CHARLESTON - Both the State Election Commission and state Supreme Court candidate Allen Loughry argue that Charleston attorney Michael Callaghan's recent request for a preliminary injunction in a federal lawsuit over West Virginia's Public Campaign Financing Pilot Program should not be granted.
Callaghan, a former state Democratic Party chairman, asked the U.S. District Court for the Southern District of West Virginia in an Aug. 22 filing for a preliminary injunction enjoining the defendants -- West Virginia Secretary of State Natalie Tennant, who serves as a member of the State Election Commission, along with Gary A. Collias, William N. Renzelli and Robert Rupp -- from implementing the matching funds provisions of the pilot program.
The provisions allow participating candidates to receive additional taxpayer funds based on the expenditures of independent third-parties and non-participating candidates.
Callaghan claims in the federal lawsuit, which he filed in July, that the pilot program violates the First and Fourteenth amendments of the U.S. Constitution by "unduly impinging upon protected political speech and association" as set forth in the U.S. Supreme Court's holding in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett.
Specifically, he argues that the matching funds provisions are unconstitutional.
Tennant and the SEC argue in their response, filed late Wednesday, that Judge Joseph R. Goodwin should not grant injunctive relief since Callaghan's alleged harm is contingent on events that may not occur.
"The plaintiff alleges that the matching funds component of the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program will cause injury to his rights under the First Amendment because his campaign contribution will result in a dollar-for-dollar payment toward the campaign of a candidate he opposes. However, in his petition the plaintiff sets out facts that show this dollar-for-dollar payment has not taken place and may not occur," Managing Deputy Attorney General Silas Taylor wrote for the defendants.
"Due to the events that have since happened in a related state court proceeding, it is likely that the plaintiff's campaign contribution may not result in any matching payment. Under these circumstances, the harm alleged by the plaintiff is merely speculative and the plaintiff cannot satisfy the first element of proof for injunctive relief."
The SEC has not ordered the release of any matching funds to Loughry, Taylor notes, pointing out that Callaghan admits so in his own complaint.
"In the absence of any order, or imminent order, for the release of these funds, the plaintiff's contemplated contribution is simply that: a campaign contribution like any other direct contribution to a candidate for office," Taylor wrote in the 12-page filing.
"Because there have been only four members serving on the State Election Commission, this situation regarding the release of matching funds is not likely to change until an additional member is appointed to the commission by the West Virginia governor.
"This, again, suggests that the risk of harm to the plaintiff is by no means 'imminent.'"
Events following Callaghan's filing may make the alleged harm "even less likely," Tennant and the SEC argue, noting Tuesday's oral arguments in a separate but related case before the West Virginia Supreme Court of Appeals.
"Only if the West Virginia Supreme Court orders the release of the funds will plaintiff be harmed. Until then, the plaintiff cannot prove that his alleged harm is 'actual and imminent,' so the district court cannot grant preliminary relief to the plaintiff," Taylor wrote.
Loughry, in a separate response Wednesday, agreed.
"Plaintiff cannot demonstrate a likelihood of success on the merits, or that he would be irreparably harmed absent an injunction," he wrote in the 21-page filing. "Nor can plaintiff satisfy the burden to demonstrate that the balance of the equities and the public interest favor the drastic remedy of a preliminary injunction.
"The West Virginia Legislature acted on the state's interests in guarding judicial integrity by ensuring that courts are impartial in reality and appearance when it adopted the pilot program. It narrowly tailored the pilot program's supplemental funds provisions."
Loughry, a Republican, is the only candidate in this year's Court race to opt into the program, which state lawmakers passed in an attempt to reduce the influence of special interest money. Last month, Goodwin allowed him to intervene in the federal case.
The state Supreme Court law clerk argues that when any possible First Amendment injuries are balanced against the "strong, countervailing constitutional interests" that support the law, it is "clear" that the pilot program is constitutional.
Loughry -- as in other related filings -- adds that the pilot program does not restrict, "much less purport to ban," any speech whatsoever.