CHARLESTON – Though some legal experts argue that the West Virginia Supreme Court of Appeals’ decision deeming the matching funds provisions of the state’s Public Campaign Financing Pilot Program unconstitutional is “disappointing,” there are those who contend the ruling also is slightly encouraging.
Adam Skaggs, senior counsel for the Brennan Center for Justice at New York University School of Law, is one of them.
The Brennan Center describes itself as a “non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice.”
“Obviously, we were disappointed that the Court declined to order the release of the matching funds,” said Skaggs, who helped represent state Supreme Court candidate Allen Loughry in the lawsuit.
“But I think we were pleased that the Court recognized and agreed with our arguments that there are unique state interests in judicial elections that aren’t implicated in other elections.”
He pointed out that the Court also noted that protecting the integrity of the courts is a compelling state interest.
“The fact that the Court recognized that is very significant,” Skaggs said in an interview Monday.
On Friday, the state’s high court denied Loughry’s writ seeking to force the State Election Commission to provide his campaign with matching funds.
Loughry, a Republican, is the only candidate in this year’s Court race to opt into the pilot program, which state lawmakers passed in an attempt to reduce the influence of special interest money.
In his 26-page petition for writ of mandamus, filed with the state’s high court July 30, Loughry argued that the SEC “failed to carry out the unambiguous duty” imposed under the program.
“Through this failure, the commission violated the statutory command of W.Va. Code 3-12-11(e), which requires the commission to authorize the release of funds once a determination has been made that the conditions for a release of supplemental funds have been met,” his petition stated.
“Due to the commission’s failure to follow the law and perform this ministerial duty, the commission also failed to perform its duty, working with the offices of the State Treasurer and State Auditor, to cause the funds to be disbursed to Petitioner Loughry’s campaign.”
In its 5-0 ruling, the state Supreme Court explained that the question is not only whether the SEC has a statutory duty to authorize the release of the matching funds to Loughry but whether the funds provisions violate the free speech clause of the First Amendment.
The Court concluded that the U.S. Supreme Court’s holding in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett — the ruling Charleston attorney Michael Callaghan points to in a separate but related federal lawsuit over the pilot program — applies to all elections to public office.
“The Supreme Court gave no indication in Bennett that judicial elections would be excepted from its holding. Nor are we persuaded that a majority of the U.S. Supreme Court is inclined to adopt a less rigorous standard than strict scrutiny to First Amendment issues involving political speech in judicial elections,” Chief Justice Menis Ketchum wrote for the Court.
Justices Robin Jean Davis, Brent Benjamin and Margaret Workman disqualified themselves from the case.
Judge Christopher C. Wilkes of the Twenty-Third Judicial Circuit, Judge James P. Mazzone of the First Judicial Circuit and Judge J. Lewis Marks Jr. of the Fifteenth Judicial Circuit were appointed as the justices’ replacements.
“While we are sympathetic to petitioner Loughry’s position and agree with his assertion that judicial elections raise a number of compelling interests, we are bound to apply the Supreme Court’s interpretation of the United States Constitution.”
Justice at Stake Executive Director Bert Brandenburg also was disappointed with the Court’s ruling, but wasn’t nearly as encouraged by it as Skaggs.
According to its website, Justice at Stake is a “nonpartisan campaign working to keep our courts fair and impartial.”
“West Virginia’s public financing program was crafted to protect a compelling state interest: keeping courts fair, impartial and free from special-interest influence. Today’s ruling is deeply disappointing, and means judges will continue dialing for dollars from major campaign spenders,” Brandenburg said Friday.
“Over the last decade, spending in judicial elections has soared across America, and public trust in our courts has eroded. The problem has been especially acute in West Virginia.”
Nationally, spending on state supreme court candidates has exploded in the last decade, according to Justice at Stake.
Between 2000 and 2009, candidates raised $206.9 million — more than double the $83.3 million raised in the 1990s.
Brandenburg said unless the role of campaign cash is reduced, the public will continue to fear that justice is for sale.
“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,” he explained. “But without matching funds, or a much larger public contribution, few candidates will join such programs.”
Skaggs agreed, but argued that the West Virginia Legislature does have some options, in terms of “fixes” to the pilot program.
“What this ruling says to West Virginia and other states is that if you want to address reforms and you want to address policies, you have to use a slightly different design than what was at issue here,” he explained.
“It doesn’t mean that the State can’t come up with a way to make funding available.”
One option, he said, is to eliminate the triggered additional, or matching, funds.
“That’s what the Court said would be less burdensome,” Skaggs said.
But he said there are two potential problems in doing so.
“First, it would be very expensive,” he said, explaining that the base grant per candidate could then be set too high. “Part of the concern is that you don’t want unnecessary money being spent.”
Skaggs offered up another option.
New York City, he explained, uses a small donor matching system. Meaning that the State makes public funds available to candidates at a certain ratio — for example, for every $100 a candidate receives, he or she gets $500 in additional public funds.
“That way candidates can raise money in small amounts and then any public funds are given to candidates, not based on what his or her opponent has spent but because a taxpayer or donor has decided to give his or her money to a certain candidate,” Skaggs said.
“That’s something (West Virginia) could look at.”
As to whether an appeal in the West Virginia Supreme Court case is in the works, Skaggs could not say.
That is something Secretary of State Natalie Tennant, the SEC or Loughry have to decide, he said.
And sooner rather than later, Skaggs said.
“I think it’s important to keep in mind that all of this litigation is taking place in the backdrop of a campaign,” he said. “Loughry, especially, needs to weigh the amount of energy and resources he would put into an appeal and the fact that there’s less than two months until an election.”
Loughry is facing circuit judge John Yoder, incumbent Davis and attorney Tish Chafin for one of two open seats on the Court.
The state’s general election is Nov. 6.