W.Va. tax financing bill for Supreme Court races has constitutional flaw

March 5, 2010   •  By Jeff Patch
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A bill to implement a pilot taxpayer financing system for the West Virginia Supreme Court campaigns has a serious constitutional flaw and is unlikely to fulfill its goals, according to an analysis the Center for Competitive Politics (CCP) sent to legislative leaders.

House Bill 4130 passed the House of Delegates Wednesday and is under consideration in the State Senate.

“If the Senate passes this bill without remedying its obvious constitutional flaws—including a provision that two federal judges recently ruled unconstitutional—it would be the legislative equivalent of begging for a lawsuit against the state,” said Bradley A. Smith, a former Federal Election Commission Chairman and Chairman of CCP.

“If a state decides to hold elections for judges, it must afford candidates full First Amendment rights,” Smith said. “Forcing taxpayers, lawyers, divorcees and other participants in the legal system to fund campaigns they may not agree with will not reduce the influence of well-heeled interests in the Mountain State.”

The pilot program, funded in part by appropriations and fees on attorneys and legal filings, would create a taxpayer funded “option” for Supreme Court candidates in the 2012 election cycle. Candidates who seek the funds and qualify would receive up to $200,000 in state handouts for the primary ($50,000 for uncontested races). Candidates could get $350,000 for a general election campaign ($35,000 for an uncontested race). To qualify, candidates must raise $35,000 to $50,000 in contributions of $1 to $100.

The bill contains a “rescue funds” provision that two federal judges have ruled unconstitutional in Arizona and Connecticut. If a nonparticipating candidate spent 20 percent more than the initial campaign subsidy to qualified candidates, the participating candidates would receive a state check for the exact amount of the difference.

“Candidates who decide not to accept government assistance would be punished under this program for exercising their First Amendment rights,” said CCP President Sean Parnell. “The inclusion of ‘rescue funds’ in the bill is a cruel trick on the taxpayers of West Virginia, who would see their taxpayer dollars fund not only to candidates they oppose but also to pay for a futile defense of provisions that have been struck down by federal judges in three states.”

In January, a federal judge struck down a similar ‘rescue funds’ provision in Arizona’s taxpayer financing program for legislative candidates in McComish v. Bennett. Judge Roslyn Silver ruled that “the regime burdens Plaintiffs’ First Amendment rights, is not supported by a compelling state interest, is not narrowly tailored, and is not the least restrictive alternative.” The state is appealing the decision to the Ninth Circuit Court of Appeals.

In Green Party of Connecticut v. Garfield, federal judge Stefan Underhill ruled Connecticut’s entire taxpayer financing program unconstitutional in Aug. 2009, in part because of its “rescue funds” provision: “I conclude that the trigger provisions place a substantial burden on the exercise of First Amendment rights and the state has failed to advance a compelling state interest that would otherwise justify that burden.” The case was heard on appeal by the Second Circuit Court of Appeals in January. CCP filed an amicus brief at the appellate level.

The Fourth Circuit Court of Appeals opinion in North Carolina Right to Life v. Leake upholding a taxpayer funding system with “rescue funds” in North Carolina was decided in 2008-about two months before the Supreme Court’s opinion in Davis v. Federal Election Commission. In Davis, which cited another appellate court decision holding “rescue funds” unconstitutional, the Court ruled that the government could not attempt to level or equalize campaign funds.

The West Virginia legislation would not limit the ability of outside interest groups to run ads supporting or opposing a candidate-nor could it under the Constitution. In North Carolina, which has tax financing for state Supreme Court candidates, a group called “Fairjudges.net” spent approximately $260,000 in support of four candidates for North Carolina’s Supreme Court in 2006, including three candidates participating in that state’s system of taxpayer funding for judicial candidates. The state Democratic Party, a major funder of Fairjudges.net along with the Service Employees International Union and the state’s plaintiffs’ lawyers association, spent an additional $125,000 independently in support of the candidates, bringing the combined total to $385,000. This was more than was spent by three of the four candidates running, all of whom were elected. These groups, along with traditionally conservative groups like business associations and pro-life groups, cannot be muzzled under this bill.

CCP is representing a local judge in Wisconsin who is challenging that state’s recently-passed tax financing system for state Supreme Court candidates similar to the legislation proposed in West Virginia. The case is Koschnick v. Doyle.

CCP is a nonpartisan, nonprofit organization formed by former Federal Election Commission Chairman Bradley A. Smith to promote and protect the First Amendment political rights of speech, assembly and petition.

Jeff Patch

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