Spotlights 365 - Taxpayer Financing of N.C. Elections: Clearly unconstitutional after the Supreme Court decision in Davis v. FEC
January 14, 2009
Key facts:
In June 2008, the U.S. Supreme Court in a case called Davis v. Federal Elections Commission struck down a federal law that punished Congressional candidates for spending too much of their own money on their campaigns. Under that law, once personal spending exceeded a threshold level, the opposing candidate was given fundraising advantages.
According to the Court, the punishment was a substantial burden on the free-speech rights of the self-financed candidates and there was no compelling interest for this type of speech regulation.
North Carolina’s public (i.e.) taxpayer financing systems for appellate judicial races and select Council of State races also would be unconstitutional. Any reasonable interpretation of Davis would lead to this conclusion.
As in Davis, the N.C. system punishes candidates for spending too much. Once a candidate who has chosen not to accept public funding (a traditional candidate) spends beyond a threshold level, then his opponent who has decided to take public funds (a subsidized candidate) is given what are called “matching funds.” For example, if a traditional candidate spends $5,000 above the threshold level, the subsidized opponent is provided $5,000 as well.
The burden to traditional candidates is even worse than that burden on the self-financed candidates in Davis. For example, traditional candidates have limited control over whether matching funds are triggered because spending by independent groups, such as PACs, also can trigger matching funds for their opponents.
North Carolina’s taxpayer-financing systems also punish independent groups for their speech because they can trigger matching funds to the candidates those groups oppose.
Legislators should not sit idly by and let North Carolinians’ First Amendment rights be trampled on. These taxpayer-financed systems should be repealed, or at the very least a moratorium should be placed on them.
