A high-stakes legal and political battle in West Virginia’s state Supreme Court race is characterized by weighty constitutional questions and a fair amount of irony.
The story begins with former Massey Energy CEO Don Blankenship’s spending $3 million of his own money in the 2004 West Virginia Supreme Court race to defeat incumbent Democrat Warren McGraw and help elect Republican Brent Benjamin.
Democrats stewed over McGraw’s defeat. Then-Supreme Court Justice Larry Starcher went so far as to charge that Benjamin’s election “created a cancer on the court,” since Blankenship’s company had cases pending before the justices. The fact that Benjamin ruled against Massey 80 percent of the time seemed lost in the furor.
The Independent Judicial Commission report said Blankenship’s spending, as well as a steady increase in the amount of money spent in Supreme Court races, raised the “threat of bias, and certainly the public perception of bias” on the court. The commission recommended, and the Legislature approved, a public campaign financing program for high court candidates.
The first Supreme Court candidate to take advantage of public financing is a Republican, Allan Loughry. He raised enough money in small donations to qualify for $350,000 in public funds for the General Election. He is one of four people (two Republicans–Loughry and John Yoder– and two Democrats—incumbent Justice Robin Davis and Tish Chafin) running for two seats on the court.
Another provision of the law says that when a candidate raises and spends $420,000, that triggers more matching funds for the publicly financed candidate. Davis has reached that threshold.
Loughry argues that under the law he is entitled to receive up to $700,000 of additional public funding, depending on how much more his opponents raise and spend. However, the state Election Commission failed on a tie vote to approve the money.
The two “no” votes came because the West Virginia Attorney General Darrell McGraw issued an opinion saying the public financing program is unconstitutional. Loughry has taken his fight to the state Supreme Court, where arguments will be held Sept. 4.
Notably, three of the five members of the court have taken themselves off the case: Benjamin, because he’s discussed the pilot program with Loughry; Davis, because she is a candidate in the race and Justice Margaret Workman, because Loughry clerks for her.
Loughry’s argument is that a deal’s a deal. He has met the requirements in the law and the state should release the additional money.
Loughry is getting help from the Brennan Center for Justice, which has intervened on his behalf. The Brennan Center is funded in part by liberal activist George Soros. The Brennan Center has also been a frequent critic of Justice Benjamin, while advocating ways to curtail spending in judicial races.
There is yet another twist to the story. Former state Democratic Party Chairman Mike Callaghan, who supports Davis and Chafin, has joined the fight to try to keep Loughry from getting the money. Additionally, one of Callahan’s attorneys in the case is Anthony Majestro, who is also legal counsel for the Chafin campaign.
Callaghan argues that public financing law is unconstitutional, because of a 2011 U.S. Supreme Court decision (Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett). Writing for the 5-4 majority, Chief Justice John Roberts said Arizona&ssquo;s law put an undue burden on privately-financed candidates because each time they raised money it triggered public funding for their opponents.
So, follow me now, the former state chairman of the West Virginia Democratic Party (Callaghan) is using a U.S. Supreme Court decision authored by a conservative Republican justice (Roberts) to try to strike down a West Virginia law pushed through the Legislature by Democrats.
The state Attorney General (Darrell McGraw) issued an opinion opposing the public financing pilot program that was passed because of the defeat of McGraw’s brother (Warren McGraw) in the 2004 Supreme Court race. That decision has so far blocked Loughry from getting additional campaign funds. Loughry used to work for McGraw as a senior assistant.
Meanwhile, a Republican state Supreme Court candidate (Loughry) is trying to use a state law the Democrats pushed through, in part, because of Don Blankenship’s spending that led to the election of a Republican justice (Benjamin). Weighing in on Loughry’s side is the left-leaning Brennan Center.
Too much?
There are two ways to follow this story: you can try to keep track of the irony and the political intrigue or just wait to see if Loughry gets the money. Either way, the West Virginia Supreme Court’s decision in this case could have a significant impact on one of the most important state elections this year.