Conservatives spending heavily on court race

Forget the fact that the Supreme Court doesn't deal directly with putting criminals in prison and Newby's resume suggests much more experience with civil matters than criminal law. Those bankrolling the ad just want voters humming "Paul Newby, justice tough but fair" when they fill out their ballots.

Newby, an incumbent state Supreme Court justice, is running for re-election against Court of Appeals Judge Sam Ervin IV. Although the race is putatively nonpartisan, it is widely known that Newby is a Republican and Ervin is a Democrat. The race will determine whether Republicans continue to hold a 4-3 majority on the court or whether an Ervin victory would swing the majority in favor of Democrats. 

Both Newby and Ervin raised and spent a little more than $300,000 through North Carolina's public judicial campaign finance system. Each has staked a claim to election based on qualifications and biography. 

But the $337,466.80 Newby has reported spending on his campaign is dwarfed by outside spending on his behalf.

To be fair, Ervin will have some outside spending come in on his behalf. A group known as N.C. Citizens for Protecting Our Schools will likely spend more than $200,000 on direct mail fliers bolstering Ervin, according to those familiar with the expenditure. That money will come mainly from teachers groups, which have pushed the state to spend more on public education and have challenged a state law that kept teachers from donating directly to their association through paycheck contributions. 

And it is worth noting that independent expenditures are nothing new. Democrats and their allies spent heavily on behalf of judges in prior elections.

But Republican groups and conservative nonprofits backing Newby could end up spending 10 times as much, or more, as their opponents by the time the election is over this year.

For example, Americans for Prosperity, a national conservative group funded by wealthy donors like retail magnate and former North Carolina lawmaker Art Pope, said Friday it will spend $225,000 on a flier backing Newby. That pushes the total amount of outside spending on Newby's behalf beyond the $2 million mark.

But the bulk of outside spending in the race has come through the North Carolina Judicial Coalition, an independent spending group run by former Republican Party Chairman Tom Fetzer. That group has bought at least $1.6 million in air time for the "banjo ad," according to its campaign finance reports, although reports  submitted by television stations to the Federal Communications Commission suggest that total amount could be somewhat higher. 

Of the money that came to Fetzer's group, at least $720,000 was funneled through Justice for All NC, separate outside expenditure group. Those familiar with the two groups say they were set up separately at about the same time with the same purpose in mind – backing Newby's re-election bid. 

Former North Carolina Attorney General Lacy Thornburg, who went on to serve on the federal bench, wrote that he was "troubled" by the influx of money into state judicial campaigns.  

"I am hopeful that our citizens and the media will pay attention to what is going on here, investigate the situation and ask several key questions:  Who is giving the money? How much are they giving? What do they expect in return?" Thornburg wrote in a letter widely disseminated by Ervin. 

At the time he wrote, the campaign donations in question were cloaked by a complex web of campaign finance rules. Campaigns reports filed this week clear up some of Thornburg's questions. 

The list of donors to the two groups includes some smaller-dollar donations from individuals. But there are several five- and six-figure donations from businesses, nonprofits and others with an interest in state policy which either has been or might be before the court. For example: 

Fetzer declined to comment on his group's fundraising and spending. Jeff Hyde, a board member with Justice for All, referred questions to Bob Rosser, a contract communications specialist who did not return a phone call to his office. 

In background conversations, other Republicans will say they see the keeping a GOP majority on the court as a way to protect Republican legislative victories from being overturned. 

As for groups that funded the two spending groups, many did not return phone calls by the time this story was finished. 

In response to a request for comment, Gary Salamido, who runs the North Carolina Chamber's independent expenditure committee, sent an email through a spokeswoman. 

“The Chamber IE Committee supports candidates for elective office who are, based on their record and stated position on key business issues, aligned with the position of North Carolina Chamber members,” Salamido wrote. 

Although independent expenditures are legal, they raise questions in the minds of good government advocates and others.

“As spending on judicial races continues to increase, judges face added pressure to be accountable to special interests instead of the law and the constitution,” said Alicia Bannon, counsel in the Brennan Center’s Democracy Program, said last week. The Brennan Center had identified the state Supreme Court race in North Carolina as the fourth most expensive in the nation at that point, but that was before campaign finance reports released Monday and Tuesday.

"The important thing here is transparency," said Jane Pinksy, director of the N.C. Coalition for Lobbying and Government Reform. Because voters are able to know who is backing a judge, she said, they can make their own decisions on whom to vote for.

Others argue that voters typically know very little about judicial candidates, so more information – even if it comes by way of a commercial funded by corporations with interests before the court – is helpful.

"For voters to be informed, they need to know more about the candidates, not less," said Scott Gaylord, a law professor at Elon University. Like Pinsky, he argued that disclosure requirements would allow voters to make their own decision about the independence of judges. 

The U.S. Supreme Court has ruled that "extreme" spending in some cases can so color a judge's decision that it's impossible for him to rule impartially. In that case, one donor spent millions to help one judge get elected. 

However, the court did not draw a line saying when campaign donations become problematic. 

"Recusal is typically left to the judge," Gaylord said. 

For his part, Newby says he finds the ads on his behalf humorous, if not substantial. 

"I've got no control over any of these independent groups," Newby said during a phone interview Monday. 

Newby said he only wants to apply the law as its written and isn't affected one way or the other by those backing him.

"If someone were to believe that I would do something other than that, they are mistaken," he said.

Ervin said that the outside spending is troubling no matter which candidate groups are backing. What happens, he asks, when the public sees a case that involves someone who donated heavily to an independent expenditure effort on behalf of a judge?

"The real issue is how the general public is going to treat that decision," he said.