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Private Citizens Required to Follow Law, but the Government Isn’t

Technically, it isn’t true that the government doesn’t have to follow the law, but don’t tell that to Chapel Hill and the State Board of Elections. Here’s what has happened, and I hope it makes you as angry as it makes me.

Last week, the United States Supreme Court held that matching funds (or rescue funds) are unconstitutional.

Chapel Hill’s taxpayer-financed campaign program has rescue funds and the town is planning on going forward with their unconstitutional rescue fund scheme, despite the Supreme Court opinion.

The town attorney, Ralph Karpinos, is trying to distinguish the town’s system from the Arizona system in the case (I just spoke to the attorney on the phone).

Here’s what the Supreme Court said:

Arizona’s program gives money to a candidate in direct response to the campaign speech of an opposing candidate or an independent group. It does this when the opposing candidate has chosen not to accept public financing, and has engaged in political speech above a level set by the State. This goes too far; Arizona’s matching funds provision substantially burdens the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.

A Couple of Key Points:

Does Chapel Hill punish a nonparticipating candidate?

Yes. Like the Arizona program, once a threshold amount of money has been spent, rescue funds are triggered to the opponent.

Does Chapel Hill punish independent groups?

Yes. Like the Arizona program, independent expenditures can trigger rescue funds.

Chapel Hill is making the absurd argument that since the rescue funds are not provided on a dollar-for-dollar basis like Arizona, then the Supreme Court case doesn’t apply. For example, in Arizona and with NC’s taxpayer financing for judges, if a candidate spends $10,000 beyond the threshold level, the opponent receives $10,000. With Chapel Hill, the candidate (or independent groups) triggers a one-time lump sum to the opposing candidate.

The reason Arizona’s program was shot down and for that matter the Millionaire’s Amendment was shot down is because the government can’t punish free speech through triggering mechanisms. Every legal problem that exists with the Arizona program exists with the Chapel Hill program.

One more quote from the case:

It is not the amount of funding that the State provides to publicly financed candidates that is constitutionally problematic in this case. It is the manner in which that funding is provided–in direct response to the political speech of privately financed candidates and independent expenditure groups.

Chapel Hill’s interpretation doesn’t pass the laugh test and it hopefully will bring lawsuits.

Or, the legislature could (and should) just repeal the program.

I should point out that the State Board of Elections (SBOE) administers this program, so they deserve as much blame as Chapel Hill. The SBOE is losing credibility (more credibility) through its actions.

The SBOE enforces convoluted and often misguided campaign finance laws that they often can’t even figure out, but if you are a private citizen who needs to comply with the regulations, you better do so "properly" even if there’s confusion as to what the law actually requires. If you don’t, you could find yourself in jail.

The SBOE (and Chapel Hill), on the other hand, knows exactly what the law prohibits when it comes to taxpayer financing, yet they don’t care because there’s no reason to. Who is going to make them follow the law? We need a "State Board of Elections" for the State Board of Elections.

If this all sounds minor, bear in mind, the state is knowingly violating individual rights.

One final point:

Here’s a link to the information session where Chapel Hill and Kim Strach from the State Board of Elections explain Chapel Hill’s unconstitutional taxpayer financing program.

Who else was on the panel at the information session? Bob Hall from Democracy North Carolina; a representative from an advocacy group that has an interest in "nudging" people to participate in Chapel Hill’s taxpayer financing program. He is also an advocate for other taxpayer financing programs.

At a minimum, it was completely inappropriate for an advocate to be a panelist at such an event. It also again raises questions about the actions of Chapel Hill, and possibly (depending on their involvement in organizing the panel), the State Board of Elections.

Eugenics Report Released

My new report on forced sterilizations in North Carolina has just been released. You can access it here.

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