NC confidential: Keeping voters in dark about campaign finance probes

This story was first published by Carolina Public Press, story by Mehr Sher

Campaign finance investigations are confidential in North Carolina. While candidates are innocent until proven otherwise, the confidentiality provision, passed by N.C. lawmakers in 2018, can also keep voters from making informed decisions, according to experts interviewed by Carolina Public Press.

For example, Lt. Gov. Mark Robinson, a Republican candidate for governor, has been under investigation for potential campaign finance violations for three years, according to Bob Hall, the former executive director of Democracy NC and a campaign finance watchdog who filed the complaint to the North Carolina State Board of Elections.

Robinson is still being investigated over about $500,000 of alleged violations nearly two and a half months before the primary election.

But due to the confidentiality provision, the Board of Elections has been prevented from responding to CPP inquiries about the current status of the investigation or when it is expected to conclude.

While some experts say the confidentiality provision the Board abides by has advantages, others say it could potentially prevent voters from being well-informed when they go to the ballot box.

“The challenge that this poses is that it deprives people from the useful information, in Robinson’s case, about someone who’s already serving in an elected capacity as a public official,” said Brooks Fuller, the director of the North Carolina Open Government Coalition.

This means voters are “deciding whether he holds the highest executive office in the state of North Carolina” without complete access to information about the candidate’s “person’s civil and criminal record especially as it relates to campaign finance violations,” Fuller said.

“We need a system that promotes some level of information so that we have an informed democratic voting process.”

In 2023, the Board received 21 campaign finance violation complaints, according to Pat Gannon, the spokesperson for the Board of Elections. Investigators closed twelve of those complaints, but additional investigations are ongoing from prior years.

He did not immediately have an exact number for how many investigations are currently ongoing this year, he said. 

Prior to 2018, ongoing investigations were “not a public record” according to the law,  but “that didn’t mean that the Board could not release documents related to an investigation and the Board was not required to withhold them,” Gannon said.

After 2018, when investigations became “confidential” under the provision, the Board of Elections could no longer release documents and “it became illegal to do so,” he said. 

Some question the nature of the confidentiality provision and the lack of access the public has to know about the status of campaign finance investigations.

“It’s not entirely clear as to why the legislature has prevented the State Board from even acknowledging the existence of an investigation where that information has become known through some other means, such as from the person who initiated the complaint or the campaign or a candidate who says he or she is being investigated,” said Hugh Stevens, a First Amendment and media lawyer at Stevens Martin Vaughn & Tadych.

“It’s a very comprehensive confidentiality provision.”

However, the concept of criminal investigations of potential criminal conduct being confidential is not anything new, according to Stevens. 

“It is very clear that before this law was passed, there was at least some possibility of access to proceedings and to documents that once you place the blanket provision of confidentiality over the process, the public has no insight until the investigation is concluded,” Fuller said.  

Gannonverified this in an email. 

In some cases the public did have more access to materials or documents pertaining to campaign finance investigations because they were not “confidential” before 2018, according to Gannon, but he did not elaborate in which specific cases. 

CPP also reached out to the sponsors of the 2018 bill to ask why this level of confidentiality in the provision was necessary. Only one responded. 

“The bill I initially filed with Rep. Torbett was a DOT/DMV agency bill. It was changed in the Senate to an elections bill,” said Rep. Frank Iler, R-Brunswick, in a written email to CPP. “Down to the why question, it appears that it is a case of ‘innocent until proven guilty.’”   

A potential reason for the confidentiality could be that campaigns can make allegations with little to no evidence to support them and later that the Board of Eections finds that there was nothing to substantiate an allegation but the damage to a candidate’s reputation has been done, according to Bob Orr, a former Republican judge who spent a decade on the North Carolina Supreme Court bench.

“The disadvantage really is that the Board is woefully understaffed and underfunded to pursue these kinds of investigations and I know they’re professionals who want to do it carefully, but it takes time and resources to conduct the investigation,” Orr said.

“It certainly limits the ability of the public and the press to find out in a timely fashion, whether in fact, there has been a violation and what the circumstances are.”  

CPP reached out to the Board to ask if understaffing is an issue and whether it affects the time it takes to complete campaign finance investigations. 

“We will not have any additional comment re: staffing,” wrote Gannon, the spokesperson for the Board of Elections, in an email to CPP.

To another question about the total number of individuals directly dealing with campaign finance investigations at the Board of Elections, Gannon said, four individuals work in the investigation division investigating a number of different elections-related violations and are supported by the Board of Elections’ legal team and seven employees on the campaign finance staff. 

The Board of Elections also handles a considerable amount of elections infrastructure issues from the new voter ID requirement and other aspects of the electoral process that take up a lot of resources and time to campaign finance investigations, according to Fuller.

“I could see some arguments for confidentiality,” Fuller said.

“What I can’t see arguments for is a system that makes it so inefficient and so difficult for people to get information about candidate investigations until the eleventh hour right before our primary.

“That in the system is something that we can fix, something that we should fix and something that the public deserves to have fixed.”

The public is barred from finding out any details about a complaint or an ongoing Board of Elections investigation and can only have access to information once an investigation has concluded and it proceeds to a hearing.

If the Board of Elections proceeds to a hearing, documents or materials are made public, according to the Board’s Campaign Finance Complaint Policy. 

This article first appeared on Carolina Public Press and is republished here under a Creative Commons license.