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Judicial races and the taint of money, politics

The Brennan Center for Justice and Justice at Stake, two nonpartisan groups, released a report Thursday about judicial races that should raise serious concerns to anyone who wants to ensure an unbiased and fair judiciary. It should be of particular concern to us in North Carolina. We play a starring role in some disturbing practices and trends that don’t bode well for court judgments that are untainted by politics and money.

Among the findings?

•  States saw record levels of spending on television advertising in high court races for the 2011-2012 election cycle. The $33.7 million far exceeded the previous two-year record of $26.6 million in 2007-2008. Last year alone, more than $29.7 million was spent to air TV ads, topping the single year record of $24.4 million in 2004. Total spending on judicial races was slightly lower than in the last presidential cycle of 2007-08, at $56.4 million in 2011-12 from $57.1 million.

•  Special interest groups by themselves spent a record $15.4 million on TV ads and other electioneering in high court races in 2011-12, accounting for more than 27 percent of the total spent on high court races. This was more than 50 percent higher than the previous record of $9.8 million in independent spending by interest groups in 2003-04, which comprised 16 percent of total spending.

•  National groups got involved in judicial races in unprecedented numbers. Major spenders in North Carolina included the Republican State Leadership Committee and Americans for Prosperity, financially supported by the billionaire Koch brothers.

Even more troubling for the Tar Heel State, N.C. legislators unwisely voted this summer to rescind one of the powerful tools available to states to help stymie the influence of money – public financing for judges. Noted the authors of the report: “First introduced in [North Carolina in] 2002, public financing was beloved by justices, who no longer had to worry about spending all their time raising money by calling up lawyers who would appear before them. Public financing also was popular with the public, and it acted as a heat shield, keeping away special interest groups with an agenda. There was less incentive for them to come into the state.

They’re right. N.C. judges and three former N.C. governors – a Democrat and two Republicans – appealed to lawmakers both publicly and in letters to keep public financing to no avail. More than 200 business leaders statewide joined in that appeal. The judges wrote that the “public financing program is not a panacea” but it gives “qualified and credible judicial candidates access to funds necessary to campaign statewide without having to rely on sources that might be questioned by the public as potentially influencing judicial elections.”

Hopefully, N.C. lawmakers will read the Brennan report and reinstitute public financing in the next election cycle.

The influence of big money in judicial races was apparent in the N.C. Supreme Court race last fall. Both candidates – incumbent Justice Paul Newby and Appeals Court Judge Sam Ervin IV – chose to receive public financing, a combined $480,200 for both of them. But the 2010 Citizens United v. FEC U.S. Supreme Court ruling allowed unlimited money to come into the race from outside sources.

A flood of cash came into the state from conservative groups to help Newby, who won. As the Brennan/Justice at Stake report notes, “the Super PAC North Carolina Judicial Coalition, backed by conservative and business interests, spent nearly $2.9 million in its efforts to reelect Newby, making it the biggest spender in the state.” The report adds: “North Carolina’s Supreme Court race was also targeted by the conservative Americans for Prosperity, a nonprofit social welfare group linked to the billionaire brothers Charles and David Koch, which spent $250,000 in support of Justice Newby – AFP’s largest judicial advocacy effort ever.”

Ervin too “benefited from some independent spending,” the report says, though to a much lesser degree. His independent money – $270,000 – came principally from the N.C. Citizens for Protecting Our Schools, with funding from the National Education Association. But observers say the public financing program helped Ervin run a competitive race. Ervin lost by fewer than 150,000 votes. Notes the Brennan/Justice at Stake report: “By ensuring that Ervin had the resources to make his case to the public, North Carolina’s public financing system succeeded in giving each candidate a voice even in the face of massive outside spending.”

In other states, public financing helped winning judicial candidates facing big-monied opponents, the report said. In West Virginia, one of four candidates vying for two open seats opted to participate in a pilot public financing program. That candidate won over a candidate that had more than three times as much money in her campaign coffers.

North Carolinians already knew the value of public financing. In 2002, the last year before the state began public financing, 73 percent of campaign funds for judicial candidates came from attorneys and special interest groups. By 2004, after public financing was fully in play, that number had dropped to 14 percent.

Statewide polls have consistently shown public support for public financing for candidates. And support is bipartisan. Earlier this year, a statewide poll showed 67 percent of Republicans, 69 percent of Democrats and 65 percent of unaffiliated voters favored it.

A big reason the legislature opted for a public financing program in 2002 was to protect judicial candidates from the detrimental effects of increasingly large amounts of money being raised and spent to influence election outcomes. That’s even more important now that Citizens United has, as the Brennan/Justice at Stake report rightly notes, “unleashed unlimited independent spending on elections.” That spending, the report adds, “cast a long shadow on the 2011-2012 judicial election cycle.”

Nationwide, residents should be very concerned. In North Carolina, lawmakers should at least reinstate a tool that has proved valuable in mitigating the influence of money and special interests.

Email: fflono@charlotteobserver.com.
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