Two important questions are at issue. First, when a group (or an individual) targets a candidate the way CARE targeted Lang, does the public have the right to know who they are? And second, can we put a legal limit on how much any member of the group can contribute? If not, then anytime you run for office, you face the prospect of anonymous millionaires attacking you (or, hey, they might like you!) with the full arsenal of TV, radio and newspaper ads and a dot.com Web site. That pretty much describes the CARE effort--except that we don't know if they were big-shot developers or jes' folks with a dislike for Lang's slow-growth politics, because CARE won't reveal who they are.
Can they get away with that? Maybe so. Pitted against them are five members of N.C. Common Cause, the state chapter of a national good-government group. But the N.C. Civil Liberties Union is on CARE's side, though Deborah Ross, NCCLU's executive director, says it's possible that evidence will come out during the Board of Elections hearing that will change her group's view.
Among the legal precedents on CARE's side are civil rights-era cases in which state governments demanded to know who the NAACP's contributors were. The federal courts put a stop to that, recognizing that under the First Amendment there is a right of political association that protects people who want to raise issues in a public way--even during elections--without putting their names on them. Many who opposed segregation feared what would happen to them if their names were disclosed. Today, controversial organizations like N.C. Right to Life, the anti-abortion group, claim the same protection. Coincidentally, Paul Stam, Right to Life's lawyer (and a Republican candidate for the N.C. Court of Appeals), is one of the lawyers representing CARE.
Pitted against the right to raise issues anonymously is the public interest in knowing who's paying for election campaigns and limiting how much any single contributor can spend. North Carolina law requires disclosure of contributions over $100 and sets a limit of $4,000 per candidate per election (which means $8,000 if there's a contested primary and $12,000 if there's also a runoff). But there's a giant loophole where "soft money" is concerned. If you contribute to a political party, and the party just happens to spend that money for a particular candidate, your contribution is virtually unlimited.
The same thing applies to "issues" groups. If N.C. Right to Life raises issues in a campaign, and they just happen to help a particular candidate, so be it--they have that right. What they can't do is campaign openly for one candidate or against another one under the guise of raising issues. If they do, then the requirements for disclosing contributors--and limiting them--kick in.
So was CARE an "issues" group or an anti-Lang political campaign? The Common Cause members, backed by lawyers from the New York University School of Law who specialize in campaign reform issues, will say CARE "crossed the line into electioneering," according to Carol Love, Common Cause's executive director. "We think the people of Cary have a right to know who paid for this campaign, especially since it was so negative, and we think negative campaigning just tarnishes the whole political process."
But as NYU lawyer Elizabeth Daniel concedes, "this is one of the most complicated and difficult areas of election law." In North Carolina, that's putting it mildly. After the 1998 elections, in which a hog industry group calling itself Farmers for Fairness openly targeted state Rep. Cindy Watson, a Duplin County Republican, and spent hundreds of thousands of dollars trashing her, the Board of Elections declared Farmers a political committee and ordered it to disclose its contributors. Farmers got the decision thrown out in federal court by arguing that the state's definition of political campaigns was so vague it encroached on constitutionally protected issues advocacy.
Following the Farmers case, the General Assembly wrote a tighter definition. The key phrase in the new law is this: Communications are political if they "direct voters to take some action to nominate, elect or defeat a candidate" (emphasis added). If the direction is unclear, then "contextual factors such as the language of the communication as a whole" and its timing can be considered. In sum, can the campaign "only be interpreted by a reasonable person" as advocating the election or defeat of a candidate?
The CARE case is the first test of the new law. Interestingly, the five-member Elections Board was in no hurry to apply it. Its staff rejected two separate complaints from Cary residents about the anti-Lang campaign when CARE first launched it in August. It was only when Lang's wife took the issue to court and the Common Cause members followed with their own lawsuit, that the Board agreed to hear the case. The effect was to postpone any ruling until after the election was over.
Even now, it's not the Board's staff that will be presenting the evidence. Instead, it has bucked the job of prosecuting to the NYU lawyers, and it has handed its subpoena power to the complaining citizens. The upshot is that it's their job, not the staff's, to try and round up all the ads that CARE actually ran. That process is continuing, but it appears that CARE spent about $70,000 on cable TV alone, plus its spending on radio spots and ads in The Cary News. Randall Roden, a Raleigh lawyer who filed the lawsuit (since withdrawn) for Barbara Lang, guesses that CARE spent $200,000.
CARE's ads didn't "direct" voters to defeat Glen Lang, however, as Ross points out. "Can Cary trust the REAL Glen Lang?" the ads blared, and after upbraiding him on various matters, they directed readers to "call Glen Lang and give him your opinion" on whatever transgression he'd just been accused of. Ross says federal court decisions are clear that unless the ads say something like "Don't Let Him Do It," implying the need to vote against someone, they fall on the side of issues advocacy.
Roden thinks the case is equally clear the other way. "CARE claims to be an issues organization, but as far as I know, they've never done anything except campaign ads." CARE was incorporated as a nonprofit organization in August. Before it ducked behind its veil of secrecy, it issued a press release listing several officers with ties to Cary developers, including president Brent Barringer, a real estate lawyer.
Clearly, CARE is not the NAACP or even Right to Life. If the law can't limit what the CAREs of the world can spend on campaigns, or require disclosure of who's doing the spending, then limits of any kind on negative campaigns go right out the window.