West Virginia state Supreme Court candidate Allen Loughry is in a bind.
The Republican, who is one of four people running for two seats on the court, jumped through myriad hoops to qualify for public campaign financing under a pilot program approved by the state Legislature.
Loughry has already gotten $400,000 and under the law he now qualifies for up to another $700,000, as his self-financed opponents raise and spend more money.
However, the state Election Commission refused to release the additional money, citing an opinion from the state Attorney General’s Office saying the “rescue funds” are unconstitutional.
Loughry appealed to the state Supreme Court, which heard arguments earlier this week.
The argument against giving Loughry the money is compelling; the U.S. Supreme Court, in a case from Arizona, found that the matching funds put an undue burden on privately-financed candidates because each time they raised money, their publicly-financed opponent got money.
“What you are doing is trying to level the playing field between the publicly and privately funded candidates, which is something that you cannot do at the expense of the First Amendment,” argued Deputy Attorney General Barbara Allen.
But Loughry’s lawyer, Adam Skaggs from the Brennan Center for Justice, countered that judicial races are different than campaigns for executive or legislative seats. The state has a compelling interest in ensuring the integrity of the court, and one way to do that is to try to protect judicial candidates from the excesses of money and politics.
Loughry faces a high bar. He’s essentially asking the West Virginia Supreme Court to carve out an exemption from a U.S. Supreme Court decision.
It’s never easy predicting which way the high court will rule, and it’s even harder now, given that three of the sitting justices have removed themselves from the case and been replaced by circuit judges.
However, Justice Tom McHugh, who may well end up writing the opinion, said from the bench this week, “It seems the threat throughout all these U.S. Supreme Court opinions is, ‘We’re not going to allow matching funds, no matter what it is.’”
What if the court rules against Loughry? Here’s a candidate who has followed all the rules established by the legislature, who will then be significantly hamstrung for the rest of the campaign.
Could the court declare the public campaign finance law unconstitutional, but still release the funds just this once since the election is so close? Will Loughry be able to raise private money, and if he does that will he have to return the $400,000 in public funds he’s already received?
Or, what if the court sides with Loughry and a supporter of one of his opponents appeals the decision to the U.S. Supreme Court, thus delaying the release of the funds even further and chewing up more valuable campaign time?
The court’s decision, which should come quickly, will be far more than an academic exercise; it will have a dramatic impact on this year’s critical state Supreme Court election.