Judging themselves

Here’s an interesting twist to the growing perception that partisanship and private money are creeping into judicial elections: What happens when elected judges are asked to interpret campaign finance rules that have governed their own campaigns?

That’s what’s playing out in a case argued yesterday before a three-judge panel of the Court of Appeals involving provisions of the state’s “stand by your ad” law. That law requires candidates or committees to disclose who’s paid for television ads they run.

After the 2010 election, the Friends of Joe Sam Queen — the committee for the Democratic candidate running for the 47th Senate District seat that year — sued his challenger Ralph Hise’s committee and the Republican Executive Committee for violations of that law.

Hise went on to win that seat, and is now seeking re-election. Joe Sam Queen is running for a House seat this year.

In the case before the court, Queen claimed that the Republicans paid for Hise ads but didn’t disclose that, allowing the ads to air instead with the statement “paid for by Ralph Hise for Senate.”

His committee wants to collect the nearly $250,000 Hise paid for those ads as damages, as permitted under the “stand by your ad” law.

But the Hise committee said he paid for the ads by virtue of an account the Republicans had set up with the campaign’s media company, American Media, for the benefit of candidates. The party deposited funds into that account, but only after Hise approved an ad could American Media draw down on that account to pay for air time and expenses.

That differed only slightly from the way Queen paid for his ads, Hise added. Once Queen approved an ad and needed to pay for air time, the Democrats sent money to the Queen committee, which then paid the invoice directly – sometimes only minutes later.

Any violation by the Hise committee, if found by the court, was technical at best, its attorney Thomas Farr argued, and certainly didn’t warrant the damages sought by Queen.

The law is vague, Farr added, as it doesn’t define “purchaser” for purposes of disclosing who paid for an ad. Plus, the damages sought amount to “compelled speech” disallowed by the First Amendment of the U.S. Constitution, since in effect they force a candidate to make a contribution to his adversary’s campaign.

The judges, all who’ve sat in the candidate seat before, did little to tip their hands in partisan fashion.

John Wallace, who represented the Queen committee, opened his argument by noting the irony of a campaign finance appeal being heard in the midst of a contentious election cycle by a panel of judges who are veteran campaigners.

That remark barely drew a reaction from the panel.

What was the significance of a payment made to a media account for the benefit of a candidate versus a payment made directly to a candidate to pay for media, Judge Rick Elmore asked Wallace. Elmore is a Republican.

Control, Wallace answered. Hise never had control over the funds being paid to American Media.

Judge Cheri Beasley, a Democrat, questioned both parties about the practical effect of any violation by Hise and the harm it caused Queen and the public.

Wallace responded with a floodgates warning, arguing that once we allow candidate money to pass through vendor accounts we open the door to an infiltration of money from improper sources.

But here, Farr said, the source of the funds was known, and nothing was paid until Hise gave his approval. Control never left his hands.

And Judge Donna Stroud, a Republican, focused on why Queen didn’t file the lawsuit himself – an argument raised by neither side. Isn’t that what the statute required, she asked both attorneys. Where was the evidence in the record that Queen had even authorized the lawsuit?

Farr, to his credit, said that as much as he wanted his clients to win the case, he had little doubt that Queen had authorized the action and did not view that to be an issue on which the court’s decision should turn.

If the judges split along party lines, the 2-to-1 result lends itself to an automatic right of appeal to the Supreme Court, which means clarity on this point of campaign finance law may come just in time for the election – in 2014.

One Comment

  1. Frances Jenkins

    October 11, 2012 at 10:25 pm

    So, did Hise win at the lower court level and if so what the decision of the judge?

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