The North Carolina legislature passed what Democracy NC termed an “Anti-Voting Bill” on July 26 that Gov. Pat McCrory has said he plans to sign. While much of the media attention has focused on the provisions that limit opportunities to vote, the bill also included a repeal of the state’s renowned public financing program for high court candidates. In 2002, as other states began experiencing big-money judicial elections, North Carolina implemented a public financing program, through which qualified candidates for appellate courts could obtain public funds for their campaigns by agreeing to spending restrictions. This program proved enormously popular with judges and voters, and a recent study proved that public, rather than private, campaign cash led voters to trust that judicial decisions were not influenced by campaign contributions.
The state’s public financing system was overwhelmed in the 2012 North Carolina Supreme Court election, when independent spending on campaign ads far exceeded the amount allotted to the candidates through public financing. Much of this money came from organizations connected to multi-millionaire and conservative activist Art Pope, whose organizations donated money to keep a slim conservative majority on the high court. After the election, Gov. Pat McCrory appointed Pope as his budget director, a role in which he personally lobbied to kill publicly financed elections and paved the way “Pope-funded” elections for the North Carolina Supreme Court.
The “anti-voting bill” also repealed several disclosure requirements that apply to the political television ads funded by Art Pope. In the post-Citizens United world, many states have increased their disclosure requirements, so that corporations and wealthy donors cannot secretly influence elections. But in North Carolina, the response from Republican legislators is to cut back on the state’s disclosure requirements, so that voters don’t know who is paying for political ads.
As Democracy NC noted, the bill “ends the state’s pioneering ‘Stand By Your Ad’ law, which requires the candidate or CEO to appear on television or radio and say ‘I am (candidate or CEO) and I approve this message.’” The bill also eliminates a corporate independent spending disclosure rule and a requirement that independent spenders running ads from May to September of an election year must disclose their donors.
In 2012, North Carolina’s campaign finance disclosure laws were crucial to determining who was funding the ads which helped conservative Justice Paul Newby keep his seat on the high court. Nearly half of the $2.5 million worth of independent spending to help Justice Newby came from the Republican State Leadership Committee, which was involved in a lawsuit pending before the state Supreme Court. The committee had helped draft a redistricting map, and a lawsuit accused the map’s sponsors of discriminating against African American voters in drawing the boundaries of congressional districts. While the lawsuit from civil rights groups was pending, the RSLC spent more than a million dollars to keep a slim conservative majority on the bench. Justice Newby has thus far refused to recuse himself from hearing the redistricting case.
Rep. Rick Glazier said that, “Some justices may fear that there may be a recusal motion filed against them in the next year.” After benefiting from millions of dollars in independent spending from conservative and corporate groups in 2012, Justice Newby personally lobbied the legislature for a change to ethics rules which will make the justices less accountable for violating rules designed to prevent conflicts of interest from undermining the integrity of the judiciary.
Under the current system, panels of appeals court judges hear complaints against the justices. This system is an improvement over other states, and the federal courts system, in which the high courts are left to discipline themselves.
Under the new system, however, North Carolinians will have to trust the justices to police themselves on ethical issues, and they’ll have to trust them to do it in secret proceedings. The justices are required to recuse themselves from any cases in which their “impartiality may reasonably be questioned”—a vague standard that does not mention campaign contributions as a basis for questioning a judge’s “impartiality.”
The new system will “give the justices….the sole authority to discipline judges—including themselves—and allow them to decide if, when and who to discipline in secret,” according to NC Policy Watch. The bill makes ethics complaints and investigations confidential unless a four-justice majority on the court finds that ethics rules were violated. Under this new system, the court’s four-justice majority will be able to benefit from the new big-money campaign finance system and then vote along party lines to keep any ethical investigations involving that money under wraps.
The North Carolina legislature is changing the law to allow more money to influence judicial elections, and it is weakening the rules that prevent judges from hearing cases in which they are or appear to be biased or impartial. North Carolina may be heading the way of Wisconsin, which saw its high court elections flooded with money after repealing its public financing program and weakening its ethics rules. The court was torn apart as political factions developed among the Justices, and the court began issuing more rulings along party lines. The tension reached a breaking point in 2011, when one justice put his hands around the throat of another justice during an argument.
The Wisconsin justices have deadlocked—along party lines—over ethics decisions, including a complaint resulting from the physical altercation. Wisconsin Supreme Court Justice Ann Walsh Bradley says that this “hyper-partisanship” resulted from the millions of dollars in campaign cash that flooded Wisconsin’s high court elections. Is that what North Carolina wants for its state Supreme Court?
Billy Corriher is the Associate Director of Research for Legal Progress