Campaign financing wouldn't survive challenge, AG says

CHARLESTON, W.Va. -- Based on previous U.S. Supreme Court rulings -- including the Citizens United case that overturned limits on corporate campaign contributions -- there's no way a matching funds provision in West Virginia's public campaign financing pilot project could survive a challenge before the high court, the state attorney general's office has concluded.Republican Supreme Court candidate Allen Loughry is asking the state Supreme Court to order the release of more than $140,000 of public campaign matching funds due him under a state pilot project for public financing of the Supreme Court campaign.In a brief to the court, managing deputy attorney general Barbara Allen states that while the public financing pilot project is well intentioned, it is at odds with U.S. Supreme Court rulings contending that such matching fund provisions violate the First Amendment rights of privately financed candidates."In short, the petitioner has failed to put forth any compelling interest supporting the matching funds provision of the West Virginia Code ... that could possibly withstand U.S. Supreme Court review," Allen states.The state Supreme Court has set oral arguments in Loughry's motion for Sept. 4. Currently, there is no party to the suit to argue against releasing the "rescue" funds.Former state Democratic Party chairman Michael Callaghan had filed a motion to intervene to argue against releasing the funds, but the court refused to make him a party to the suit.However, in the court order, the justices invited Allen to intervene in opposition to releasing the matching funds.Allen had previously provided an advisory opinion to the state Elections Commission arguing that based on previous U.S. Supreme Court rulings -- including a 2011 case overturning a similar law in Arizona, and the Citizens United case, which overturned limits on corporate contributions to campaigns -- the state's public financing pilot project would be ruled unconstitutional.The state Supreme Court has set a noon deadline today<co > for responses to Allen's motion to intervene.In addition to Loughry, an attorney for Secretary of State Natalie Tennant and other members of the state Election Commission will argue that the matching funds provision is constitutional.
On July 17, the commission deadlocked on a 2-2 tie on a motion to award a $144,471 rescue payment to Loughry to match the $494,471 that incumbent Justice Robin Davis, a Democrat, had reported spending on the general election through June 30.Two weeks later, however, the commission voted unanimously to defend the constitutionality of the matching funds provision in the public financing pilot project.Under the law, Loughry received $350,000 of public financing for the Nov. 6 general election campaign, and could receive up to $400,000 of additional "rescue" funds to match spending by opponents in the fall campaign.Loughry contends that, unlike the public financing laws overturned by the U.S. Supreme Court, there is a compelling interest for publicly financed judicial campaigns, to avoid any perception of judicial bias toward lawyers who made campaign contributions.However, in the brief, Allen suggests that nothing in U.S. Supreme Court rulings since Citizens United would support a "judicial exception" to uphold the matching funds.
"If combating corruption is not a compelling state interest -- and the court held in no uncertain terms in both Citizens United and Bennett ... that it is not -- we cannot envision it finding the perception of possible judicial partiality to be sufficient," Allen states.Reach Phil Kabler at or 304-348-1220.   
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