CHARLESTON – The State Election Commission appeared to finalize plans to propose legislation that would make permanent the public financing pilot program used by now-Supreme Court Justice Allen Loughry during his 2012 campaign.

The commission met Feb. 13 to discuss an amendment that would eliminate a word from a report it compiled on the program. With or without the word, SEC members said the most important point of the report is to recommend the program become permanent.

“It’s my understanding that, you know, we are going to suggest that the pilot program does become law,” said new SEC member Taylor Downs, an attorney with the Fairmont personal injury firm Manchin Injury Law Group.

“I think that as time goes on, with campaigns becoming more expensive, I think that it's good that the Legislature consider additional revenue sources.”

The commissioners discussed the sentence, “The commission suggests that the Legislature might consider additional revenue sources to fund the program, although not necessarily at the past level of funding.”

The word “might” was struck.

A legal battle over the pilot program took place during Loughry’s campaign.

Loughry, a Republican, was the only candidate in a four-way race (for two seats) who participated in the program. He received $350,000 for his campaign.

But in September, the state Supreme Court denied his writ seeking to force the SEC to provide his campaign with matching funds. The matching funds provision was designed to help candidates who were being outspent by opponents who are not taking part in the program.

In his 26-page petition for writ of mandamus, filed with the state’s high court July 30, Loughry had 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 provision violates the free speech clause of the First Amendment.

Three justices disqualified themselves from the case, and three circuit judges replaced them.

Providing matching funds to just one publicly financed candidate — in this case, Loughry — does not “ameliorate the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of elections,” the court explained.

“The matching funds do not eliminate the appearance that the three candidates who accept campaign contributions may be biased or partial toward their contributors,” Justice Menis Ketchum wrote.

Secretary of State Natalie Tennant, a member of the SEC, said she was disappointed the pilot program did not have a more positive outcome.

“However, the court has given guidance in addition to declaring the current pilot project to be constitutionally flawed,” she said after the ruling. “I hope the Legislature will now see the importance of protecting the integrity of our judicial system and will take action to implement public financing for future judicial elections.”

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