The Times West Virginian

West Virginia

September 8, 2012

State court candidate denied ‘rescue’ funding

CHARLESTON — West Virginia Supreme Court candidate Allen Loughry cannot seek additional “rescue” money from a public financing pilot program, in the wake of a U.S. Supreme Court opinion against such matching funds, but can now raise campaign cash from individuals and groups, the state Supreme Court ruled Friday.

The unanimous decision otherwise upheld the pilot program and also said that Loughry, a Republican and longtime Supreme Court law clerk, can keep the $350,000 it previously provided for his general election campaign.

“This case presents a unique set of circumstances — a publicly financed candidate has detrimentally relied on matching funds provisions that are found to be unconstitutional two months before the election,” the ruling said.

Loughry said he was still reviewing the decision Friday, but said it appeared the exclusion of matching funds doomed a program that enjoyed the support of most legislators.

“While it is not the resolution I had hoped for, I am encouraged that the high court recognized the unique circumstances of this case and is allowing me to begin immediately raising money for my campaign,” Loughry said in a statement. “The campaign financing project has never been about my campaign, but about the ability of the state to hold fair judicial elections.”

With a pair of 12-year terms up on the court this year, Loughry was the sole candidate to take part in the pilot program. Created for this election as an experiment, it offered an alternative to traditional fundraising amid concerns about the influence of private contributions on the judiciary. To qualify, Loughry attracted more than 700 donations of varying amounts from across the state and then swore off additional private money.

The program’s rescue funding aimed to help him match traditionally financed candidates and outside groups. But Friday’s ruling concluded that a 2011 U.S. Supreme Court decision that struck down such funding in Arizona’s public financing program applied to West Virginia’s as well.

“There is no constitutional problem with West Virginia providing a fixed contribution amount to publicly financed candidates,” Chief Justice Menis Ketchum wrote for the court. “However, political speech rights are violated when West Virginia provides matching funds to publicly financed candidates based on the amount spent by privately financed candidates.”

The U.S. Supreme Court’s 5-4 Arizona ruling found that the offer of additional funds wrongly deterred would-be contributors to opposing candidates or groups. Aided by the nonpartisan Brennan Center for Justice at New York University’s law school, Loughry had argued that judicial elections are sufficiently different from those for the other two branches of government to merit an exception to that conclusion. Arizona’s program applies only to legislative and executive branch races.

The Arizona opinion also prompted a federal judge’s ruling in May against rescue funding in North Carolina’s public financing program for appeals court candidates. Bert Brandenburg of Justice at Stake, a nonpartisan group allied with the Brennan Center in its scrutiny of money in judicial elections, questioned the future of such programs Friday.

“Public financing is one of the most powerful reforms capable of shielding courts from special-interest influence. Candidates accept public financing by agreeing not to seek money from deep-pocketed interests,” Brendenburg said in a statement. “But without matching funds, or a much larger public contribution, few candidates will join such programs.”

West Virginia’s program arose after the U.S. Supreme Court barred state Justice Brent Benjamin from hearing cases involving Massey Energy Co. The 5-4 decision issued in 2009 cited the more than $3 million by Massey’s then-chief executive, Don Blankenship, to help Benjamin win election in 2004.

Justice Robin Davis, a Democrat and the lone incumbent on this year’s ballot, triggered the rescue funding provision for Loughry when her campaign reported spending nearly $494,500 after the May primary. She recused herself from his case, as did Benjamin and Justice Margaret Workman. Circuit judges Christopher Wilkes of Berkeley County, James Mazzone of Ohio County and John Marks of Harrison County heard the case in their place. Wilkes may file a separate opinion agreeing with Friday’s conclusions.

Loughry petitioned the Supreme Court after the State Election Commission deadlocked over releasing the $144,500 in “rescue,” or matching, funds. But the commission later voted to defend the rescue funding provision, and did so at a Tuesday hearing for Loughry’s case. The state attorney general’s office cited the Arizona decision and other recent U.S. Supreme Court and federal rulings to question the provision’s constitutionality at the hearing.

Still pending is a federal lawsuit challenging the provision, filed by former state official and Democratic Party chairman Mike Callaghan. He argued the prospect of matching funds chilled his right to contribute to his party’s nominees, Davis and recent State Bar President Tish Chafin,

The two Democrats face Loughry and fellow Republican John Yoder, a Jefferson County Circuit judge, in the Nov. 6 election. The next round of campaign finance reports is due at the end of this month.

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