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Judge agrees NC matching funds provision unlawful

Gary D. Robertson

A federal judge has struck down portions of North Carolina's voluntary public financing program for appellate court candidates.

The program was designed to provide extra funds to participants when they're outspent by candidates who opt not to abide by limits in favor of private financing.

U.S. District Court Judge Louise Flanagan agreed with lawyers for two political committees linked to the anti-abortion group North Carolina Right to Life. They argued the matching fund provisions were similar to those in an Arizona program thrown out by the U.S. Supreme Court last year.

Candidates who participate in the public financing program get "rescue" funds when they start getting outspent. The North Carolina Right to Life committees said they hadn't contributed to any judicial campaigns since 2006 for fear the donations would trigger matching funds for opposing candidates.

Lawyers for the state said the lawsuit was moot because the State Board of Elections already had decided in December not to offer any matching funds to the judicial candidates in 2012.

But Flanagan disagreed, writing that the General Assembly hasn't yet repealed the law at issue "and aside from its stated intention not to abide by the matching funds provisions, nothing appears to stop the (elections board) from changing its policy."

The N.C. Right to Life committees say the rescue funds infringe upon the constitutional rights of citizens to unfettered political speech.

"The court finds that the North Carolina matching funds statute is unduly burdensome and not sufficiently justified to survive First Amendment scrutiny," Flanagan wrote in an order filed Friday in the federal courts for western North Carolina.

The N.C. Right to Life Political Action Committee and the N.C. Right to Life Committee Fund for Independent Political Expenditures had filed a similar lawsuit, but the U.S. District Court ruled for the state, and the 4th U.S. Circuit Court of Appeals upheld that in 2008.

What's changed since then is the Supreme Court's ruling involving Arizona. The justices rejected arguments that rescue funds leveled the playing field between candidates or reduced the potential corruptive influence of large amounts of campaign donations on candidates for elective office or, in North Carolina's case, the courts. Armed with the high court's ruling, the committees filed a new suit.

James Bopp, an Indiana-based campaign finance lawyer representing the N.C. Right to Life committees, said Monday the committees are pleased with the ruling.

"It's been a while coming but we're glad (this day) has come," Bopp said in a brief interview.

Lawyers who represented the State Board of Elections members in the lawsuit "are reviewing the ruling and will be consulting with their clients," said Noelle Talley, a spokeswoman for the Attorney General's Office.

The lawsuit doesn't eliminate entirely the popular public financing program for candidates in the nonpartisan races for state Supreme Court and Court of Appeals, which were first used in the 2004 elections. The program gives candidates who accumulate a number of small individual donations the ability to receive public funds in exchange for fundraising restrictions.

The lawsuit also doesn't apply to public financing during the 2008 elections for candidates for state auditor, insurance commissioner and superintendent of public instruction, which fall under a separate program. But that program is in danger of running out of money for the 2012 elections, and Republicans who control the Legislature generally aren't big fans of public financing.

The Associated Press