Bill Ending Election Matching Funds Program On To Senate | Eastern North Carolina Now

   Publisher's note: The author of this fine report, Dan Way, is an associate editor of the Carolina Journal, John Hood Publisher.

House passes measure 110-0; Supreme Court decision put system in jeopardy

    RALEIGH     Without dissent, the state House Thursday passed House Bill 297, which repeals all matching funds provisions in state judicial and Council of State public financing programs. After the 110-0 vote on the House floor, it was moved to the Senate, which assigned the bill Monday to that chamber's Rules Committee.

    "Due to a U.S. Supreme Court ruling, the state has not issued these emergency or rescue funds since 2012 and cannot do so. So this does, in fact, just codify what is the current law," said Rep. David Lewis, R-Harnett, primary sponsor of the measure. Even advocacy groups that continue favoring public financing of elections agree that the high court's 2011 decision has made North Carolina's matching funds programs problematic.

    Under North Carolina's public financing for judicial and Council of State elections, candidates who use only government-provided money in their races are entitled to matching or "rescue funds" in primary and general elections.

    The trigger for releasing that money is when an opponent running a campaign with private funds spends more than the publicly financed candidate. The trigger also can occur from spending by the privately financed candidate in combination with independent parties supporting the privately funded candidate or opposing that candidate's publicly funded opponent.

    At a House committee meeting, Rep. Deborah Ross, D-Wake, asked about the financial ramifications of Lewis' bill.

    "Is there a pot of money that's still around that could have been used for rescue funds that now will go back to the General Fund?" Ross asked.

    Lewis said there is a fund with about $6.2 million, "but there is no intent in this bill that I am aware of to touch those funds."

    Jeanette Doran, executive director and general counsel of the North Carolina Institute of Constitutional Law, spoke favorably of the bill.

    "Going back through our state's history of matching funds and looking through the case law, it's pretty clear that our matching funds provisions aren't enforceable," Doran said.

    "I think it's long overdue and I think it's not a breathtaking change in the law. All it would do is bring North Carolina's statutes into compliance with the First Amendment," she said.

    Indeed, she said, "the Arizona case that came out that I know is the object of the legislature's concern, there's a footnote in there that notes that North Carolina's matching funds provisions are substantially similar to those that were struck down" by the U.S. Supreme Court.

    Doran was referring to the 2011 case Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, in which the U.S. Supreme Court ruled that Arizona's matching funds provision was an unconstitutional restriction on free speech.

    In a North Carolina case last year, U.S. District Court Judge Louise Flanagan struck down the state's matching funds provisions. The case was brought by lawyers for political action committees linked to North Carolina Right to Life. The anti-abortion organization said it had not been spending money on judicial elections since 2006 for fear candidates it opposed would get more campaign funding.

    Bob Phillips, executive director of Common Cause North Carolina, said although his organization liked the matching money component, it supports Lewis' bill because it brings North Carolina into compliance with the Supreme Court ruling.

    However, he noted, out of the four appellate court races last year, all were publicly funded and the rescue fund wasn't needed.

    "I think it only actually had been used like twice in the history of the program," Phillips said.

    "Eighty percent of the candidates who've had contested races since 2004 have actually opted into the program," Phillips said. Participants include both Republicans and Democrats.

    "My organization would like to see public financing for other races," Phillips said.