NORTH CAROLINA RIGHT TO LIFE COMMITTEE FUND FOR INDEPENDENT POLITICAL EXPENDITURES; NORTH CAROLINA STATE POLITICAL ACTION COMMITTEE; W. RUSSELL DUKE, JR., Plaintiffs-Appellants, and BARBARA JACKSON, Plaintiff, v. LARRY LEAKE, in his official capacity as the Chairperson of the North Carolina Board of Elections; LORRAINE G. SHINN, in her official capacity as a member of the North Carolina State Board of Elections; CHARLES WINFREE, in his official capacity as a member of the North Carolina State Board of Elections; GENEVIEVE C. SIMS, in her official capacity as a member of the North Carolina State Board of Elections; ROBERT CORDLE, in his official capacity as a member of the North Carolina State Board of Elections; ROY COOPER, in his official capacity as the Attorney General for the State of North Carolina; C. COLON WILLOUGHBY, JR., in his official capacity as District Attorney for Wake County; ROBERT STUART ALBRIGHT, in his official capacity as District Attorney for Guilford County, and as a representative of the class of District Attorneys in the State of North Carolina, Defendants-Appellees, JAMES R. ANSLEY; COMMON CAUSE NORTH CAROLINA, Intervenors-Defendants-Appellees, and KEITH M. KAPP; J. MICHAEL BOOE, in his official capacity as Vice-Chairperson of the North Carolina Bar Administrative Committee; DAVID BENBOW, in his official capacity as a member of the North Carolina Bar Administrative Committee; DAVID YATES BINGHAM, in his official capacity as a member of the North Carolina Bar Administrative Committee; GILBERT W. CHICHESTER, in his official capacity as a member of the North Carolina Bar Administrative Committee; RENNY W. DEESE, in his official capacity as a member of the North Carolina Bar Administrative Committee; JIM R. FUNDERBURK, in his official capacity as a member of the North Carolina Bar Administrative Committee; JOHN E. GEHRIG, in his official capacity as a member of the North Carolina Bar Administrative Committee; ISAAC HEARD, JR., in his official capacity as a member of the North Carolina Bar Administrative Committee; PATRICIA L. HOLLAND, in her official capacity as a member of the North Carolina Bar Administrative Committee; MARGARET HUNT, in her official capacity as a member of the North Carolina Bar Administrative Committee; MARGARET MCCREARY, in her official capacity as a member of the North Carolina Bar Administrative Committee; DAVID T. PHILLIPS, in his official capacity as a member of the North Carolina Bar Administrative Committee; FRED D. POISSON, SR., in his official capacity as a member of the North Carolina Bar Administrative Committee; DONALD C. PRENTISS, in his official capacity as a member of the North Carolina Bar Administrative Committee; RICHARD ROOSE, in his official capacity as a member of the North Carolina Bar Administrative Committee; JAN H. SAMET, in her official capacity as a member of the North Carolina Bar Administrative Committee; JUDY D. THOMPSON, in her official capacity as a member of the North Carolina Bar Administrative Committee, Defendants.
No. 07-1454
United States Court of Appeals for the Fourth Circuit
May 1, 2008
PUBLISHED. Argued: December 7, 2007. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:06-cv-00324-BR). Amici Supporting Appellee: DEMOCRACY NORTH CAROLINA; AMERICAN JUDGES ASSOCIATION; CAMPAIGN LEGAL CENTER, INCORPORATED; CENTER FOR CIVIC POLICY; DEMOS: A NETWORK FOR IDEAS AND ACTION; ILLINOIS CAMPAIGN FOR POLITICAL REFORM; LEAGUE OF WOMEN VOTERS OF THE UNITED STATES; LEAGUE OF WOMEN VOTERS OF NORTH CAROLINA; PROGRESSIVE MARYLAND; PUBLIC CITIZEN, INCORPORATED; REFORM INSTITUTE; S. GERALD ARNOLD; G. K. BUTTERFIELD; J. PHIL CARLTON; HENRY E. FRYE; K. EDWARD GREENE; HARRY C. MARTIN; FRANCIS I. PARKER; WILLIS P. WHICHARD.
COUNSEL
ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Appellants. Alexander McClure Peters, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Deborah Goldberg, BRENNAN CENTER FOR JUSTICE, New York, New York, for Appellees. ON BRIEF: Anita Y. Woudenberg, Josiah Neeley, BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Appellants. Roy Cooper, North Carolina Attorney General, Susan K. Nichols, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina; Suzanne Novak, BRENNAN CENTER FOR JUSTICE, New York, New York; James G. Exum, Jr., Manning A. Connors, SMITH MOORE, L.L.P., Greensboro, North Carolina, for Appellees. Erwin Chemerinsky, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina; Anita S. Earls, Durham, North Carolina, for Democracy North Carolina, Amicus Supporting Appellees. J. Gerald Hebert, Paul S. Ryan, Tara Malloy, THE CAMPAIGN LEGAL CENTER, INC., Washington, D.C., for American Judges Association, Campaign Legal Center, Incorporated, Center for Civic Policy, Demos: A Network for Ideas and Action, Illinois Campaign for Political Reform, League of Women Voters of the United States, League of Women Voters of North Carolina, Progressive Maryland, Public Citizen, Incorporated, Reform Institute, Amici Supporting Appellees. Bryce L. Friedman, James G. Gamble, Elaine M. Divelbliss, SIMPSON, THACHER & BARTLETT, L.L.P., New York, New York, for S. Gerald Arnold, G. K. Butterfield, J. Phil Carlton, Henry E. Frye, K. Edward Greene, Harry C. Martin, Francis I. Parker, Willis P. Whichard, Amici Supporting Appellees.
OPINION
MICHAEL, Circuit Judge:
The plaintiffs, a former candidate for the North Carolina Supreme Court and two political action committees, challenge the constitution
I.
North Carolina‘s Judicial Campaign Reform Act creates a system of optional public funding for candidates seeking election to the state‘s supreme court and court of appeals. The Act‘s stated purposes are to “ensure the fairness of democratic elections” and “to protect the constitutional rights of voters and candidates from the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of [judicial] elections.”
In August 2005 the plaintiffs filed an action in U.S. District Court in North Carolina against several state officials connected with the administration and enforcement of the Act (collectively, the state). The complaint asserted that several provisions of the Act were unconstitutional. On October 26, 2006, shortly before the November 2006 general election, the district court denied the plaintiffs’ request for a preliminary injunction, reasoning that the plaintiffs were not likely to succeed on any of their constitutional claims. In March 2007 the court
II.
We begin our review by setting forth the particulars of North Carolina‘s public financing system for judicial campaigns at the appellate level.
As a threshold matter any candidate seeking to participate in the public funding system must meet two statutory conditions. First, the candidate must satisfy the Act‘s eligibility requirements, which are designed to measure whether the candidate has a base of support in the electorate. See
After satisfying these two conditions, a participating candidate becomes certified to receive public funds. A certified candidate receives an automatic (base) disbursement of public funds if the candidate is opposed in the general election.
The Act provides separate trigger amounts for a primary and general election. In a primary election the trigger amount is defined as sixty times the filing fee for the office sought,
The Act contains several additional provisions designed to promote the effective administration of the matching funds scheme. For example, a nonparticipating candidate must make an initial report within twenty-four hours after the “total amount of campaign expenditures or obligations made, or funds raised or borrowed, exceeds eighty percent (80%) of the trigger for matching funds.”
Finally, in certain defined circumstances the Act bars a nonparticipating candidate from accepting contributions from third parties during the twenty-one days prior to a general election.
III.
Before reaching the merits, we must consider the state‘s arguments that the plaintiffs’ claims are not justiciable.
A.
The state argues that two of the plaintiffs — North Carolina Right to Life Committee Fund for Independent Political Expenditures (NCRL-IEPAC or the Independent Expenditure PAC) and North Carolina Right to Life State Political Action Committee (NCRL-SPAC or the Contribution PAC) — lack standing because neither has been injured by the statutory provisions they challenge. Three elements are necessary for standing: (1) the plaintiffs must allege that they have suffered an injury in fact, that is, “an actual or threatened injury that is not conjectural or hypothetical“; (2) the injury must be “fairly traceable to the challenged conduct“; and (3) it must be likely that the injury will be redressed by a favorable decision. Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The state contends that the plaintiffs have not satisfied the first (injury in fact) requirement.
The state argues, in essence, that the two organizations’ alleged injuries are hypothetical or conjectural rather than actual or imminent. According to the state, the organizations failed to show that they would have actually carried out their plans to make contributions and expenditures. Specifically, the state contends that the Independent Expenditure PAC (NCRL-IEPAC) did not show that it had sufficient funds available to make independent expenditures in amounts that would have triggered the statutory reporting requirements. Similarly, the state questions the Contribution PAC‘s (NCRL-SPAC‘s) intent to make contributions during the twenty-one days prior to the 2006 election. In particular, the state points out that the Contribution PAC has not made any contributions to candidates during previous election cycles, including 2006.
The state‘s arguments lack merit. We have held that a plaintiff may establish the injury necessary to challenge campaign finance regulations by alleging “an intention to engage in a course of conduct arguably affected with a constitutional interest.” Va. Soc‘y for Human Life, Inc. v. FEC, 263 F.3d 379, 386 (4th Cir. 2001) (quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298 (1979)). Similarly, the Supreme Court has held that “conditional statements” of intent, which allege that a plaintiff would engage in a course of conduct but for the defendants’ allegedly illegal action, may be sufficient to demonstrate the required “injury in fact.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184 (2000). The Court explicitly rejected the argument (comparable to the state‘s argument here) that such conditional statements of intent are
B.
The state also argues that the plaintiffs’ claims are moot. The third plaintiff, W. Russell Duke, Jr., was a candidate for the state supreme court when this action was filed, and he opted not to receive public funds. Duke ultimately lost the election to the incumbent chief justice, Sarah Parker, who chose to participate in the public financing system. The state argues that Duke‘s claims are moot because he has not alleged that he will become a candidate for judicial office again in the future. Likewise, according to the state, the claims raised by NCRL-IEPAC and NCRL-SPAC are moot because neither organization has alleged an intent to participate in future election cycles.
We disagree. Duke‘s claims, as well as those raised by NCRL-IEPAC and NCRL-SPAC, “fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review.” FEC v. Wis. Right to Life, Inc. (WRTL), 127 S. Ct. 2652, 2662 (2007). In WRTL the Supreme Court held that the “capable of repetition, yet evading review” doctrine applied to save a challenge to the constitutionality of the Bipartisan Campaign Reform Act (BCRA) made during the 2004 election cycle. Id. at 2662-63. Although the election was over when the case reached the Supreme Court, the Court held that there was a reasonable expectation that the BCRA provisions applied against the plaintiff during the 2004 cycle would be applied against it again in future elections. Id. Likewise, in this case, there is a reasonable expectation that the challenged provisions will be applied against the plaintiffs again during future election cycles. In making this determination, we reject, as other circuits have, the argument that an ex-candidate‘s claims may be “capable of repetition, yet evading review” only if the ex-candidate specifically alleges an intent to run again in a future election. See Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir. 2000); Merle v. United States, 351 F.3d 92, 95 (3d Cir. 2003); see also Int‘l Org. of Masters, Mates & Pilots v. Brown, 498 U.S. 466, 473 (1991) (“[E]ven though [the respondent] lost the
IV.
We turn now to the central issue: whether providing public matching funds to participating candidates violates the First Amendment.
A.
Our analysis must begin with the Supreme Court‘s decision in Buckley v. Valeo, 424 U.S. 1 (1976). The Court made clear in Buckley that public financing of political campaigns does not, in itself, violate the First Amendment. 424 U.S. at 57 n.65. In fact, the Court observed that the Federal Election Campaign Act‘s (FECA‘s) public financing scheme “furthers, not abridges, pertinent First Amendment values” because it “facilitate[s] and enlarge[s] public discussion and participation in the electoral process, goals vital to a self-governing people.” Id. at 92-93.
Since Buckley the circuit courts have generally held that public financing schemes are permissible if they do not effectively coerce candidates to participate in the scheme. See Daggett v. Comm‘n on Governmental Ethics & Election Practices, 205 F.3d 445, 466-72 (1st Cir. 2000); Gable v. Patton, 142 F.3d 940, 947-49 (6th Cir. 1998); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1549-52 (8th Cir. 1996); Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 38-39 (1st Cir. 1993). A public financing system that effectively mandates participation (and thus effectively prohibits candidates from spending their own funds) would violate Buckley‘s holding that mandatory limits on the amount a candidate can spend on his own campaign are unconstitutional. Gable, 142 F.3d at 948; see also Buckley, 424 U.S. at 57 n.65 (“Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.” (emphasis added)). Nonetheless, courts recognize that a public financing system may provide significant incentives for participation without crossing the line into impermissible coercion. E.g., Gable, 142 F.3d at 949.
Unlike the Kentucky system at issue in Gable, the matching funds provided by North Carolina are given in a one-to-one ratio and are subject to a cap equal to twice the initial trigger amount, which for a 2006 supreme court campaign was $216,650. The incentive to opt for this limited level of public funding (a maximum of $649,950 for a 2006 supreme court general election campaign) is far from unconstitutional coercion, especially in light of the fact that judicial campaigns in several other states have raised and spent multiple millions of dollars. See Br. Amici Curiae of Ten Organizations Concerned About the Influence of Money on Judicial Integrity, Impartiality, and Independence, at 5-9; see also Daggett, 205 F.3d at 466-472 (upholding public financing system as non-coercive); Vote Choice, 4 F.3d at 38-39 (same).
B.
The thrust of the plaintiffs’ First Amendment argument against the matching funds provision is that it “chill[s] and penalize[s] contribu
There is some conflict in the circuits as to whether the provision of matching funds burdens or chills speech in a way that implicates the First Amendment. The Eighth Circuit struck down a matching funds provision, reasoning that the potential “self-censorship” created by the scheme “is no less a burden on speech . . . than is direct government censorship.” Day v. Holahan, 34 F.3d 1356, 1360 (8th Cir. 1994). The First Circuit, on the other hand, explicitly rejected the “logic of Day” by holding that the provision of matching funds “does not create a burden” on the First Amendment rights of nonparticipating candidates or independent entities. Daggett, 205 F.3d at 464-65; see also Gable, 142 F.3d at 947-49 (Sixth Circuit upholding a matching funds scheme against a constitutional challenge without addressing the Day analysis).
We conclude that the state‘s provision of matching funds does not burden the First Amendment rights of nonparticipating candidates (like plaintiff Duke) or independent entities (like plaintiff NCRL-IEPAC) that seek to make expenditures on behalf of nonparticipating candidates. The plaintiffs remain free to raise and spend as much money, and engage in as much political speech, as they desire. They will not be jailed, fined, or censured if they exceed the trigger amounts. The only (arguably) adverse consequence that will occur is the distribution of matching funds to any candidates participating in the public financing system. But this does not impinge on the plaintiffs’ First Amendment rights. To the contrary, the distribution of these funds “furthers, not abridges, pertinent First Amendment values” by ensuring that the participating candidate will have an opportunity to engage in responsive speech. See Buckley, 424 U.S. at 92-93.
In reaching this conclusion, we reject as unpersuasive the Eighth Circuit‘s decision in Day, which concluded that a matching funds
The principle underlying the Lakewood case, however, has no application in the context of a matching funds provision. In Lakewood the Supreme Court was concerned that speakers would be chilled from expressing criticism of a mayor because a city ordinance gave the mayor broad discretion in granting or denying permits to place news racks on city sidewalks. This danger, according to the Court, justified striking down the licensing scheme, which lacked clear standards. 486 U.S. at 759-60. In the case before us, however, the chilling effect alleged by the plaintiffs is different in kind because it stems not from any fear of direct government censorship but rather from the realization that one group‘s speech will enable another to speak in response. In stark contrast to the licensing scheme challenged in Lakewood, North Carolina‘s provision of matching funds is likely to result in more, not less, speech.
Moreover, the Day decision appears to be an anomaly even within the Eighth Circuit, as demonstrated by that court‘s later decision in Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996), which upheld a Minnesota campaign finance regulation. A candidate who opts to participate in Minnesota‘s public financing system must agree to a specified cap on the amount the campaign can spend. However, the cap amount is waved if the participating candidate faces a nonparticipating opponent who raises (or spends) amounts exceeding specified thresholds. 101 F.3d at 1546-48. Had the Eighth Circuit employed the Day analysis in the manner the plaintiffs seek to apply it here, the court would have concluded that the provision created a danger of self-censorship because a nonparticipating candidate might choose to limit expenditures in order to ensure that the participating candidate is not released from the expenditure limitations. But, despite a dissent that expressly invoked Day‘s “chilling effect” proposition, the court
C.
In sum, we conclude that North Carolina‘s provision of matching funds under
V.
The plaintiffs next argue that
Reporting and disclosure requirements in the campaign finance realm “must survive exacting scrutiny.” Buckley, 424 U.S. at 64. The plaintiffs argue that “exacting scrutiny” in this context is equivalent to strict scrutiny (requiring narrow tailoring to a compelling state interest), but this argument is inconsistent with Buckley and subse
The plaintiffs also miss the mark with their argument that the state could advance its interests in a less burdensome manner. Because narrow tailoring is not required, the state need not show that the Act achieves its purposes in the least restrictive manner possible. In Buckley, for example, the Supreme Court rejected an argument that FECA‘s $10 and $100 thresholds for disclosure of contributions were unconstitutionally low. 424 U.S. at 82-84. The Court reasoned that it could not “require Congress to establish that it has chosen the highest reasonable threshold” that would still achieve the government‘s interests. Id. at 83. Likewise, our task here is to determine whether North Carolina‘s disclosure requirements have a “substantial relation” to the state‘s purposes, not to determine whether they are the least restrictive means of advancing those interests.
Moreover, the plaintiffs’ arguments regarding the burdensome nature of
In sum, the plaintiffs’ arguments against the reporting requirements lack merit. As in Buckley and McConnell the requirements advance three important state interests: “providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions.” McConnell, 540 U.S. at 196. By ensuring the release of campaign funding information to the public and enabling the effective administration of matching funds, the reporting requirements clearly demonstrate a “substantial relation” to these interests. Because having a substantial relation to an important state interest is all that is required by Buckley and McConnell,
VI.
Finally, the plaintiffs challenge
The Act‘s twenty-one-day contribution ban survives scrutiny under McConnell. The ban advances the state‘s interest in avoiding the danger of corruption (or the appearance thereof) in judicial elections. The ban advances this interest because it is a key component of the state‘s public funding system, which is itself designed to promote the state‘s anti-corruption goals. The Sixth Circuit has upheld a similar ban that covered the twenty-eight days before an election. Noting that the ban forced candidates to “rearrange their fundraising by concentrating it in the period before the 28-Day Window begins,” the court reasoned that this restriction was justified under Buckley by the state‘s interest in combating corruption through the use of a public funding scheme. Gable, 142 F.3d at 951.
The plaintiffs’ alternative argument — that the ban is not sufficiently tailored to its stated goals because it does not cover either a candidate‘s own contributions or an independent entity‘s expenditures — also fails. As explained above, perfect tailoring is not required; rather, the ban need only be “closely drawn” to the asserted interest. See McConnell, 540 U.S. at 136. This standard is satisfied. A ban on contributions in the period immediately prior to the election helps to minimize a nonparticipating candidate‘s ability to unfairly take advantage of a participating candidate by delaying contributions until the last minute, when it would be too late for additional matching funds to be disbursed to the participating candidate. Moreover, the ban does not apply in all cases. Instead, it applies only in elections in which a nonparticipating candidate faces a participating candidate.
In sum, we hold that
VII.
The State of North Carolina has created a system that provides optional public funding for candidates seeking election to the state‘s appellate courts. The purpose of the system is to protect North Carolina‘s citizens from “the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of [judicial] elections.”
AFFIRMED.