Bluefield Daily Telegraph, Bluefield, WV

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March 29, 2010

West Virginia election legislation could attract lawsuits

By LAWRENCE MESSINA Associated Press

CHARLESTON (AP) —

West Virginia officials may wind up in court over a pair of measures passed this legislative session that would change how elections are conducted. Gov. Joe Manchin has already signed one of the bills, which offers public funding to state Supreme Court candidates in 2012. The other bill, still awaiting his review, revisits efforts to regulate third-party election advertising. The latter measure will likely rekindle a legal fight over such rules. The Center for Competitive Politics, meanwhile, may sue over the public financing pilot program, group spokesman Jeff Patch said. “We oppose taxpayer financing as a matter of policy,” Patch said, adding that the center had made no final decision regarding legal action. With two court seats up in 2012, the pilot program would provide candidates who qualify with initial amounts of $200,000 for a contested primary and $350,000 for a contested general election. Among other concerns, Patch cited the program’s provision that would provide additional “rescue” funds to participating candidates. Spending more than 20 percent of those initial amounts by third parties or nonparticipating candidates would trigger the release of up to $400,000 for a primary and $700,000 for a general election. The legislation cites the state’s increasingly expensive Supreme Court contests, and the accompanying criticism that the amounts and sources of campaign cash undermine public confidence in the judiciary. The nonpartisan center opposes campaign finance limits, and believes the provision violates the free speech rights of nonparticipants. “Money does not get out of politics. It just goes in different directions,” Patch said. “We just think this is a waste of time and resources.” The group is already helping an unsuccessful 2009 candidate for Wisconsin’s Supreme Court sue over that state’s public financing program. Among other grounds, the pending federal lawsuit argues that a June 2008 U.S. Supreme Court ruling voids Wisconsin’s rescue funds provision. That ruling struck down the “millionaire’s amendment” from federal campaign finance rules. The amendment had allowed candidates to receive larger campaign contributions when their wealthy opponents spent heavily out of their own pockets. But Manchin officials and other supporters of West Virginia’s new law don’t believe that decision would apply. It had hinged on the notion that there’s no potential corruption when candidates finance their own campaigns, said Charles Hall, a spokesman for the nonpartisan group Justice at Stake. “They’re trying to take a limited set of circumstances, and stretch it into a broad principle that overturns more than 30 years of federal court rulings,” Hall said. “They are a long way from the finish line.” Hall’s group helped champion the West Virginia public financing bill and supports efforts aimed at reducing the influence of special interests over the courts. He cited how the pilot program is modeled on North Carolina’s judicial public financing law, which was unanimously upheld by the federal appeals court that hears cases both from that state and West Virginia. That decision, from the 4th U.S. Circuit Court of Appeals, came out before the U.S. Supreme Court axed the millionaire’s amendment. Hall noted that the latter court has since refused to hear the appeal in the North Carolina case, even after lawyers challenging public financing invoked the millionaire’s amendment ruling. Wisconsin Right to Life has also sued over that state’s public financing program. Its lawyer, James Bopp, has represented West Virginia’s anti-abortion group in its challenge of campaign finance rules addressed by the other piece of election-related legislation passed this session. That measure responds to this year’s landmark U.S. Supreme Court ruling that struck down limits on corporate political spending. While complying with that decision, the legislation also relies on it to try to regulate third-party election ads. Twice before in recent years, state lawmakers have sought to require disclosures behind ads that appear to advocate the election or defeat of a candidate but don’t employ such specific phrases as “vote for.” But each time, a federal judge has ruled the effort unconstitutionally vague or not in keeping with federal rules. The bill sent to Manchin this session seeks to pass muster by embracing findings in the recent ruling and defining the equivalent of “express advocacy” as language “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Bopp and officials with the Center for Individual Freedom, a nonpartisan group that also sued West Virginia over these rules, did not respond to requests for comment Friday. But the legislation could revive their most recent challenge, which remains pending, if Manchin signs it. Patch noted that the bill also tries to require disclosure of election-timed ads that use non-broadcast forms as newspapers and billboards. Federal rules govern only radio and television ads. “West Virginia seems to be going further than the federal government in regulating political speech, and they’re in dangerous, uncharted waters,” he said. “A federal court would likely demand such a justification to uphold expanded government power in this area.” Hall said recent court rulings underscore the importance of such disclosure efforts. “It’s just essential that sunlight be cast on who is spending in elections,” Hall said. “The prospect for corruption is apparent when special interests are allowed to write blank checks behind closed doors.”

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