Paying the Freight for Judges

Paying the freight for judges

BY STEVE FORD, Associate Editor Published: Aug 23, 2009 02:00 AM Modified: Aug 21, 2009 07:19 PM

Maybe Howard Manning Jr., the force of nature who is king of all he surveys from his judge's perch in Wake County Superior Court, had a raw nerve. Maybe he didn't like having to fork over $50 that some overambitious legal lightweight could then draw upon to help finance his or her campaign for a judicial post higher than Manning's own.

What happens to raw nerves is that sooner or later, they get touched. Now we don't really think Manning would base a decision on personal pique rather than his reading of the law. But a suit brought by the distinguished windmill-tilter Bob Orr, former state Supreme Court justice, on behalf of some disgruntled Mecklenburg County attorneys seems to have made Manning wince, as if he felt their pain.

The attorneys objected to the $50 assessment laid on them and other members of the North Carolina bar under the state's public finance program for judicial races. This is the program, a national trailblazer, by which candidates for the state's appellate courts can draw on public funds to pay campaign expenses.

The great advantage to such an approach is that it means these campaigns no longer are financed largely by contributions from attorneys and interest groups, all of which might have business before the very judges they helped to elect. The objection, as framed by the libertarian-minded Orr, was that people making involuntary payments were being forced to subsidize campaigns of candidates who they might think were judicial disasters waiting to happen.

The $50 payments generate a little more than $1 million a year for the campaign fund. Another $1.2 million per year comes from voluntary check-offs on state income tax returns. During the last round of judicial elections, 11 out of 12 candidates in contested races were allowed to tap the fund for around $2 million. The fund also pays about $600,000 a year to compile and distribute a voters guide.

Manning recently declared that attorneys can be required to keep paying the $50, but must be given a chance to opt out of the campaign funding. If they do, their money will go to support the voters guide only. Many enlightened lawyers doubtless will continue to support the fund, and its operation doesn't appear threatened.

But is there an unfortunate precedent here? Bob Hall says there could be. The executive director of Democracy North Carolina points to other public financing programs involving some of the Council of State posts. Those programs also are meant to finesse conflicts of interest arising when candidates raise money from people over whom they have regulatory power. And some include assessments not unlike the one on lawyers. Might insurance agents, for example, argue that they shouldn't be required to help fund campaigns for insurance commissioner? Hall says such payments are fair, since there is a benefit to the industry when the integrity of the commissioner's office is enhanced.

Manning based his ruling on a First Amendment argument -- basically, that the attorneys couldn't be compelled via their $50 payments to speak, as it were, in favor of candidates they deplored.

But if anything is clear, it's that torrents of special-interest money can twist the democratic process like a pretzel. When it comes to the election of judges, it can throw a kink in justice itself. That's why North Carolina, by giving judicial candidates a way to pay for their campaigns that's insulated from old-fashioned fundraising, is so admirably ahead of the curve.

Who's not? Nobody likes to pick on the great state of West Virginia, but a situation there got so bad that the U.S. Supreme Court had to cut a switch and haul some folks out back.

A contract dispute involving a coal company resulted in a $50 million jury verdict against the company. The outfit's president then bankrolled an independent campaign boosting a candidate for the state Supreme Court of Appeals -- where an appeal of the verdict was headed. The coal mogul's $3 million dwarfed other spending in the race, and his man, Brent Benjamin, won.

Could Benjamin in good conscience participate in the case? Good conscience or no, that's what he did, denying requests to step aside. He voted in favor of the coal company, which prevailed 3- 2.

This was more than the high court in Washington, or at least a narrow majority of its members, could stomach. In June, by a 5-4 vote, it threw out the West Virginia ruling on the grounds that Benjamin should have recused himself.

Even with no quid pro quo or proof that Benjamin owed his soul to the coal boss, the large amount of money spent on his behalf created a presumption that he was biased, the Supreme Court concluded. Independent campaigns are tough to regulate, and they've cropped up in North Carolina as well. But public financing of their races should help keep this state's judges from falling down a deep, dark hole.

Editorial page editor Steve Ford can be reached at 919-829-4512 or at [email protected].