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March 5, 2010The Honorable Jeffrey KesslerRoom 210W, Building 1State Capitol ComplexCharleston, WV 25305Dear Senator Senator Kessler,I am writing to share conce

s my organization, the Center for Competitive Politics (CCP) hasregarding House Bill 4130, a bill to explore taxpayer funded campaigns for c

didates for theWest Virginia Supreme Court.CCP is a nonpa

isan, nonprofit organization focused on promoting

protecting the FirstAmendment political rights of speech, assembly and petition. It was founded in 2005 by BradleyA. Smith, former member and Chairm

of the Federal Election Commission.

The West Virginia Supreme Cou

of Appeals Public Campaign Fin

cing Pilot Program is

being sold as a vehicle to protect the "impartiality

integrity" of the judiciary and "strengthenpublic confidence" while little, if any, research suggests tax financing schemes achieve thesegoals. Moreover, the bill has serious constitutional flaws that make it unlikely to survive in court.

Programs in Arizona, Connecticut

Maine are similar to HB 4130 in that they offer so-called`rescue funds' for candidates who are opposed by the spending of independent groups or whoface being outspent by opponents who opt not to participate in the taxpayer financing system.

But recent rulings in both Arizona

Connecticut have struck down `rescue fund' provisions as

a violation of the First Amendment,' in line with the U.S. Supreme Cou

's ruling in

Davis v.

Federal Election Commission

that the state cannot provide preferential benefits to somecandidates based on spending of other candidates. The Supreme Court's decision favorably cited

Day v. Holohan,

a 1994 case striking down matching funds in Minnesota's limited taxpayer

financing program for state candidates.

In January, U.S. District Court Judge Rosyln Silver struck down the matching funds in Arizona's Clean ElectionsProgram. She issued a stay with her order, which the Ninth Circuit Court of Appeals extended to allow the programto continue distributing funds until the next hearing on the case, set for April. In Aug. 2009, U.S. District CourtJudge Stefan Underhill struck down the state of Connecticut's entire program of taxpayer financed political

campaigns, focusing on the program's discriminatory impact on minor-party candidates as well as the program's

matching funds provision.

124 West Street South, Ste 201 Alexandria, VA 22314 www.campaignfreedom.org

P: 703.894.6800 F: 703.894.6811

Under the guise of expanding the opportunity of speech, this bill, in fact, restricts it. By offeringa tax financed candidate funds every time an outside group or opposing, non-participatingcandidate uses its resources to speak out against the participating candidate, the state is chilling

the speech of privately funded campaigns and groups. This punishment for free speech is

inconsistent with the securities guaranteed in the First Amendment.Apart from the bill's constitutional concerns, it is unlikely to achieve any of its intended goals.There is no evidence that taxpayer financing schemes decrease the activity and prevalence of interest groups in politics.Judicial elections in North Carolina emphasize this point. In 2006, the group Fairjudges.net

spent

approximately $260,000 in support of four candidates for North Carolina's Supreme Court,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 ServiceEmployees International Union and the state's trial lawyer association, spent an additional$125,000 independently in support of the candidates, bringing the combined total to $385,000.3This was more than was spent by three of the four candidates running, all of whom were

elected.4

Providing taxpayer financing for judicial candidates does not effectively limit the ability of organized interest groups to support favored candidates, either directly or indirectly. Becausesuch programs typically require candidates to gather relatively large numbers of smallcontributions in order to qualify for taxpayer funds, candidates often must turn to either partyorganizations or organized interest groups in order to gather small contributions.This is, in fact, what has happened in both the Arizona program and in New Jersey's failed pilotproject in 2007. The practice of organized interest groups raising contributions for candidates in

Arizona is so widespread that one news report noted that "...special interest groups routinely

collect the necessary number of $5 contributions to help candidates qualify for public funding.

Letter by Bob Hall of Democracy North Carolina to the State Board of Elections, November 2 2006, availablehere: http://www.democracy-nc.org/nc/judicialcampaignreform/FJcomplaint.pdf,information also available at theNorth Carolina State Board of Elections: http://www.sboe.state.nc.usleontent.aspx

?id=22

Ibid

Reported on the web site of the Center for Competitive Politics at:http:/lwww.campaignfreedom.org/blog/detail/north-carolinas-clean-elections-for

judges-a-flop, based on

information drawn from the web site of the North Carolina State Board of Elections (see note 1)

Christian Palmer, "Clean Elections Institute loses national money stream, seeks donations," Dec. 29, 2008,

Arizona

Capitol Times