon. She therefore provides a “a rundown of the perils and the possibilities facing liberals as the court moves toward a potentially transformative moment in its history.”

Meanwhile, Michael Kirkland of UPI wrote an article about race-based cases coming before the court. The headline declared, “Race-based affirmative action in peril.”

Wednesday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • Supreme Court Justice Elena Kagan discussed the friendly atmosphere that she has found at the nation’s highest court, and also her disagreement with the majority ruling in an Arizona public-financing case, at an Aspen Institute forum, the Aspen Times reported.
  • Wisconsin Supreme Court Chief Justice Shirley Abrahamson participated in a forum about improving the public’s understanding of the court system, according to a Wisconsin State Bar report. The State Bar’s Public Education Committee sponsored the event.
  • GOP presidential candidate Mitt Romney announced formation of a justice advisory committee for his campaign. It could play well among some voters in Iowa, where voters dumped three state Supreme Court justices over a controversial ruling on same-sex marriages, according to an Iowa Independent article.

Friday Gavel Grab Briefs

In Maine, where 80 percent of legislative candidates typically have participated in the state’s public financing system, legislators will eye fixes to the law.

The state’s Commission on Governmental Ethics and Election Practices will hold a public session Thursday and invite comments on revising the system in the wake of a U.S. Supreme Court decision, according to an Associated Press report. The commission later will make recommendations to the legislature.

This week, a federal judge struck down a provision in Maine’s law, which provided for triggered matching funds for participating candidates. His ruling followed on the heels of the Supreme Court decision, in Arizona Free Enterprise Club v. Bennett.

In these other dispatches about fair and impartial courts:

  • “This may be the golden age of Idaho’s judiciary,” declared a headline for a Twin Falls Times-News commentary, discussing especially the elevation of Justice Roger Burdick to Chief Justice of the Idaho Supreme Court.

Maine's Matching Funds Provision Struck Down

In light of the Supreme Court’s Arizona Free Enterprise v. Bennett ruling, U.S. District Court Judge George Singal has declared invalid a provision in Maine’s public financing law for triggered matching funds, reports The Associated Press.

The provision was questioned by state Rep. Andre Cushing, who did not utilize Maine’s Clean Election funding. His opponents participated in public financing and received matching funds under the provision, and Cushing still won the election:

“The question to me was what right should politicians have to use taxpayer money and how far should the government intervene into the election process using government funds,” [Cushing] said. “It left an unpalatable taste in a lot of people’s mouths.”

Now Maine legislators must decide if the entire Clean Election Act needs to be revisited.

States with similar matching funds provisions in their public finance programs must now decide how what Arizona Free Enterprise Club means for their programs (See Gavel Grab).

Commentary: High Court Ruling 'Actually Stifles Speech'

The Supreme Court’s invalidating a key public financing provision in Arizona law represented a free speech loss, although the majority opinion framed the ruling otherwise.

Mimi Marziani of the Brennan Center for Justice offered that analysis in a National Law Journal commentary entitled “A loss for ‘We the people’: The high court’s ruling in the Arizona public financing case is no win for free speech; it actually stifles speech by creating a new right to speak without response.”

She was writing about Arizona Free Enterprise Club v. Bennett. The high court struck down a provision in Arizona’s law that furnished extra taxpayer dollars to participating candidates when privately funded foes or independent groups spent more. It was called a “trigger funds” provision. Marziani concluded:

“The majority opinion largely ignores that Arizona’s program was enacted to curb political corruption by ensuring that candidates owe their campaign success to taxpayers, not fat-cat donors. [Chief Justice John] Roberts also overlooks that public financing gives regular folks — those of us without corporate connections or trust funds — the ability to compete for political office, thereby broadening the choices available to voters. Arizona’s interest in bettering its democracy was utterly disregarded.

“Instead, just as it did in last year’s Citizens United decision, the Roberts Court used the First Amendment to shield the most powerful voices — and silence everyone else. As [Justice Elena] Kagan admonished, ‘Truly, democracy is not a game.’ She’s right. But, unfortunately, this time, ‘We the People’ lost.” (more…)

Impact of Public Financing Ruling Examined

A staff attorney told a group of West Virginia legislators that the Supreme Court’s ruling in Arizona Free Enterprise Club v. Bennett blunts but does not kill the state’s pilot public funding program for judicial candidates.

This news was reported by an Associated Press article. The high court struck down a provision in Arizona’s public campaign financing law that furnished extra taxpayer dollars to participating candidates when privately funded foes or independent groups spent more. It was called a “trigger funds” provision.

Unlike the program challenged in Arizona, West Virginia’s pilot program applies to state supreme court candidates, and it contains a similar provision that could be vulnerable.

The constitutionality of public financing in general was affirmed by the ruling. Yet the ruling “leaves participating candidates vulnerable to being outspent by third parties or opponents who opt out of the program,” the AP said about West Virginia’s pilot plan. (more…)

Impact of Public Financing Ruling Weighed

What does the Supreme Court’s ruling in Arizona Free Enterprise Club v. Bennett, striking down a matching-funds mechanism in the state’s public campaign financing law, mean for elections in Arizona?

An Arizona Republic article interviewed three people involved with Arizona’s system for their analyses, and reached no conclusions. In a nutshell, the article said critics of public financing thought the ruling would lead to the demise of  Arizona’s Clean Elections system, while admirers thought the system could be reformed and endure.

A political campaign consultant, Constantin Querard, had helped conservative Republicans run for legislative office while taking advantage of Arizona’s public financing law. He remarked that he thought there was little future overall for the Clean Elections system. But he saw a potential for it in judicial elections. According to the article, “He suggests the public-finance model might be a nice fit for judicial elections, especially if voters can be persuaded to do away with merit selection for judges in Maricopa and Pima counties and go to direct election.”

Meanwhile a Los Angeles Times article was headlined, “Arizona conservatives scramble after campaign finance law’s defeat: The state’s Clean Elections Act had swept a surge of small-government Republicans into power.” (more…)

CT Public Financing Law Left Intact

It was the Supreme Court’s decision voiding an Arizona public campaign financing provision that drew widespread attention this week. Less noticed was a Supreme Court action that left intact a challenged aspect of Connecticut’s public financing law.

The high court on Tuesday dismissed an appeal that challenged Connecticut requirements for third party candidates to qualify for public campaign funds, the Associated Press reported.

One day after declaring unconstitutional the Arizona provision, the court on Tuesday “signaled something just as significant: Not all forms of public financing will raise the ire of the justices,” a Washington Post article said.

“It gives some reason to hope that the Supreme Court is not on the war path to eliminate all forms of public financing,” said Tara Malloy, a lawyer with the Campaign Legal Center, a JAS partner on campaign reform issues.

Meanwhile, a federal judge in Florida struck down a provision in that state’s campaign law that mirrored the Arizona provision found unconstitutional by the Supreme Court, according to an Orlando Sentinel article. The Arizona provision for “trigger funds” allowed publicly funded candidates to get additional money when privately financed candidates or independent groups spent more. (more…)