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W.Va. Supreme Court race tests public financing experiment

CHARLESTON, W.Va. -- Plenty of money is entering West Virginia's Supreme Court election this year, despite a public financing pilot program meant to blunt the perceived influence of campaign cash.

 The $1.8 million amassed by the eight candidates as of March 30 marks a 40 percent increase over the same point in 2008, the last time that two Supreme Court seats were on the ballot. This year's candidates must file one more round of campaign finance reports before the May 8 primary. The five candidates who ran in 2008 raised another $685,000 during their final pre-primary period.

This year's figure also appears to continue a trend seen in judicial elections nationally. Fundraising in state supreme court-level races across the country increased from $5.9 million during the 1989-90 elections to $45.6 million during 2007-09, according to the Brennan Center for Justice at the New York University School of Law. The nonpartisan center has scrutinized judicial campaign funding and spending, and promotes public financing.

West Virginia's pilot program offers public funds as an alternative to the traditional chase for campaign cash. Among the eight candidates this year, however, only Republican Allen Loughry is taking part.

"The idea is that the program will eliminate the perception that Supreme Court seats can be bought by attorneys who appear before the court," Loughry told The Associated Press last week. He added that, "the amount of money in these judicial elections is extremely corrosive on the system."

Loughry said he hopes his campaign will help show whether public financing should become a permanent, voluntary option for Supreme Court candidates. Supporters of the pilot program welcome Loughry's participation, but question whether this year's election will truly showcase public financing as a viable alternative.

"We're disappointed that more candidates weren't interested," said Julie Archer of the West Virginia Citizen Action Group. "We don't really feel like this is going to be a fair trial run of how a public financing program can work, in terms of reducing the influence of money."

Citizen Action Group is part of West Virginia Citizens for Clean Elections, a coalition that has championed the pilot project. Archer is among several group members who contributed small amounts to Loughry, a longtime law clerk at the Supreme Court, to help him qualify for the program's funding.

Hurdles for continuing the program include dedicating revenue to supply the funding. Lawmakers agreed to withdraw $1 million annually for three years from an account related to the state auditor's purchase-card system for the public financing. However, they agreed to that while rejecting such other sources as fees levied on lawyers and court filings, the state treasurer's unclaimed-property trust fund and a voluntary donation check-off on personal income tax returns.

Lawmakers considered adding such revenue sources to the program during their 2011 session and this year, but those attempts stalled.

"If they decide to extend it, funding is one of the issues that will have to be worked out," Archer said.

Among other concerns, critics of such campaign financing alternatives question this use of public funds. Former State Bar President Tish Chafin, one of the six Democrats in this year's race, raised that issue last week. Chafin made the comment while responding to Loughry's criticism of her announcement that she was loaning $1 million to her campaign.

Supporters of public financing also must win over lawmakers from Loughry's party. Five of seven GOP senators present voted against the final version of the pilot program legislation in 2010, as did 18 of 29 Republicans in the House of Delegates.

A 2011 U.S. Supreme Court ruling also limits the program, whether it becomes permanent or not. That 5-4 decision said Arizona's public financing program unconstitutionally infringed on free speech by providing extra money to publicly funded candidates to keep pace with privately funded rivals or independent groups.

Loughry argues that a 2008 ruling by a federal appeals court, upholding North Carolina's public financing option for judicial candidates, allows West Virginia to keep its matching-funds provision. West Virginia legislators and their legal staff have concluded otherwise, though. Attorney General Darrell McGraw also has advised state election officials that the matching-funds language violates the U.S. Constitution under the Arizona ruling.

That 2011 Arizona decision also followed 2010's landmark ruling known as the Citizens United case. By 5-4, the U.S. justices struck down limits on corporate and union political spending in favor of those groups' free speech rights.

The pilot program offered Loughry up to $50,000 for the primary, and would have provided more if he faced a contested primary. Loughry and Circuit Judge John Yoder are the only Republicans running in the two-seat race. The program will give Loughry $350,000 for the general, and would have promised up to $400,000 in matching funds before the Arizona decision.

"The Arizona case made clear that strict scrutiny applies to matching-funds provisions like West Virginia's because they impose substantial burden on speech," said Anthony Majestro, a lawyer who has argued campaign finance cases in court and also represents Chafin's campaign. "The idea that the West Virginia rescue provision is constitutional is based on wishful thinking, rather than legal analysis."


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