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Challenging Big Money through the Courts

The State Constitutional Approach

The North Carolina state constitution, initially drafted in 1776, is suffused with articulation and emphasis of the most basic of our founding revolutionary rights: the right to self-government by the People. Further, this right of self-government was expressly given to the whole people regardless of wealth.

Article I, section 1 acknowledges that it's self-evident that all persons are created equal and endowed with certain "inalienable" rights; "that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness."

Then in section 2 as boldly and clearly as it can be stated, the core principle of democratic self-government is set-forth: "Sovereignty of the people. All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole."

Section 3 clears up any doubt as to who is in charge: "Internal governance of the State. The people of this state have the inherent, sole, and exclusive right of regulating the internal governance and police thereof; and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States."

Section 10 says: "Free elections. All elections shall be free."

Section 19 says "...No person shall be denied equal protection of the laws."

The North Carolina Constitution contains no provision that would even suggest that the term "the people" should be limited to those who possess wealth or property. In fact, taken as a whole the North Carolina Constitution guarantees the fundamental principles of political equality and the essential dignity of all persons, requiring that the State ensure each citizen's right to an equal and meaningful opportunity to participate in self-government.

State Action: The Wealth Primary
Given the clarity with which the Constitution establishes that the "whole" people shall meaningfully participate in self-government, the question becomes how to define and name the evil in the electoral process that denies these basic rights and results in the wealthy having greater access to and voice in "government." Since all eligible citizens are in fact allowed to vote in primary and general elections, what is the violation subject to legal redress?

Lawyer John Bonifaz, from the National Voting Rights Institute (NVRI) based in Boston, was one of the pioneers in developing the concept of the "wealth primary" to answer that question. The wealth primary is that critical stage of the electoral process in which candidates must raise and spend substantial sums of money in order to mount viable campaigns for office. It is, as Bonifaz put it: "that exclusionary process leading up to every party primary and every general election, in which those with money or access to money, by means of their campaign contributions, choose the candidates who almost invariably go on to govern. Those who do not raise enough money - that is those who lose the wealth primary - almost always do not win office."

Research has established that in NC legislative races, the candidates who raise and spend the most money almost invariably win. This campaign finance system is an integral part of the electoral machinery employed, sanctioned, and ratified by the North Carolina Board of Elections. The winners of the wealth primary are declared the official winners by the Board of Elections.

The General Assembly does provide a form of public financing for select political parties by allowing taxpayers to direct money from their tax payments to go to such parties. The General Assembly also provides for public financing for candidates for select statewide offices. No such public financing is available to campaigns for the General Assembly. The State of North Carolina has made a decision to delegate the responsibility for funding public elections for the General Assembly entirely to private entities through the wealth primary.

In the wealth primary, the State of North Carolina and the North Carolina Board of Elections have established and sanctioned a de facto electoral requirement that candidates for state office amass large sums of money in order to meaningfully participate in public elections.

The average spending by winning candidates with opposition for the primary and general election in 1998 was $56,322 for the House and $113,518 for the Senate. This requirement is a barrier to the majority of citizens who do not possess or have access to wealth. The non-wealthy are denied a meaningful chance to even get on the ballot. Likewise, the non-wealthy who cannot financially support a candidate at the level to win the wealth primary are denied a candidate who will voice their interests. The non-wealthy - the vast majority of citizens - are denied the equal and meaningful opportunity to seek representation of their interests in the General Assembly. This denial violates equal protection and the most fundamental right of the people as a whole to self-government.

The majority of people cannot pay the admission price to what is labeled democratic self-rule.

The Lawsuit
Twelve individuals, including former candidates (Democrat and Republican), would-be candidates and voters, and seven organizations, including NC Fair Share, NC NAACP, NC Alliance for Democracy and NC Waste Awareness and Reduction Network, filed suit in December in Wake Superior Court. The defendants are the State of North Carolina and the North Carolina Board of Elections. The legal team consists of James Exum, former Chief Justice of the NC Supreme Court and now with Smith Helms Mullis & Moore; Adam Stein, from Ferguson & Stein; Legal Services of North Carolina; and the National Voting Rights Institute.
The complaint alleges six constitutionally based causes of action against the wealth primary:

1. it violates Equal Protection;
2. it wrongfully imposes property qualifications affecting the right to vote and hold office;
3. it violates rights of conscience and association (by forcing a person who wants to serve in the General Assembly to cavort with and seek money from the wealthy);
4. it wrongfully establishes special privileges and emoluments;
5. it violates the guarantee of popular sovereignty and representation; and
6. it violates the guarantee of free elections.

The relief requested is to declare the wealth primary unconstitutional and require the state and the Board of Elections to provide adequate public financing that will allow qualified citizens to compete meaningfully for the General Assembly, regardless of their economic status or personal association. No monetary damages are requested.
This remedy does not run afoul of Buckley because candidates can chose to voluntarily forgo private contributions in order to receive public financing or do the traditional table dances and solicit private contributions. This remedy is presently pending before the General Assembly in the Voter-Owned Elections Act, with 72 co-sponsors. While not a total elimination of the wealth primary, such a remedy qualitatively improves the chances of electoral victory on behalf of non-wealthy citizens.

Lewis Pitts is Director of the Mental Health Unit of Legal Services of North Carolina in Raleigh and represents a low-income voter in the lawsuit. The opinions expressed in this article are his and not necessarily those of Legal Services of NC.