CHARLESTON – There are two places where every West Virginian is supposed to be equal—in the ballot box and in our courtrooms.
While it’s still one person, one vote, the millions now spent to influence elections takes that away. Too often lawmakers are no longer doing what’s in the best interest of the people they represent, but passing laws that favor those who wrote the big checks.
That leaves our courtrooms.
In West Virginia and 37 other states, trial court judges are elected. Like West Virginia, 21 other states have Supreme Court elections. Judicial candidates are not like candidates for other elected offices. Gubernatorial and legislative candidates campaign on issues, tell you how they will vote and make promises to donors. If polling shows that public opinion has changed, they can change their position. That’s not the case with judicial candidates. They can make no promises on how they will rule. Their job is to interpret the law and ensure that everyone who appears in their courtrooms has a fair and impartial trial. That isn’t supposed to change based on polling or who wrote the checks.
The problem is the “new politics of judicial elections.” According to the national Justice at Stake campaign, “cash has become king in judicial elections” and “elected Supreme Courts have been Ground Zero of an unprecedented money war.” According to its figures, from 2000 – 2009 more than $206.4 million was raised by Supreme Court candidates nationally. That figure is double what was raised in the 1990s – and doesn’t include the millions more being spent in “independent” campaigns. Public confidence in the impartiality of our courts has been damaged.
West Virginia knows this too well. From 2000 to 2012, more than $11 million was raised by Supreme Court candidates. Millions more were spent in independent expenditures. The 2004 race brought national media attention, and it was the 2009 Caperton v. Massey case that led the U. S. Supreme Court to rule that this special interest money can undermine the right to a fair and impartial hearing.
West Virginia stepped up to meet that issue head on. In 2010, we established the Public Campaign Financing Act for our Supreme Court. To qualify, a candidate must raise $35,000 in contributions of $100 or less and only from West Virginia voters. The candidate can then receive up to $525,000 in public funds for the election. This takes the election away from special interests and hands it back to West Virginia voters. This year candidates Brent Benjamin and Bill Wooton opted for public financing. Beth Walker opted to raise money traditionally. The fourth candidate, Darrell McGraw, filed his candidacy papers on the last day. Because of his late entry and program deadlines, public financing was not an option available to his campaign.
What’s troubling is that Walker attempted to block the public financing received by Benjamin and Wooton by questioning filing dates, individual contributions and other technicalities. The State Elections Commission (SEC) dismissed those challenges and approved funding. Her campaign then argued that the money shouldn’t be released until all appeals were final. That could have delayed funding for weeks. Under public financing law, Benjamin and Wooton could not raise additional money. If they opted out of public financing, they would have been months behind in traditional fund raising. In either case, their campaigns would have been paralyzed while Walker’s moved forward. It was a move by Walker that was less than judicial.
Fortunately for voters, the SEC said no and the campaigns received public financing. When the case reached the West Virginia Supreme Court, sitting members recused themselves since they serve with Justice Benjamin. The justices named to hear the cases last week issued their order dismissing the challenges the very same day as the oral argument. The campaigns were allowed to keep their public funds.
The question is why were the challenges made? During the hearing justices raised questions about “whether it would be arbitrary and capricious to deny the candidates public campaign financing because of procedural errors.” Was it done to derail the campaigns of two who opted to put West Virginia voters and public confidence in the Supreme Court ahead of special interests? Their public funding had no affect on the ability of Walker’s campaign to raise and spend money.
It’s important that everyone’s rights be protected equally. That is at the very core of West Virginia’s decision to provide public financing for judicial candidates. While I respect Walker’s right to choose traditional fund raising, the same cannot be said for her challenges to our public financing program – especially when its goal is to restore integrity to judicial elections.
Flanigan is the president of the West Virginia Association for Justice.