The U.S. Supreme Court earlier this year declined to consider a challenge to a North Carolina public financing system for judicial elections involving what have now become controversial “equalizing” funds, additional public funds which are made available if publicly funded candidate is being outspent by privately funded opponents.
This appeal to the Supreme Court was brought soon after the court’s 2008 decision in Davis v. FEC, in which the court majority cited approvingly several cases that had held against these so-called “equalizing” funds on 1st Amendment grounds.
The Brennan Center for Justice has an excellent summary of the North Carolina case, now cited as Duke v. Leake, including links to all the key documents from both sides as the case came up through the courts.
Plaintiffs in the appeal argued that the Supreme Court’s Davis decision provided sufficient reasons for the court to now explicitly reject equalizing funds. However, those defending the public financing system argued that the North Carolina system was sufficiently distinct from the one considered in the Davis case to pass Supreme Court scrutiny.
These positions are argued out in the documents filed for and against the Petition for a Writ of Certiorari, and are worth reading (or at least scanning for future reference).
Because the Supreme Court declined to hear the case and instead let the North Carolina decision and the public financing plan stand, proponents of publicly funded elections have been citing this case as evidence that approaches using equalizing funds, like Hawaii’s experiment due to begin in Hawaii County, are legal.
However, that argument may be premature. In arguing that the Supreme Court should let the North Carolina case stand, attorneys favoring public financing presented two arguments. First there was a substantive argument, in which they said the case doesn’t actually conflict with the Supreme Court’s decision in Davis v. FEC, and that North Carolina’s voluntary public financing system is legal.
But they followed this with a purely procedural argument, pointing out that none of the issues raised by the Davis case, including the 1st Amendment implications of equalizing funds, were considered by the lower courts as this case made its way up on appeal. This case had already been decided by the 4th Circuit Court of Appeals before the Supreme Court case in Davis introduced new factors to consider. Therefore, none of the arguments now being made against equalizing funds have yet been scrutinized by the appeals courts.
In summarizing, attorneys for the proponents of public funding wrote:
To the extent any claim might be made that Davis may also apply to such systems, the Court should allow the lower courts to consider the issue as it may come before them, allowing analysis to percolate and develop, rather than
acting prematurely to decide questions no other court has had the opportunity to consider fully. For this reason, the petition should be denied.
Although we might be tempted to accept the substantive argument as the basis for the Supreme Court’s decision to decline to review this case, it seems more likely that the procedural argument prevailed.
This is sure to mean that the question of the legality of equalizing funds incorporated into public finance systems is going to remain a nagging problem until a post-Davis case makes it as far as the Supreme Court.
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How will news reach the public in a post-newspaper world?
This telephone pole caught my eye a week or so ago, displaying clear evidence that it has long served as a means of community communication. Generations of staples, tacks, and nails have held flyers in place for public consumption. It’s just a reminder that there are alternatives and that the flow of information, like the flow of a river, will find a way to get through. Or is that too optimistic?
Last night’s Island Issues on PBS Hawaii was a low key but quite extraordinary program. Star-Bulletin political reporter and columnist Richard Borreca did an excellent job as host with guests Pat Hamamoto, superintendent of education, and Board of Education chair Garrett Toguchi. Rarely does the public get to see such open warfare and intense disagreement between a state department and the governor. This was one of those rare occasions. Borreca did a good job of not taking a position on the issues that were raised, and instead creating space for Hamamoto and Toguchi to present their counter to public pronouncements by the governor and her representatives. Good job by all.
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And, of course, it’s another Feline Friday. Yesterday afternoon we strayed from the path and went around the corner to visit the two remaining puppies. Our friends are keeping both of these. I came back with a bunch of great pictures, which I’ll post in a couple of days. But when we got back home, I had to chase cats around in order to get enough photos from the regular Friday gallery. In the process, I had to apologize to the cats for the temporary immersion in the world of dogs. In this photo, Mr. Romeo seems to be considering the matter. I think he forgave me.
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A reader quickly responded this morning via email to my photo of a well-used telephone pole:
Why do you continue to equate the Davis case with schemes like the one on the big Island Ian? There’s a huge and glaring difference in that the law in Davis put restrictions on the non-publicly financed candidate whereas the one on the big island- and apparently the NC law rejected by SCOTUS- archived equalization ONLY by upping the amount paid to the publicly financed candidate, not by restricting the privately financed candidate. You seem to ignore that fact every time you write on the subject.
Even if the NC case was sent back for the circuit court to deal with- which seems like grasping at straws to me- the SCOTUS, by allowing it to stand, apparently recognized the two laws are miles apart, most likely on the on the pertinent issue of restricting the free speech rights of the candidate that shuns pubic financing.
You ask:
Well, no, I don’t ignore it. But you’re not hearing what I’ve been saying. The Supreme Court’s comments in Davis that are relevant didn’t refer to what you see as a “huge and glaring difference”. The 1st amendment concern wasn’t that the law put an artificial cap on private fundraising, but that the equalizing funds created a disincentive that restricted the 1st amendment right of those third parties, either campaign contributors to the privately funded candidate or those making independent expenditures. As I read the Davis decision, it was the devaluation of those third parties support for their candidate that drew disapproval from the court majority. The differences you’re focused on weren’t relevant to their viewpoint.
Then you add:
One again, you’ve missed the point of this morning’s post. I’m trying to point out that the court was invited to rule either on the substantive point, which you cite, or the totally separate procedural point, that the arguments had not been made earlier in the appeal process and so there’s no existing split between the circuits to trigger Supreme Court action. If they court based its action on the procedural point, then it has no bearing on how they would (and will) ultimately decide on the issue.
I invite others to read the relevant documents. That’s always the best way to go.
I liked the photo(s), too, but, believe it or not, there’s also a City ordinance that prohibits posting stuffs on utility poles, Sec. 29-4.4(a)(7), ROH. Possible penalties include removal of the posted material, paying the City’s cost to remove it, and a $500 fine.
Don’t mean to be a putz. Just so you know.
I’ll have to read Davis again (third time)- last time was over a year ago. But my remembrance was the whole argument was focused on restrictions on the privately funded candidate and how they limited free speech rights of contributors. But there is no such restriction in the NC and BI schemes. Either way there is a huge difference between the two schemes in terms of the privately funded candidate’s options and yet opponents are constantly claiming that the NC/BI scheme would be constitutional because they are basically identical.