By: Jordan Smith

This blog is no stranger to the judicial election structure in the State of West Virginia.  In 2015, one of our posts discussed West Virginia’s transition from partisan to nonpartisan judicial election.  Today, this blog returns to the West Virginia judiciary to discuss the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program (“Pilot Program”).

In 2010, shortly after the United States Supreme Court’s ruling in Caperton v. Massey, the West Virginia Legislature sought to restore public confidence in judicial elections.  To combat the surge in election expenditures in judicial elections, the Legislature enacted the Pilot Program, a state sponsored public campaign fund for candidates running for positions on the West Virginia Supreme Court of Appeals.  Essentially, candidates who opt in to the Pilot Program receive state funding (in lieu of special interest funding) for their campaigns; the candidates are prohibited from utilizing private loans and personal funds, but are not prohibited from receiving individual donations (though not in excess of $100) from any individual West Virginia voter.  The Pilot Program, which first applied to the 2012 election cycle, sought to “ensure that individuals and committees who contribute large sums of money don’t have an undue influence on the political process.”  Further, in enacting the Pilot Program, the West Virginia Legislature cited the “detrimental effects of spending large amounts by candidates and independent parties” as “especially problematic in judicial elections because impartiality is uniquely important to the integrity and credibility of courts.”

The Pilot Program serves two purposes: (1) providing public financing for the election campaigns of certified candidates, and (2) paying the administrative and enforcement costs of the Secretary of State and the State Election Commission relating to the program.  Certified candidates are those candidates who have applied to the State Election Commission for public funding and who have filed a sworn statement that he or she has and will comply with the Program’s requirements throughout the election process.  Once the Secretary of State has verified that all requirements have been met up to that point, the candidate is certified to receive public campaign funding.

The Pilot Program receives its funding from a plethora of sources, including money appropriated by the Legislature specifically for the fund, voluntary donations made to the fund, and civil penalties levied against opted-in candidates violating the Pilot Program’s requirements.

Indeed, the Pilot Program places a number of requirements upon participating candidates, the foremost of which is that the participating candidate receive a minimum of five hundred qualifying contributions to his or her campaign; a qualifying contribution is any contribution of not less than $1 and not more than $100 made to the candidate by a registered West Virginia voter.  Further, a minimum of ten percent of the total number of qualifying contributions must come from each of West Virginia’s congressional districts.  In addition to these criteria, the Pilot Program also requires that the candidate to keep a written record (i.e. receipts) of all qualifying contributions, which must be reported to the Secretary of State’s office at the beginning of each month.

One section of the Pilot Program has been abolished by the West Virginia Supreme Court of Appeals.  In its original incarnation, the Pilot Program set limits on candidate’s (whether participating in the program or not) campaign expenditures.  If any non-participating candidate exceeded this limit, the participating candidates were entitled to “matching fund” disbursements from the Pilot Program.  The goal was to level the playing field for all candidates, thereby reducing public perceptions of unfairness in the election process.  In 2012, Justice Allen Loughry sought reelection to the Supreme Court of Appeals and funded his campaign via the Pilot Program.  When the need arose for the disbursement of matching funds, the Secretary of State refused to release them.  Loughry filed suit to compel the release of the funds and the West Virginia Supreme Court of Appeals declared the matching funds provision an unconstitutional “burden on privately financed candidates’ free speech rights in violation of the First Amendment to the United States Constitution.”  The court’s ruling was the direct result of the United States Supreme Court’s striking down similar provisions of Arizona’s publicly financed campaign fund.  Justice Loughry, the first candidate to make use of the fund, retained his seat and now serves as the Chief Justice to the West Virginia Supreme Court of Appeals.  In the 2016 election cycle, former Justice Brent Benjamin and former state legislator William “Bill” Wooton, opted into the Pilot Program, though attorney Beth Walker ultimately prevailed.

The West Virginia Legislature, noting the general success of the Pilot Program (at least in the single instance it had been used at the time), permanently authorized the program 2013.  The program does seem to have had some effect in reducing the volume of fundraising in Supreme Court of Appeals elections.  In the 2008 and 2012 election cycles, candidates raised a total of $3.3 million and $3.7 million, respectively; the 2016 cycle, however, saw candidates raise a total of just under $2 million.  [Note, however, that independent expenditures unattributed to the candidates surpassed $2.9 million in 2016.]

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