By JULIE ARCHER
CHARLESTON — Scott Blass’s recent op-ed discussing West Virginia’s public financing program for Supreme Court candidates might lead one to believe the program had been declared unconstitutional by the courts.
No such thing has occurred.
While it’s true that the U.S. Supreme Court declared a public financing program for Arizona legislative and executive candidates unconstitutional, judicial public financing programs are an entirely different matter (or “a horse of a different color” as one person filing an amicus brief in the pending litigation asserts).
Justices are not like elected officials in the “political branches” of government. A legislator can legitimately favor certain policies and views, meet with campaign donors to discuss legislation, promise to enact certain laws, and respond to voter concerns. Members of the judiciary are precisely the opposite. Judges must be indifferent to popular opinion. They cannot make promises to rule in certain ways, and they must be, and appear to be, impartial to all people who come before them. But when big spenders get involved in judicial elections, the public can lose faith in the courts and the scales of justice can become tarnished.
In recent years, spending has skyrocketed in West Virginia Supreme Court elections. In 2008, the candidates spent a combined $3.3 million. In response to this disturbing trend, Gov. Joe Manchin convened the West Virginia Independent Commission on Judicial Reform, with honorary chair Justice Sandra Day O’Connor, to find a better way to run judicial elections in the state. The Independent Commission, first and foremost, recommended the introduction of a public financing system for Supreme Court elections. The West Virginia Legislature agreed with the Independent Commission’s recommendation and implemented a pilot public financing program for the 2012 Supreme Court election.
After collecting a set number of qualifying contributions from West Virginia voters to demonstrate a base of public support, participants in the public financing program forgo raising private donations and receive money from the state to run their campaigns. Candidates receive an initial monetary grant and are eligible for supplemental funds equal to the amount by which they are outspent by their non-participating opponents and outside groups up to a set limit.
The U.S. Supreme Court struck down a similar mechanism in Arizona’s public financing program. Ideally, the Legislature would have revisited West Virginia’s law in the wake of this ruling in order to avoid a legal challenge. However, the law establishing the program remains unchanged and the State Election Commission has a legal obligation to fulfill its duties under the law, which include releasing supplemental funds to participating candidates once the conditions for releasing those funds are met.
Despite the current legal quandary, the need to protect the integrity and credibility of our courts and strengthen public confidence in the judiciary remains. By providing Supreme Court candidates with no-strings-attached funds and shielding them from the biasing influence that can come with private contributions, public financing protects the impartiality of the Court and the justices on it.
Just prior to the passage of the bill establishing the program, a 2010 poll of likely voters in West Virginia conducted on behalf of Justice at Stake and the Committee for Economic Development showed that over two-thirds of voters see contributions to Supreme Court candidates as serious problem and more than three out of four believe that these contributions influence a judges decisions. These sentiments cut across party lines. In addition, the poll revealed strong bi-partisan support for public financing of West Virginia’s Supreme Court elections.
Unfortunately, only a single candidate, Republican Allen Loughry, chose to participate in the public financing program this year. It’s a shame that other candidates did not attempt to qualify for public financing, because once elected a publicly financed candidate won’t owe any favors to special-interest benefactors. Loughry’s stand in defense of the law deserves praise and we hope his efforts to defend public financing for judges result in a decisive decision to uphold the law.
As former West Virginia Supreme Court Justice Richard Neely said, “While in politics lack of actual impropriety is an absolute defense to everything but the raging of the press, in the judiciary the appearance of impropriety is as reprehensible as the real thing.”
It is essential that judges be impartial, with no possibility of influence by financial supporters. Public financing in judicial elections is vital to protecting the impartiality, and the appearance of impartiality, of the West Virginia Supreme Court of Appeals. With public financing, judges no longer must rely on support from lawyers and special interest contributors who frequently have cases before the court. When justices take money from these parties, it is quite reasonable to question whether Lady Justice may have one eye peeking out from under the blindfold. Public financing keeps the blindfold squarely in place, reassuring everyone that justice is truly being done.
Archer is project manager for West Virginia Citizens Action Group.