The Times West Virginian

West Virginia

July 19, 2012

Lawsuit targets West Virginia candidate financing program

By Lawrence Messina Associated Press

CHARLESTON — A would-be campaign contributor filed a lawsuit Wednesday asking a federal judge to strike down the part of West Virginia’s public financing program for Supreme Court candidates that offers “rescue” funds to help prevent them from being outspent.

Mike Callaghan, a former state official and Democratic Party chairman, targeted the provision a day after the State Elections Commission balked at providing rescue funds to Allen Loughry, the financing program’s sole participant.

The pilot program aims to address concerns about the influence of campaign contributions on the judiciary. Rescue funds are meant to help a participating candidate keep pace with traditionally financed opponents or independent groups.

But both Callaghan’s lawsuit and Tuesday’s emergency commission meeting raised the 2011 U.S. Supreme Court ruling that found rescue funding in Arizona’s public financing program an unconstitutional deterrence to free speech. Since then, West Virginia’s attorney general has concluded that the decision undermines West Virginia’s provision. A federal judge in North Carolina also invoked the decision in a May ruling against rescue funding in that state’s program.

A lawyer, Callaghan said he wants to contribute to his party’s nominees in the two-seat race, incumbent Justice Robin Davis and former State Bar President Tish Chafin.

“The uncertainty regarding whether the Commission will ultimately vote to release matching funds to Loughry unconstitutionally burdens Plaintiff by threatening the direct and automatic release of public money to their publicly financed opponent,” the U.S. District Court lawsuit said.

Davis reported spending $494,471 since the May 8 primary, enough to trigger rescue funding and prompt Tuesday’s meeting. Loughry vowed to take legal action after a vote to release funding failed in a 2-2 tie. Loughry argues that the Arizona and North Carolina rulings do not directly challenge West Virginia’s program. The attorney general’s advice is also non-binding, said Loughry, a longtime Supreme Court clerk.

Callaghan is represented by Anthony Majestro, a Charleston lawyer who attended Tuesday’s meeting and has also advised the Chafin campaign. The lawsuit was filed against the commission’s four members, including Secretary of State Natalie Tennant who was also named as West Virginia’s chief elections officer.

The West Virginia Republican Party condemned Wednesday’s lawsuit as an attack on the 1st Amendment.

“This law exists to ensure fair elections and to allow candidates a fair shot at communicating with the voters,” GOP Chairman Conrad Lucas said in a statement.

Republicans largely opposed the program when the Legislature created it in 2010. Five of seven GOP senators present and 18 of 29 Republicans in the House of Delegates voted against the final bill.

Chief Justice John Roberts, meanwhile, wrote the 2011 decision striking down the Arizona program’s provision, joined by fellow conservative Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.

Lucas said the lawsuit amounted to hypocrisy by the Democrats involved in its filing because the program might benefit a Republican. He also sought to single out Chafin for blame. Lucas alleged that her husband, then-Senate Majority Leader Truman Chafin, was among the Democrats who supported the bill. The Mingo County legislator voted against the 2010 measure when it passed.

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