A marquee Senate race pitting Democrat Kay Hagan against whichever Republican emerges from next Tuesday’s crowded primary is getting all the attention in North Carolina, boosting voter interest and turnout. At the same time, significant sums of money, totaling $1 million at last count, are flowing into the state to affect the outcome of a judicial primary, “usually a pretty sleepy enterprise,” says Bert Brandenburg, executive director of Justice at Stake, a nonpartisan group that monitors judicial elections.
Money buys airtime, and across North Carolina on 10 stations, incumbent state Supreme Court Justice Robin Hudson, a Democrat, is labeled in a television ad “not tough on child molesters.” That’s based on her dissent in a narrowly decided 4-3 ruling that said satellite monitoring of some sex offenders was not a new punishment, which would be unconstitutional, even though it did not exist at the time of their offense.
“This is a way of trying to bully the bench,” says Brandenburg. “Nasty campaign ads send a message to judges that as they make rulings on controversial cases, they may get ads against them down the line, and that’s not what they should be thinking about. They’re supposed to focus on facts and the law.”
Now North Carolina is ground zero in the partisan battles, but just a few years ago, the state was working hard to insulate judges from the onslaught of cash that many see as distorting democracy. It was the first in the nation to try public financing in judicial races, saying candidates shouldn’t have to spend all their time raising money, especially Supreme Court judges.
Over a decade ago, a fund was created using attorney fees to provide minimal campaign financing through state grants to qualifying candidates. The program was enormously popular; 80 percent of judges who ran used it, and it helped diversify the bench with more women and African-Americans. But there was always ideological opposition from the right on free speech grounds, and when Republican Gov. Pat McCrory took office in January 2013, one of the first things his budget director did was zero out public financing for judges.
The dam had broken anyway with the U.S. Supreme Court’s Citizens United 2010 decision, and judicial races have become a free-for-all just like every other political contest. Judges in North Carolina run without party identification; the races are nonpartisan, but everyone knows where their party allegiance lies. Two years ago, in a contested judicial race, “Ninety percent of outside money came from the conservative side,” says Chris Kromm, executive director of the Institute for Southern Studies. “They were way more on top of this game.”