CHARLESTON — Several disputes over the funding of political campaigns have made West Virginia a legal battleground, three months ahead of this year’s general election.
One federal lawsuit seeks to remove the state’s $1,000-per-election cap on contributions to independent expenditure political expenditure committees. A separate pair of dueling cases, one in U.S. District Court and the other in the state Supreme Court, meanwhile takes opposing positions regarding whether one of this year’s candidates for justice can receive additional public funding.
U.S. District Court Judge Thomas Johnston could rule this week on whether to block the contribution cap temporarily, while the challenge filed by Stay the Course West Virginia and two of its potential donors is pending. The independent PAC says it wants to support certain incumbents in November. The president of Pineville Lumber, a corporation that seeks to give to the PAC in excess of the state cap, is a contributor to Democratic Gov. Earl Ray Tomblin in this year’s gubernatorial race.
The state Supreme Court is expected to act once it receives replies by Thursday regarding the so-called “rescue” funds sought by Allen Loughry, a Republican candidate for the court and a longtime law clerk there. Loughry petitioned the court last week to compel release of the funds. He has also intervened in a federal lawsuit filed by Mike Callaghan, a former state and Democratic Party official, which wants the rescue funding provision ruled unconstitutional. Callaghan sued July 18, seeking to support his party’s nominees in this year’s two-seat Supreme Court race.
A relative handful of prior court rulings, issued within the last several years, could help decide all of these cases — though the parties involved disagree as to how.
Perhaps the best-known of these legal precedents is the Citizens United ruling, the 5-4 decision that in 2010 freed corporations and labor unions of most limits on political spending. A conservative group, Citizens United, had sued the U.S. Federal Election Commission while seeking to air a firm targeting Democrat Hillary Clinton, now the U.S. Secretary of State.
Another 5-4 U.S. Supreme Court decision the following year struck down rescue funding in Arizona. That state’s program offers public funds to legislative and executive branch candidates, as an alternative to traditional fundraising. A group of Republican politicians and a conservative group, the Arizona Free Enterprise Club, filed separate challenges that led to the 2011 ruling.
Rescue funding aims to help publicly financed candidates keep pace with opponents or outside groups receiving private contributions. Supporters of public financing view rescue funding as advancing the overall goal of such programs, to combat the perceived influence of campaign cash. But the 2011 U.S. Supreme Court ruling concluded that such funding stifles free speech, because it discourages the private spending or donations that would trigger it.
The Arizona decision’s role in the West Virginia rescue funding cases hinges on whether judicial offices, and the elections for them, are sufficiently different from those of the other two branches of government.
“Both the state and the federal court have the power and the authority to recognize the compelling and important state interests that are at issue with judicial public financing,” said Adam Skaggs, senior counsel at the nonpartisan Brennan Center for Justice at New York University’s law school.
The Brennan Center is helping to represent Loughry. It has weighed in on many of these high-profile campaign finance cases, and also has championed the public financing programs in West Virginia and other states.
Anthony Majestro, Callaghan’s lawyer, cited several cases issued since 2002 to argue that the U.S. Supreme Court has recognized no distinction between judicial and other political races. Those include one brought by another conservative group, American Tradition Partnership, which led to a June decision striking down Montana’s law limiting corporate campaign spending.
That U.S. Supreme Court ruling, again reached 5-4, reaffirmed Citizens United. It rejected several arguments from Montana officials, including one warning that the corporate spending can influence judicial campaigns and so threatens “to undermine the integrity of the judicial system as much as the political system.”
Yet another 5-4 U.S. Supreme Court ruling arises from a West Virginia case. Coal operator Hugh Caperton successfully had state Justice Brent Benjamin barred from hearing his case against Massey Energy Co. because its then-chief executive, Don Blankenship, spent more than $3 million to help Benjamin win election in 2004. All three pending cases refer to this 2009 decision, as did Montana officials in theirs.
Blankenship’s spending had helped bankroll an independent PAC, And For The Sake Of The Kids. The Brennan Center had sided with Caperton in that case, and Skaggs questioned the impact of knocking down the contribution cap.
“You’re going to have the ability to create an entity in West Virginia that can take unlimited contribution from individuals and corporations for the exclusive purpose of electing a particular judge,” Skaggs said. “If and when that becomes legal, the importance of reforms like public financing grows exponentially more important, to protect the impartiality of the judiciary.”
But Allen Prunty, a lawyer for Stay the Course, has cited how Citizens United addressed the Benjamin-Blankenship case.
“Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned,” Justice Anthony Kennedy wrote for the majority in Citizens United.