At the state level, the same holds true. In North Carolina, 90 percent of campaign contributions are made by 1 percent of campaign contributors--the richest ones. As a result, expecting to find candidates willing or able to reflect the public interest is frequently a losing proposition. When a candidate jumps through the money hoop, he or she comes out the other side with some serious baggage and bills to pay.
But what if possessing, or having access to, big money were not a prerequisite for running for office? Would a new kind of candidate emerge, the kind envisioned by the country's--and the state's--founders? That's one of the aims of North Carolina's Clean Elections movement. And one of its most interesting salvos is about to be fired in a Raleigh courtroom on Oct. 30.
That's when a group of plaintiffs--12 individuals (former and would-be candidates and voters) and seven organizations (including the North Carolina Alliance for Democracy, NAACP and North Carolina Fair Share)--will begin oral arguments in a lawsuit against the state of North Carolina and the state's Board of Elections. The outcome of this "Wealth Primary" lawsuit promises to make national history--and will have a profound effect on the shape of North Carolina's political, social and economic future.
The lawsuit contends that the state has not one, but two political primaries. The first, dubbed the "Wealth Primary," effectively eliminates all candidates without access to significant wealth. The second primary gives us the "privilege" of choosing among those candidates who survived the fundraising hurdles of the first. Greensboro Attorney Jim Exum, a former chief justice of the N.C. Supreme Court, is local counsel for the plaintiffs.
"In many ways, our government, at the state level--and I think this is true not only in North Carolina, but in other states, and maybe even at the national level--is an oligarchy," he says. "We have a government of the wealthy, a government of those who have access to wealth. We are, in truth, excluding from the political process the poor, or even people with a moderate amount of financial resources. And the interests of these people are simply not being represented in the political processes at the legislative level."
Exum's point is well-documented. Money in politics is a growing problem in North Carolina, where the average costs for state legislative elections have tripled over the past decade. It now costs, on average, more than $40,000 to run for a seat in the state House of Representatives, and more than $125,000 to run for the state Senate. Gregory Luke, an attorney with the National Voting Rights Institute in Boston--and one of the plaintiffs--calls this "a profoundly anti-democratic problem."
"We have these specialized professional candidates who deal with professional consultants," he says. "The first thing these consultants ask them is, 'How much money do you have? And who can you raise money from?' Twenty years ago, a campaign consultant would say, 'What are your policies, your positions; what do you hope to do for your community; how do we have a strategy for your election?' It's sad, it's tragic, it's not what the people who started this country had in mind--and I'm sure it's not what any of us have in mind today."
Because this concentration of power and money trumps the participation of the majority of North Carolinians, a campaign to create public financing for statewide elections has been taking hold here, as reported in The Independent (Oct. 4) and elsewhere. In fact, the option of public financing is already in place in Massachusetts, Maine, Arizona and Vermont. But what's unique about North Carolina is the size of its legislature--it would be the largest in the nation to offer the option of public financing. And it's the first place where a lawsuit is being brought against a state, based on provisions of that state's constitution--which, in the case of North Carolina, is a far richer, more detailed document than the federal constitution, Luke says.
"Not only are the prohibitions and descriptions of political rights more explicit," he explains, "but there also are affirmative burdens put on the state to make sure that it's actually a democracy, not just a democracy in name."
In fact, the lawsuit identifies six ways that the Wealth Primary violates the state's constitution: that it violates the guarantee of equal protection (each citizen's right to equal participation in self government); that it wrongfully imposes property qualifications--that property being money--on the right to vote and hold office; that it violates the rights of conscience and association (by forcing potential officeholders to seek money from wealthy interests); that it wrongfully establishes special privileges to those with money; that it violates the guarantee of popular sovereignty and representation (by eliminating popular participation); and that it violates the guarantee of free elections (by requiring the expenditure of huge sums of money). The plaintiffs claim that because the Wealth Primary is an integral part--in fact, the only effective part--of the entire elective process, it needs to be remedied by the court.
Luke says the legal theory behind the lawsuit draws on two lines of cases dating back to the early 1900s. One involved filing fees, which required payment simply to get on the ballot, as well as the poll tax, which charged voters for voting. Both were eventually struck down by the Supreme Court as unfair burdens falling unequally on voters and candidates of different economic means. The other line involved the "white primary cases" of that era, in which Luke sees a strong analogy to the Wealth Primary lawsuit.
"Whites tried to not allow African-Americans into political parties," he explains, "but the Supreme Court said the parties are so important that they are, in effect, part of our political machinery." These attempts were also struck down. But an even more striking precedent can be found in a 1953 U.S. Supreme Court decision in the case of Terry vs. Adams, involving a Texas club called The Jaybird Democratic Association.
The Jaybirds held their own elections, three months before the official democratic primary. Winners of the Jaybird elections would then enter the primary, and they inevitably won. And because they excluded African-Americans from their membership, the winner was guaranteed to be white. "If you couldn't get elected by the Jaybirds, or if you were not elected by the Jaybirds, you had absolutely no chance to win the democratic primary," Exum explains.
While the Jaybirds was a private organization, not established by any statute of the state, the Supreme Court decided that the process violated the 15th Amendment of the U.S. Constitution, because it was the equivalent of an election--which the state permitted it to operate. "The court said, 'It is immaterial that the state does not control that part of the elective process which it leaves to the Jaybirds to manage,'" Exum continues. "'The Jaybird primary has become an integral part, indeed the only effective part, of the elective process that determines who shall rule and govern the county.'"
Exum and the other plaintiffs contend that the "Wealth Primary" is a recreation of the Jaybirds' primary--only this time, the excluding factor is not race but money. And that's why they're looking to the court for help. "I don't think the court will get too specific in regard to its suggested remedies," Exum says. "But I think it can broadly suggest to the legislature that it's got to address this."
"We need the court to take an honest look at what's going on," Luke adds, "and also take an honest look at what the people mean when they draft a constitution that says, 'All elections shall be free,' and 'The people are sovereign,'--the whole people, not just some of the people. Hopefully, the courts will have the courage to order a remedy that will help us regain our democracy."
In fact, the Wealth Primary lawsuit is only one step in the long trajectory toward public financing of elections in North Carolina. Exum suggests that in the best of all possible worlds, it could still be in the neighborhood of two to three years before any court-ordered remedy could take place as a result of this lawsuit. But it's a step the plaintiffs feel compelled to take--you could call it a point of pride.
"The North Carolina constitution provides fertile ground for these constitutional arguments," Exum says. "When the provisions of that constitution are read and understood as a whole, the conclusion is inescapable that in the special context of elections, North Carolina has a primary and ultimate responsibility to insure all of our citizens, rich and poor, a meaningful opportunity to participate in the process.
"Not to do so," he emphasizes, "violates the bedrock principles of constitutional democracy that North Carolinians, through their constitution, have promised to themselves and to their posterity."
Opening arguments in the Wealth Primary lawsuit begin at 11 a.m. on Oct. 30, Wake County Courthouse, courtroom 10B, Fayetteville Street Mall, Raleigh.