CHARLESTON, W.Va. (Legal Newsline) - After nearly two hours of oral arguments, the question of additional public funding in the West Virginia Supreme Court race rests squarely in the hands of the state Supreme Court.
Republican Allen Loughry is the only candidate among the four up for two Supreme Court seats who took the steps necessary to qualify for public financing under a pilot project created by the Legislature.
Loughry already has received $400,000 of public funds for his campaign. The question facing the court is whether the State Election Commission can give him additional funds of up to $700,000 as his opponents spend money in their campaigns.
"There is no doubt that the conditions (to release the money) have been met," Adam Skaggs, a Brennan Center attorney representing Loughry, said in Tuesday's oral arguments. Loughry also is represented by Marc Williams of the Huntington office of Nelson Mullins.
So far, the SEC has not given him the so-called matching or "rescue" funds, citing part of an Arizona law the United State Supreme Court ruled against last year. Loughry sued the SEC to hand over those "rescue" funds.
Justice Thomas McHugh started the hearing by framing the entire case, talking about free speech, First Amendment rights and other court rulings regarding public financing of elections.
"It seems the thread in all these U.S. Supreme Court opinions is, 'We're not going to allow matching funds, no matter what it is," said McHugh, whose seat will be one of two up for grabs this fall after he decided to not seek re-election.
Skaggs noted that the U.S. Supreme Court has said judicial elections are different than elections for other offices because judges are supposed to remain unbiased and that raising money for a judicial campaign can give the appearance of owing favors to contributors if a candidate is elected to the bench.
"The role of judges and other elected officials are fundamentally different," he said. "If a candidate takes this public financing, it proves to the people of West Virginia that there is an alternative. This was designed to create a pot of money for candidates to eliminate a perception of bias in the judiciary.
After Skaggs spoke, Senior Deputy Attorney General Silas Taylor spoke on behalf of the SEC. He said the SEC supports the release of the matching funds but isn't until it is given the legal OK to do so.
Then, Managing Deputy Attorney General Barbara Allen presented Attorney General Darrell McGraw's stance on the matter after he was allowed to intervene in the case last week. Last summer, Allen had written an opinion last year on behalf of McGraw's office saying the West Virginia law is unconstitutional in light of the U.S. Supreme Court's ruling in the Arizona case.
The entire matter also is before a federal court. Former state Democratic Party chairman Mike Callaghan filed a federal suit aimed at striking the matching fund aspect of the state law. That case still is pending.
McHugh and Chief Justice Menis Ketchum asked the majority of the questions during Tuesday's hearing. The other three justices -- Robin Davis, Margaret Workman and Brent Benjamin -- recused themselves from the case. Sitting in their place were circuit judges J. Lewis Marks Jr., James P. Mazzone and Christopher Wilkes.
A few times, Ketchum asked the parties how giving the public funds to Loughry would change how the public views the other candidates. The other three candidates -- Democrats Davis and Tish Chafin and Republican John Yoder -- did not take part in the argument and have not voiced any opposition to Loughry receiving the matching funds.
"No matter how much money the state gives Mr. Loughry, isn't there still some appearance of bias toward those three candidates who have raised hundreds of thousands of dollars?" Ketchum said.
In an effort to further their arguments ahead of Tuesday's oral arguments, Loughry and the SEC responded Friday to amicus briefs filed by Callaghan and McGraw.
In his, Loughry contends the two are "mistaken" in arguing that the matching funds provision of the pilot program imposes unconstitutional burdens.
Both Callaghan and McGraw's office argued in their briefs with the state's high court, filed Aug. 24, that the provision imposes such burdens on the First Amendment rights of candidates who have chosen not to participate in the program.
They both argued that Loughry's request for a writ should be denied.
In his 19-page response filed with the Court late Friday, Loughry said their argument against the provision rests on the contention that it is unconstitutional under the U.S. Supreme Court's decision in the Arizona case -- Arizona Free Enterprise Club's Freedom Club PAC v. Bennett.
"Bennett's holding, however, was limited by the facts of that case to only non-judicial elections, and when the analysis called for in Bennett is applied to the very different context here -- which involves exclusively judicial elections -- it supports a conclusion that Section 3-12-11(e) is constitutional."
But the law, Loughry argues, does not ban anyone from speaking.
He noted, "As to whether Section 3-12-11(e) burdens the speech of nonparticipating candidates, it is telling that no nonparticipating candidates has complained of any injury."
Tennant and the SEC, in a separate response to the briefs filed late Friday, argue that neither the U.S. Supreme Court's ruling in Citizens United v. Federal Election Commission nor Bennett preclude matching funds in a judicial campaign.
"The amicus briefs claim that the Supreme Court rejected the above arguments when it held that Montana's ban on corporate independent expenditures violated the Supreme Court's holding in Citizens United. Not so," Taylor wrote for the respondents.
"Montana's ban on corporate expenditures applied to all campaigns, whether legislative, executive or judicial. The Montana Legislature made no distinction, either in its findings (or rather lack thereof) or its statutory language, between judicial and other campaigns."
Tennant and the SEC contend that in upholding the ban, the Montana Supreme Court sought to distinguish Citizens United, in part because Citizens United was limited to executive and legislative campaigns. The State of Montana made the same argument.
"Of course, the reason that Montana could not 'meaningfully distinguish' its statutory ban from that at issue in Citizens United was that Montana's ban applied to all campaigns, not just judicial campaigns," Taylor wrote. "The state's putative interest in public respect for the impartiality and credibility of its judiciary (an interest not expressed in Montana's statutes) was neither credible nor meaningful -- it was a post-hoc rationalization to avoid the application of Citizens United in Montana."
He continued, "By contrast, West Virginia 1) does not ban independent corporate expenditures, 2) carefully researched judicial campaign spending, 3) made explicit legislative findings (based on evidence) that the pilot program would enhance the public's perception of the integrity and credibility of the judiciary, 4) limited the pilot program to the judiciary and 5) did not attempt to justify it based on quid pro quo corruption or the appearance of corruption -- the primary justifications asserted by Montana and rejected by the Supreme Court in both Citizens United and Bennett, as not implicated by independent or personal campaign expenditures."
Editor's Note: Jessica Karmasek contributed to this report.