THEIR VIEW: Pilot financing program was grounded before it started

By SCOTT S. BLASS

WHEELING -- The West Virginia Association for Justice has consistently supported efforts to reform judicial election financing.

Unfortunately, reform efforts were thwarted by the United States Supreme Court's Citizens United decision which handcuffed the ability of both state and federal governments to provide any limits on campaign expenditures.

In 2010, WVAJ believed that the West Virginia Supreme Court's Public Campaign Financing Pilot Program was a great idea. The program provided public funds to finance the campaigns of candidates who chose to participate so long as they agreed not to accept any private funds in support of his/her campaign. It provided nearly $400,000 in initial campaign funds to participating candidates. It also would have, if implemented, provided additional "matching funds" to participating candidates during the campaign to level the playing field with non-participating candidates who were spending significantly greater private contributions. It was also available if an independent group began spending money to influence the election.

Given recent multi-million dollar independent expenditure campaigns, the Legislature and WVAJ believed that the "matching funds" provision leveled the playing field.

Arizona passed similar legislation. In 2011, the U.S. Supreme Court ruled that the matching fund provision of Arizona's public financing law was unconstitutional. Three days after the Supreme Court issued its decision, Secretary of State Natalie Tennant asked Attorney General Darrell McGraw to review the opinion and its effect on the West Virginia statute. On July 28, 2011, McGraw confirmed that the Supreme Court's decision rendered West Virginia's matching fund provision unconstitutional. This conclusion was reached prior to the commencement of the pilot financing program and before it was known which candidates might elect to participate in it.

All individuals considering participation in the program were fully aware that the matching funds provision had been deemed unconstitutional and the Secretary of State's office had decided that the provision, consequently, could not be implemented.

Because of the inability to implement the matching fund provision, most groups, including WVAJ, opposed proposals calling for the program's extension beyond the 2012 election.

Under the program, candidates could still receive almost $400,000 in taxpayer money, but had to agree not to receive nor spend private funds regardless of what others were spending. However, candidates knew if they decided to participate, matching funds would not be available because of the U.S. Supreme Court ruling. As a result, it is not surprising that only one of the 2012 West Virginia Supreme Court candidates elected to participate.

Allen Loughry opted to participate with full knowledge that the matching funds provision would not and could not be implemented.

Nonetheless, he did not challenge, publicly or legally, the state's conclusion that the matching funds provision could not be implemented due to its unconstitutional nature. Loughry was given almost $400,000 in taxpayer money for his campaign. He is now seeking $700,000 more pursuant to the unconstitutional matching funds provision.

Twelve months into the campaign, Loughry wants to change the rules. Election rules should not be changed in the middle of a campaign, especially when changing the rules would require direct defiance of a binding decision of the U. S. Supreme Court.

Loughry's behavior in his quest for $700,000 in taxpayer money has been questionable. Indeed, the West Virginia Election Commission Republican Chairman characterized Loughry's performance before the Commission as lacking in "judicial restraint." Loughry's long-threatened legal action was finally filed this week. He has not publicly explained why he waited 12 months to challenge to the State's inescapable decision that the matching fund's provision could not be implemented due to its unconstitutionality. This is likely because of his recognition that his arguments are better suited for garnering media attention than winning in the courtroom. Regardless, the Loughry challenge is untimely and unfair as it is an attempt to change the rules in the middle of the game which likely says more about his qualifications to sit as a Justice on the West Virginia Supreme Court than any arguments made in support of his position.

Blass is the president of the West Virginia Association for Justice. He is a partner with the Wheeling firm of Bordas and Bordas.

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