September 12, 2012
West Virginia Supreme Court Strikes Public Campaign Finance Law
The Supreme Court of Appeals of West Virginia ruled in State of West Virginia ex rel Loughry v. Tennant that the matching funds provision in the state's public campaign finance law violated the First Amendment. The ruling follows the Supreme Court's decision in 2011 in Arizona Free Enterprise Club's Freedom PAC v. Bennett striking a similar Arizona law.
West Virginia's law, enacted in 2010, before Arizona Free Enterprise came down, provided a lump-sum initial payment to any participating candidate in a state election for the state Supreme Court of Appeals. It then provided matching funds for a participating candidate when a privately-financed opposing candidate spent the amount equivalent to the lump-sum payment plus twenty percent. In short, this meant that a participating candidate would receive matching funds from the state above the initial lump-sum payment whenever his or her privately-funded opponent spent more than the initial lump-sum payment plus twenty percent. Thus West Virginia's scheme forced the same kind of speech-restricting choice on a non-participating candidate that the Supreme Court said was foisted on a non-participating candidate in Arizona Free Enterprise: spend more (i.e., speak more) and trigger matching funds for your opponent, or don't spend/speak more.
West Virginia's law only applied to judicial candidates for the state Supreme Court of Appeals, though. This was by design: the legislature was concerned about the reputation of the judiciary in light of the problems that gave rise to Caperton v. A.T. Massey Coal Co., among others. The petitioner here argued that West Virginia's law was distinguishable from Arizona's for that reason--that judicial elections raise especial concerns that exempt them from the analysis in Arizona Free Enterprise.
The court rejected that argument and ruled that Arizona Free Enterprise applied with full force to all elections,including judicial elections. It went on to say that the matching fund scheme wasn't narrowly tailored: the state could have adopted a less speech-restrictive means to achieving its interest by simply increasing the amount of the initial lump-sum payment; and the matching fund scheme didn't advance the state's interest in protecting the impartiality and integrity of the judiciary in an election where three of the four candidates were self-financed.
The court allowed the petitioner to keep his initial lump-sum payment, however, saying that there was no constitutional problem with that.
The case means that the petitioner, a participating candidate who sought matching funds by way of mandamus after the state itself concluded that the matching fund scheme was unconstitutional and declined to pay, will not get matching funds for his election. And because the court ruled the scheme unconstitutional, neither will anybody else.
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