Later this year North Carolina voters will have a chance to do something rare – elect four of the seven justices on the State Supreme Court. There will likely be record amounts of money poured into those races. So much so that some are worried that justice may seem for sale.
The North Carolina Supreme Court is a down ballot race. Well below US Senator, state legislators, even below offices like the Commissioner of Insurance. But don’t be fooled – the highest court in the state is just as important as the executive or legislative branch says Michael Bitzer, political science professor at Catawba College. Even if it is less known. "I bet if you asked anybody who are these candidates right now, out of 100, one or two, if they were lawyers, might know."
In 2012, there was only one seat on the State Supreme court up for election. Even if you don't remember who the candidates were, you probably remember the banjo ad.
The candidates were Paul Newby and Sam Ervin. Their race broke North Carolina spending records for a judicial contest. Some 4 million dollars all told. Most of that money came from outside groups that aren’t required to produce their donor lists.
But outside groups aren’t causing the concern this year. What is? The fact that last year, North Carolina abolished public financing of judicial races.
If you want to see how that has changed things, just look in Judge Sam Ervin’s trunk. You'll find a large cardboard box loaded with handouts filled with campaign information and contribution envelopes.
Judge Ervin is again hoping to become Justice Ervin. When he ran against Newby in 2012, Ervin only had to raise around $80,000 on his own before public funding kicked in. All told his campaign would have access to roughly $350,000. And that would be all his campaign could spend.
Now the caps are gone and so are the public dollars. So every penny Ervin's campaign needs for TV ads, direct mail and, yes, those election handouts has to be raised directly. Ervin says the pool for people willing to give to Supreme Court candidates is limited to corporate officers, friends and family and people who know and are in the legal system… people like lawyers. "It is inevitable that you call up members of the bar and other folks that you think of might be willing to contribute money and you ask them for it," says Ervin, "Is that comfortable? No. Do I like doing that? No. Is it a good thing for judges to do that? No.
Ervin estimates he may need to raise more than a million dollars.
There are rules that bar judicial candidates from seeking contributions from lawyers with cases pending on their current docket. But they can still ask for donations from others in the same law firms. And justices on the state Supreme Court serve eight-year terms so there is no way of knowing which lawyers will end up arguing before the court long after a campaign is over. All this means a judge may hear a case involving – or being argued by one of their campaign contributors. That can create, at the minimum, the perception of a conflict of interest. "When you do anything to create the impression that a seat on the court is for sale than I think the legitimacy of the system as a whole is harmed." says Ervin.
To some these changes have made the system better.
"I’m not complaining about the end of taxpayer funding of campaigns, I’m celebrating it." says John Hood, president of the John Locke Foundation, a conservative political think tank.
Hood says money has always and will always find ways into elections judicial or otherwise. You ban it in one place and it pops up in another. He puts the effort this way, "You are stumbling around in a pen chasing a greased pig. And you can pretend that its heroic and you can pretend that it’s a good faith effort to improve the process but you’re just getting muddy."
Hood adds, justices run for statewide seats. The $350,000 of public financing they received, and were limited by, made it impossible to run an effective statewide race. "If we’re going to have judicial elections, they have to be adequately financed," says Hood, "I think the only way they will be adequately and transparently financed is by campaigns raising and spending the money."
The next court will likely decide cases on the future of teacher tenure in North Carolina, school vouchers and other controversial laws passed by the general assembly.