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.