CHARLESTON, W.Va. -- Attorneys Tuesday debated whether a state pilot project for public financing of Supreme Court elections could withstand a challenge in the U.S. Supreme Court on the grounds it applies strictly to judicial elections.For about two hours, the state Supreme Court heard arguments on a motion by high court candidate Allen Loughry, a Republican, to order the release of more than $140,000 in matching funds due him under a Supreme Court public campaign financing pilot project.Adam Skaggs, with the Brennan Center for Justice, argued that while the U.S. Supreme Court has struck down other matching fund provisions as violating the First Amendment rights of privately financed candidates, those cases were limited to executive and legislative branch races - while the court has recognized the compelling interest of having an impartial judiciary.Unlike executive and legislative races - where candidates are expected to have partisan positions -- the state has a compelling interest to assure the election of judges who are not beholden to campaign contributors, Skaggs said."The people of West Virginia should have confidence that their highest court is fair and impartial," Skaggs said.Senior deputy attorney general Silas Taylor, representing the state Elections Commission, also argued that there is a compelling state interest to uphold the public financing provision."The integrity and appearance of integrity in the judicial system is absolutely essential," he said. "It is a compelling state interest."However, managing deputy attorney general Barbara Allen argued that, based on rulings over the past four years, there is near-certainty the U.S. Supreme Court would overturn the matching fund provision as an unconstitutional violation of the free speech rights of privately funded candidates and their contributors."I don't like the answer, but the U.S. Supreme Court has given us an answer," she said."Whether we think, as a public policy matter, that it's a good idea, the fact is we can't do it because the First Amendment stands in the way, Citizens United stands in the way, Bennett stands in the way," Allen said of the matching funds provision, citing U.S. Supreme Court decisions rejecting restrictions on private funding of campaigns.
During the unusually long two-hour hearing, Justices Thomas McHugh and Menis Ketchum asked the majority of questions. While they seemed sympathetic to the concept of promoting fair and impartial judicial elections, they also questioned whether the U.S. Supreme Court would make an exception to its previous rulings."I don't think anyone in this courtroom disagrees that if we can find a way to shore up the public's perception that the courts are unbiased, that's a good thing," McHugh said.Ketchum noted, "Isn't it the public's perception that if a lawyers' group has a fund-raiser for you, and they all bring you $1,000 each, they expect you to stay bought?"Justices Tuesday did not indicate when they will rule on Loughry's motion, but did note that timing is critical, with only two months before Election Day.Skaggs said Loughry's campaign would be irrevocably harmed if he is denied the "rescue" funds, since he would either be limited to the initial $350,000 public financing payment he has received from the state, or would have to withdraw as a publicly financed candidate and attempt to raise contributions.
"It's simply unfathomable to suggest he could start at zero, when his opponents have had months to raise money for their campaigns," Skaggs said.Under the state Supreme Court public financing pilot project, Loughry could be eligible for up to $700,000 in matching funds, as the three opposing candidates for the two available seats on the high court exceed various campaign spending thresholds.Loughry is the only candidate to participate in the public financing pilot project.Skaggs noted that none of the privately financed candidates - Justice Robin Davis, Charleston lawyer Tish Chafin, both Democrats, and Circuit Judge John Yoder, a Republican - had come before the court to argue that awarding matching funds to Loughry would impose an undue burden on their campaigns.Reach Phil Kabler at firstname.lastname@example.org or 304-348-1220.