Bluefield Daily Telegraph, Bluefield, WV

September 7, 2012

W.Va. court candidate denied ’rescue’ funding

Associated Press

CHARLESTON —  West Virginia Supreme Court candidate Allen Loughry cannot seek additional “rescue” funds in the wake of a U.S. Supreme Court opinion on the awarding of such matching funds, but can now raise campaign cash from individuals and groups, the state Supreme Court ruled Friday.

The unanimous decision also said that Loughry, a longtime Supreme Court law clerk running as a Republican, can keep the $350,000 previously provided by the public-financing pilot program for his general election campaign.

“This case presents a unique set of circumstances - a publicly financed candidate has detrimentally relied on matching funds provisions that are found to be unconstitutional two months before the election,” the ruling says.

Loughry and his campaign did not immediately respond to requests for comment Friday. With a pair of 12-year terms up on the court this year, he was the sole candidate to take part in the pilot program.

For this election only, the program offered an alternative to traditional fundraising amid concerns about the influence of private contributions on the judiciary. To qualify, Loughry attracted more than 700 contributions of varying amounts from across the state and then swore off additional private donations.

As created by the Legislature, the program’s rescue funding aimed to help him from being outspent by traditionally financed candidates and outside groups. But Friday’s ruling concluded that a 2011 U.S. Supreme Court decision that struck down “rescue” funding in Arizona’s public financing program applied to West Virginia’s as well.

“There is no constitutional problem with West Virginia providing a fixed contribution amount to publicly financed candidates,” Chief Justice Menis Ketchum wrote for the court. “However, political speech rights are violated when West Virginia provides matching funds to publicly financed candidates based on the amount spent by privately financed candidates.”

The high court’s 5-4 Arizona ruling found that the offer of additional funds wrongly deterred would-be contributors to opposing candidates or groups. Aided by the nonpartisan Brennan Center for Justice at New York University’s law school, Loughry had argued that judicial elections are sufficiently different from those for the other two branches of government. Arizona’s program applies only to legislative and executive branch races.

Justice Robin Davis, a Democrat and the sole incumbent on the ballot, triggered the rescue funding provision for Loughry when her campaign reported spending nearly $494,500 after the May primary. She recused herself from his case, as did justices Brent Benjamin and Margaret Workman. Circuit judges Christopher Wilkes of Berkeley County, James Mazzone of Ohio County and John Marks of Harrison County heard the case in their place. Wilkes may file a separate opinion agreeing with Friday’s conclusions.

Loughry petitioned the Supreme Court after the State Election Commission deadlocked over releasing the $144,500 in “rescue,” or matching, funds. But the commission later voted to defend the rescue funding provision, and did so at a Tuesday hearing for Loughry’s case. The state attorney general’s office cited the Arizona decision and other recent U.S. Supreme Court and federal rulings to question the provision’s constitutionality at the hearing.

Still pending is a federal lawsuit challenging the provision, filed by former state official and Democratic Party chairman Mike Callaghan. He argued the prospect of matching funds chilled his right to contribute to his party’s nominees, Davis and recent State Bar President Tish Chafin,

The Democrats face Loughry and Jefferson County Circuit Judge John Yoder, Republican, in the Nov. 6 election. The next round of campaign finance reports is due at the end of this month.