Challenger to W.Va. campaign laws not getting good news

John O'Brien Oct. 3, 2008, 3:24pm


BLUEFIELD, W.Va. (Legal Newsline) - There will be no stay on the enforcement of campaign laws in West Virginia while a group's appeal is sorted out, a federal judge ruled Friday.

The Center for Individual Freedom argued earlier this year that laws that require groups that spend a certain amount on political advertising disclose their financial backers, but U.S. District Court Judge David Faber ruled Monday that because those laws were amended over the summer that the group needed to change its argument.

The CFIF is appealing and asked for a stay on the lifting of an injunction imposed in April by Faber. It filed suit against Secretary of State Betty Ireland, among others, in March.

"In balancing the hardships to the parties, Plaintiff will undoubtedly be injured absent a stay; its speech will be restricted," Faber wrote.

"However, if a stay is granted, defendants will be substantially injured as well. In evaluating the public interest factor, the court notes that there are competing public interests at play so the public interest does not tip decidedly in favor of either side.

"Finally, as to the precise issue on which the court ruled, the court cannot find that plaintiff has a substantial
likelihood of success on the merits. As explained more fully in the court's Memorandum Opinion and Order of Sept. 29 Plaintiff's position is not supported by any legal authority and the court does not believe it presents a substantial question. Accordingly, the motion for a stay is denied."

CFIF is a nonprofit organization that says its mission is to protect the U.S. Constitution. It also argued that the campaign laws were vague.

Menis Ketchum, Margaret Workman and Bob Bastress all intervened early on in the case. Ketchum and Workman defeated Bastress and Chief Justice Spike Maynard in May's primary, and are seeking to fill the two open spots on the court, as is Republican Beth Walker.

The CFIF has infuriated Attorney General Darrell McGraw, who said he is filing a complaint against the group over its advertisement against him. He says the statements made in the commercial, which criticizes a 2004 settlement over the prescription painkiller OxyContin, are untrue.

State legal reform group Citizens Against Lawsuit Abuse criticized the bill that passed this summer and its champion, Del. Carrie Webster, D-Kanawha, in July.

Webster works for the Charleston law firm Bucci Bailey & Javins, which was hired by McGraw to pursue a lawsuit against VISA and MasterCard. The firm is one of four to represent the State, with both in-state firms (the other is Wheeling's Wexler Toriseva Wallace) featuring McGraw contributors.

The four firms could collect nearly $4 million in attorneys fees in a settlement that would provide discounts on "Energy Star" home appliances during scheduled sales.

Cohen also noted that Webster's husband, Greg Skinner, is a member of McGraw's staff.

The vice president of the West Virginia Association for Justice (formerly the state's Trial Lawyers Association) supported the law.

"An out-of-state special interest group should not be allowed to spend whatever they want to influence the outcome of a West Virginia election without disclosing who they are and who they represent," Michael Romano said.

McGraw, who is running for re-election against Republican challenger Dan Greear, said he plans to file complaints with the Internal Revenue Service and the Federal Communications Commission over the CFIF's ads, a Charleston Gazette report says.

The ads criticize McGraw's controversial 2004 settlement with Purdue Pharma over allegations that its prescription painkiller OxyContin was creating addicts and harming the state's Medicaid program. Purdue Pharma settled for $10 million, with more than $3 million going to outside counsel hired by McGraw to pursue the case.

The rest is being spent by McGraw, whose top aide admitted the settlement was structured in a way that prevented the federal Centers for Medicaid and Medicare Services from claiming its share. The CMS provides nearly 75 cents of every dollar spent on Medicaid in West Virginia.

The CMS is planning to withhold millions of dollars from its next Medicaid appropriation to the state.

The ad says McGraw is "spending $10 million from a settlement meant to help workers and the elderly, instead divvying it up between his trial lawyer buddies and a fund only controlled by McGraw."

The ad compares McGraw to an old dog who can't learn new tricks. It does not mention McGraw's opponent or the November election, instead urging viewers to "Call Darrell McGraw -- tell him to return the people's money."

In the Gazette report, Chief Deputy Attorney General Fran Hughes said, "Everyone has the constitutional right to face their accusers. We don't get the opportunity to face these people who are spending hundreds of thousands of dollars trying to influence an election.

"We are not going to allow false statements to be used by people who won't reveal who is behind them."

From Legal Newsline: Reach John O'Brien by e-mail at

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