The Legislature took a giant step forward this year when it extended to judicial campaigns the same campaign contribution limits that apply to other elected state officials. But the First Amendment, as interpreted by the U.S. Supreme Court, prevents the Legislature from limiting independent expenditures by an individual or organization in support of a candidate.
Special interest groups and PACs have quickly taken advantage of this loophole, mounting their own campaigns to support favored judicial candidates through independent expenditures.1 These independent expenditures threaten to overwhelm the candidates' own campaign funds and to compromise the independence of our judiciary.
Is there any solution to this problem, or must the citizens of Washington stand helplessly aside as this tsunami of special interest money washes away impartial judges and replaces them with judges dedicated to a special interest agenda? Faced with this same problem in 2002, the North Carolina Legislature passed the Judicial Campaign Reform Act (JCRA), providing public financing for appellate and supreme court elections.2 Could this model work in Washington?
The North Carolina System
The JCRA provides public financing for appellate court elections; trial courts are not included. To qualify in 2006, a court of appeals candidate must file a declaration of intent to participate and then raise at least $34,680, but no more than $69,360, during the primary period, and part of this minimum/maximum amount must be collected from at least 350 North Carolina voters in contributions between $10 and $500. The supreme court requirements are slightly higher.
In the primary election, candidates use only their qualifying contributions to run their campaigns, unless they are outspent by a non-participating candidate. Qualifying candidates who win their primaries are then entitled to receive a lump-sum disbursement of public funding to operate their campaigns in the general election. In 2006, candidates for the court of appeals will receive $144,500 and candidates for the supreme court receive about 50 percent more.
Rescue funds are designed to ensure that a participating candidate is not swamped by a non-participating candidate who spends great sums of personal wealth or raises big money from special interests. Under this plan, rescue funds are triggered in either the primary or the general election, whenever a non-participating candidate exceeds the trigger amount. The trigger amount is equal to the spending limit imposed upon the participating candidate (which varies depending upon the office).
For example, a participating candidate for the chief justice of the supreme court is limited to spending $74,280 in the primary and $216,650 in the general election. So, if a non-participating candidate spends more than either of these amounts in the applicable election, rescue funds would be triggered and distributed to the participating candidate. (Rescue funds are available for up to two times the original spending limit.)
Three sources provide funding for the North Carolina system: a voluntary checkoff on income tax returns, similar to the presidential election fund on federal income tax returns; a portion of each licensed attorney's state bar dues; and private contributions.
The JCRA appears to have worked well in the few years it has been in effect. In 2004, 14 out of 16 candidates participated, including four of the five winners. Overall, candidate spending was lower than the total spent in 2000 - a marked contrast to Washington, in which average spending by Supreme Court candidates increased by 50 percent from 2000 to 2004, while median spending more than doubled.
In 2006, 14 of 18 appellate candidates in North Carolina attempted to qualify for public funding. Only one of the candidates who will appear on the general election ballot failed to qualify. All told, eight of the 12 general election candidates are participating.
A Model for Washington?
North Carolina has a larger population than Washington (8.7 million to 6.3 million), but fewer appellate judges. On the other hand, Washington residents enjoy a median household income of $48,185, compared to North Carolina's $39,438.
In North Carolina, 15 court of appeals judges and seven supreme court judges serve eight-year terms. In Washington, 22 court of appeals judges serve six-year terms, while nine supreme court judges serve nine-year terms. Thus, Washington has potentially more elections to fund with a smaller, but more well-to-do, population.
Obviously, Washington could not fund a public financing program through an income tax checkoff, but would have to resort to other sources, presumably the state general fund. The JCRA imposes a fee of $50 per year on all attorneys. Such a fee in Washington on active attorneys would produce $1,250,000 per year. Another potential source is court filing fees.
The total cost of the North Carolina program is $2.1 million to $2.6 million per year, which includes the cost of distributing a voter guide. It seems that some combination of general fund revenue, attorney dues and possibly an addition to filing fees would be adequate to raise this amount of money in Washington.
Adoption of a North Carolina-like system in Washington would help free Washington judicial elections from the tyranny of fund raising and special interest money. If public financing could keep pace with special interest funds, judicial candidates could more readily maintain their independence and impartiality, free from the temptation to commit to ideological positions in order to solicit campaign support.
Public financing also would open the door to meritorious candidates who lack the broad network of financial supporters to raise substantial campaign funds. One would also expect that public financing would benefit sitting judges, who might not have represented wealthy special interests and might not have a ready network of supporters.
1 See "PACs Put Judicial Impartiality at Risk," Bar Bulletin, July 2006, at 1.
2 N.C.G.S. 173-278.61, et seq.
