Arguments on political ad disclosure law before COTAP Wednesday

Republicans are arguing that North Carolina's "stand by your ad" provisions are unconstitutional.

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Mark Binker
RALEIGH, N.C. — In case this year's election antics aren't enough to hold your attention, the N.C. Court of Appeals will allow us to step in the Wayback Machine and revisit 2010, when the ascendant  Republican Senate caucus was dumping money into legislative campaigns around the state. 

At the time, Ralph Hise was challenging Sen. Joe Sam Queen. Hise would go on to win the election and is now running for a second term, while Sam Queen is running for a state House seat. 

At the time, Democrats asked the courts to find that Hise and the senate caucus has violated state disclosure laws that require those who buy political advertising to disclose to television stations and the public who paid for the ads. 

While paperwork files with television stations and the commercials themselves said that Hise's campaign paid for the ad, the money trail showed that some payments went straight from the party to media buyers. This is not a huge difference. The party would have been free to give Hise's campaign the money and then have the campaign execute the media buys. 

As such, the case wouldn't be of much interest if it weren't for one argument lawyers for the GOP and Hise's committee are making.

Republican lawyers are asking the court to declare the penalties under the state stand by your ad statute unconstitutional.

"The draconian remedy provided by NC GS 163-278.39A violates the Defendants' constitutionally protected rights. Two important principles support this argument: First the First Amendment protects an individual or private organization from being compelled to support or convey a message with which that individual or organization disagrees....Should the Court accept Plaintiff's convoluted interpretation of the statute, the NCGOP and the Hise Committee will be forced to give hundreds of thousands of dollars raised from their supporters to their political opponents," wrote Michael Knight, a lawyer for the Republicans. 

In a brief for the Democrats, lawyer John Wallace and two other lawyers wrote that similar forfeiture provisions can be found in federal law that has been upheld by the U.S. Supreme Court. 

"Defendants argue that the remedy called for in N.C.G.S. §163-278.39 A(f) would amount to a contribution being made by the Defendants to the Plaintiff, who was, in 2010, a political opponent," the Democratic lawyers wrote. "In this case, Plaintiff is seeking compensatory damages which are provided by a statute for wrongdoing on the part of the Defendants. Plaintiff certainly is not seeking a voluntary contribution by the Defendants, but instead is seeking the remedy to which it is entitled as a result of the wrongful and unlawful conduct engaged in by the Defendants. If the reasoning utilized by the Defendants is carried to its natural conclusion, then a political candidate plaintiff would be unable to utilize the legal system to recover damages from his political candidate opponent for defamation."

It is all but impossible for the Court of Appeals to rule before this coming election. And if there is a split decision in the case, the 2014 campaign season could be under way before there is an answer to this question. However, if the penalties are ultimately struck down as unconstitutional, that could have an effect on campaign disclosures going forward. 

Friends of Joe Sam Queen v Ralph Hise For NC Senate, et al is the second case listed for argument for COTAP's 1 p.m. session. Judges Rick Elmore, Donna Stroud and Cheri Beasley are scheduled to hear the case.


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