CHARLESTON, W.Va. -- The West Virginia Supreme Court spent two hours hearing a case Tuesday that could help decide the fate of the court for the foreseeable future.
The case involves a one-year experiment to give public money to Supreme Court candidates to try to reduce the appearance court seats can be bought. With two of the court's five seats on the ballot this year, Republican Allen Loughry is the only candidate participating in the program.
Loughry has already received $400,000 in public money for his campaign. The public financing law, as it stands, would allow Loughry to collect up to $700,000 more in public "rescue" money if his opponents begin to outspend him.
But the state Election Commission has refused to give Loughry the rescue money. The commission cites a U.S. Supreme Court ruling last summer that struck down a similar part of an Arizona law.
Loughry sued the commission to make them release the money.
But, because of the Arizona ruling and other U.S. Supreme Court cases, Justice Thomas McHugh told Loughry's attorneys Tuesday they have to clear a "very high hurdle" before the state Supreme Court would order the release of the rescue funds.
"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," McHugh said.
The nation's high court said attempting to offset private donations with public money unfairly penalizes private donors. The court has also consistently ruled campaign spending is a form of free speech.
One of Loughry's attorneys, Adam Skaggs, argued judicial elections are a different animal than the legislative and executive branch elections dealt with in the other cases. He said judicial elections deserve special considerations to make sure judges unbiased.
"The Supreme Court has not said that is foreclosed," he said.
The Election Commission itself argues it should release the money but is not doing so until it's clear that it legally can do so. That put the commission in the odd position of defending a law it is being sued for not following.
State Senior Deputy Attorney General Silas Taylor is representing the election commission.
On Tuesday, Taylor faced a colleague from Attorney General Darrell McGraw's Office, Managing Deputy Attorney General Barbra Allen.
Allen wrote an advisory opinion last summer that said the West Virginia law was unconstitutional because of the U.S. Supreme Court's ruling. But state lawmakers failed to act on that assessment to do anything to change the law and now, two months before the election, the fate of the Supreme Court race is in the hands of two courts.
Allen said Tuesday the U.S. Supreme Court had left "no glimmer of light" for the state court to allow Loughry to receive matching funds.
Chief Justice Menis Ketchum asked several times if the public financing program was accomplishing its intended goals.
Democrats designed the program as a response to coal operator Don Blankenship's spending in the 2004 Supreme Court race cost Justice Warren McGraw to lose his seat on the court to Republican Brent Benjamin. The Democrat-controlled Legislature passed the program over the objection of Republican lawmakers.
But the tables have turned this year and it would be Democrats who could suffer from the public financing program.
That's because incumbent Justice Robin Davis and Democrat Tish Chafin are spending hundreds of thousands of dollars on their own campaigns. Most of their campaign money comes from their own personal wealth -- just over 80 percent so far for Chafin and nearly 60 percent for Davis -- but they each have received donations from lawyers and others who might have business before the court.
Another incumbent, McHugh, is not running for re-election.
Republicans have accused Democrats of trying to "muzzle" Loughry.