Bluefield Daily Telegraph, Bluefield, WV

State News

October 31, 2011

Capital Focus: W.Va. attempts scaled-down candidate funding pilot

CHARLESTON (AP) — West Virginia still plans to offer public campaign funds to its Supreme Court candidates during next year’s election, but supporters of the pilot program say they’re concerned about its prospects after a recent legal setback and a failed bid to increase its revenue sources.

Two of the court’s seats are up in 2012. Program officials say one of four declared pre-candidates has sought to participate so far, independent-turned- Republican Allen Loughry.

The program has $3 million, and sets several requirements for participating. Among them: Candidates must first meet a financial threshold, raising between $35,000 and $50,000 from at least 500 West Virginia voters who each give no more than $100.

Candidates who qualify would be eligible to receive $200,000 for a primary or $50,000 if they face no opponent in that race, though either amount would be offset by what they raised to qualify. Candidates would then draw down $350,000 for a general election or $35,000 if it’s uncontested, minus what funds remain from the primary phase.

The public funding initiative seeks to address concerns that judicial elections in the U.S. increasingly are swayed by big spending, particularly by special interest groups.

“The story of the 2009-10 elections, and their aftermath in state legislatures in 2011, reveals a coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the Constitution and the law,” according to a national report, “The New Politics of Judicial Elections,” issued last week by The Brennan Center for Justice at New York University School of Law and two other groups.

The report noted that West Virginia lawmakers balked at imposing new fees on lawyers and court filings to ensure sufficient funding for their state’s program. The measure passed the House, with 35 of 100 delegates opposed, and then failed to clear the Senate. Fiscal notes for the bill — paperwork that estimates the financial impact of a piece of legislation — do not say how much revenue the fees would have generated.

“We were disappointed when we didn’t get some of the extra funding,” said Carol Warren, coordinator of the West Virginia Citizens for Clean Elections Coalition. “It faltered and didn’t make it through. That worried us. If the candidates perceive that the program is not properly funded, then they’ll shy away from it.”

House Minority Leader Tim Armstead and other state lawmakers who opposed this year’s bill questioned the timing for charging new fees.

“I think (the public is) concerned that with the current economic situation, that tax dollars be used for essential programs or that there be tax relief,” said Armstead, R-Kanawha.

The Brennan Center’s report listed the legislative outcome as a setback for West Virginia’s program. The Brennan Center compiled the report with the National Institute on Money in State Politics and the Justice at Stake Campaign. The latter is an advocacy group that describes its mission as keeping special interests out of the courtroom.

“In West Virginia and elsewhere, critically needed reforms either stalled over were even reversed,” Bert Brandenburg, Justice at Stake’s executive director, said in a prepared statement. “In many states, a renewed effort is needed to ensure that courts are widely seen as fair and impartial.”

For supporters of the pilot program, its success is particularly important after a 2009 U.S. Supreme Court ruling that targeted spending in a West Virginia judicial election. The 5-4 decision faulted Justice Brent Benjamin for failing to remove himself from a multimillion-dollar appeal involving the coal company run by his 2004 campaign’s top supporter. Warren cited other cases that drew scrutiny to the state’s courts, and saying it all helped spur the blue-ribbon commission study that recommended a public financing pilot project.

“There really was a reason why this program was put in place, and it still applies,” Warren said. She added, “I think we’ve really gotten a black eye several times.”

A more recent 5-4 U.S. Supreme Court found that Arizona’s public financing program unconstitutionally infringed on free speech by providing extra money to qualifying candidates through matching funds that kicked in when privately funded rivals or independent groups spent more.

The West Virginia attorney general’s office has since concluded that this June decision nixes a similar provision in the pilot program.

Warren said supporters have proposed an alternative, allowing candidates to resume raising private funds to draw down matching public funds. While championed by Secretary of State Natalie Tennant, West Virginia’s election chief, the proposal has yet to go before lawmakers. The summer’s two special legislative sessions were devoted to redistricting. Gov.-elect Earl Ray Tomblin has not ruled out convening another session, to focus on Marcellus shale natural gas drilling regulations, before year’s end.

Lawmakers and officials question whether the 2012 regular session should feature this proposed fix, as the campaign season will have already begun. Warren said the program deserves the best shot possible at succeeding before the Legislature decides whether to keep it.

“We hope to remind people why this program came about, why we still need it and why it would be a good thing for our state and for judicial fairness,” Warren said.

But Armstead and other lawmakers aren’t convinced that public funding is the best way to resolve the issues that fueled the pilot program.

“I think we’re all concerned about the role that large amounts of money play in the electoral process,” Armstead said. “I think there are a lot of different solutions, a lot of different ways to address it.”

Lawrence Messina covers the statehouse for The Associated Press. Follow him at http://twitter.com/lmessina

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