Opinion: Candidates can't be the face of bond campaign

An opinion issued by the North Carolina State Board of Elections says it would likely be illegal for candidates to serve as the face of a bond referendum campaign.

Posted 2:52 p.m. Dec 8, 2015 — Updated 7:44 p.m. Dec 8, 2015

Mark Binker

RALEIGH, N.C. — Candidates running for offices such as governor or attorney general won't be able to serve as spokesmen for committees promoting or opposing the March 15 bond referendum, according to state elections officials.

The referendum will ask voters to borrow roughly $2 billion to improve universities, community colleges, parks and National Guard facilities across the state.

State Board of Elections Director Kim Strach issued the eight-page opinion last week in response to an inquiry from elections lawyer Michael Weisel. Although Strach's letter sifts through several different scenarios, they all boil down to various prohibitions that would keep bond committees – whether for or against borrowing – from featuring in advertisements candidates who are on the ballot in 2016.

This prohibition applies during the electioneering communications window, a period of time during which mass media featuring candidates is more tightly controlled. The electioneering communications window this year begins Jan. 3, according to the State Board of Elections.

"This absolutely makes a statement that prohibits any candidate, if they're on the ballot, from appearing in the ads" during the electioneering communications period, said Weisel, who generally works for Democratic candidates or allied causes.

Weisel said his interpretation of the opinion is that it would keep a referendum committee from even mentioning a candidate.

Josh Lawson, general counsel for the State Board of Elections, said he believes "referendum committee ads can mention candidates without issue." Problems might arise, he said, if there was any evidence of coordination between a referendum committee and a campaign.

Consultants working for the Connect NC bond referendum committee say they haven't begun making decisions for what their pro-bond campaign might look like or whether it would include radio and television advertisements. However, they confirmed that, under the State Board of Elections advisory opinion, it would be all but impossible to air ads featuring Gov. Pat McCrory or other high-profile political leaders such as House Speaker Tim Moore or Senate President Pro Tem Phil Berger, who are honorary co-chairs of the committee.

"We are in the process of reviewing the recent Advisory Opinion from the State Board of Elections arising out of questions raised by third parties about election law restrictions pertaining to the bond referendum," said former Supreme Court Justice Robert Orr, who is serving as the lead co-chair of the Connect NC Bond Committee. "As a result, we are working with our General Counsel and election law experts to determine what impact, if any, the Opinion will have on our campaign effort."

Orr added that "there have been no decisions on our communications strategy or use of spokespersons to support the campaign at this time. We anticipate that it will be the early part of January before any such decisions will be made."

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