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Abernathy Strategies
RepublicanGazette
Monday, March 31, 2008 "When news breaks, we fix it" Published daily except some days
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All opinions are those of The Republican Gazette and its editor, Gary Abernathy, except letters or commentary signed by others, and do not reflect the views of anyone else, including clients of Abernathy Strategies.
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Desperation
Harman uses poll by firm with longtime ties to Tom Harkin, other Dems, to impugn court
When lawyers for Harman Mining and Hugh Caperton resorted to commissioning and releasing a public opinion poll designed to force Justice Brent Benjamin to recuse himself from their case against Massey Energy, it was viewed as a last-gasp "nuclear option" that many observers thought they'd never see.In essence, it signals that Harman, etc., have thrown in the towel on the recusal issue regarding Benjamin, and have made a conscious decision to step firmly over the line of judicial propriety in exchange for a full-scale public relations offensive.What else was to be gained? The case has already been heard a second time, and justices have likely already cast their votes. Asking Benjamin to step aside in the case at this point, and adding the results of what amounts to little more than a push-poll to buttress their argument, serves no purpose than to generate another round of headlines and try to sully the court even further.But Harman's own "poll," even taken at face value, does nothing to advance its argument. By its own admission, more than 60 percent of West Virginians have never even heard of the Harman-Massy case. And what was apparently its lead question tainted all results that followed, because it asked, "Does the $3.5 million the head of Massey Energy spent to help elect Justice Benjamin to the court create doubt in your mind that he will be fair and impartial, or do you feel he can be fair and impartial?"A real poll -- not a push poll -- would not have tainted the question by mentioning the "$3.5 million" spent by Don Blankenship in the 2004 judicial campaign. It would simply have asked something like, "Are you familiar with Supreme Court Justice Brent Benjamin?" followed by, "Are you familiar with Massey Energy and its CEO Don Blankenship?" followed by, "Do you believe Justice Benjamin can be fair and impartial in regard to cases involving Massey Energy?"In fact, it might also have accurately pointed out in a question that Benjamin has already ruled against Massey in as many as four cases over the past three-plus years.But it did none of that, because it was designed as nothing but a cheap publicity stunt. It is interesting that the Harman lawyers went all the way to Boulder, Colorado to find a polling firm -- Talmey-Drake -- to conduct its survey. Talmey-Drake was "U.S. Sen. Tom Harkin's longtime pollster," according to a 1999 Campaigns & Elections article. Most Talmey-Drake polling seems to be conducted for liberal interest groups and Democrat candidates.It is also interesting that the former director of public affairs polling for Talmey-Drake, Paul Harstad, is now a pollster for the campaign of Democrat presidential candidate Barack Obama, as well as a variety of liberal interest groups and trial lawyers. Before joining Talmey-Drake, Harstad worked for Democrat pollster Peter Hart, so Talmey-Drake knew what they were getting when they hired him.Of course, the other circus coming up is the "recusal hearing" being planned for April 10 by Justice Larry Starcher on the question of whether he should recuse himself from another Massey case involving Wheeling-Pitt. Starcher apparently plans on having the Supreme Court chamber all to himself that day, although the court's official docket calendar does not list any activity occurring on that day. It would be amusing for another justice -- or justices -- to decide to also reserve the courtroom for personal use that day.Lack of clarity
West Virginia's vagueness in law on campaign speech on the verge
of being found unconstitutional
When trial lawyers in the state legislature attempted to create new laws to stifle the free speech of Don Blankenship, they recklessly trampled on the First Amendment and will likely see those laws soon overturned.A lawsuit brought by the Center for Individual Freedom is asking the U.S. District Court for a preliminary injunction to prevent West Virginia's laws from forcing it to reveal the names of its contributors in connection with ads it wants to run regarding the state's judicial system. While full disclosure of contributors has been deemed lawful when directly advocating the election or defeat of a candidate for office, "issue advocacy" campaigns are a different animal. As the CIF's lawsuit points out, West Virginia's new laws were so broadly and hurriedly written that they failed to include language that "is equally precise and objective and also is narrowly tailored," a criteria courts have deemed necessary to uphold restrictions on campaign advocacy.The CIF points out that it does not intend to run ads that expressly urge people to "vote for" or "vote against" any candidate. Short of that, it claims that its disclosure requirements should not be as strict as for parties that do engage in direct "for" and "against" advocacy. The CIF's lawsuit masterfully picks apart West Virginia's code, pointing out several instances where code falls well short of being precise, objective and narrowly tailored.For example the suit points out that:* "West Virginia's prohibition on corporate expenditures and its corporate reporting requirements are unconstitutionally vague, subjective, and untailored."* "The phrase 'for the purpose of influencing' is vague" when prohibiting corporations from giving anything of value "for the purpose of influencing any voter or voters..."* "West Virginia's electioneering communications provisions are unconstitutionally untailored and vague."By peppering the new laws with such vague phrases as "advocating or opposing," "in connection with," and "for the purpose of influencing," the legislative trial lawyers who wrote the new code left themselves wide open for a successful court challenge.The CIF has already been successful in challenging similarly vague laws in Pennsylvania and Louisiana. There is little doubt it will be successful again.In their haste to try to prevent Massey Energy and Blankenship from becoming too influential in state elections, Democrat trial lawyers in the legislature cobbled together laws that are sloppily worded and unable to stand up to free speech challenges. In fact, the CIF lawsuit anticipates the court may well strike down the new laws entirely, noting, "Because the West Virginia legislature purposefully crafted a campaign finance scheme to reach far beyond express advocacy, the Court may well decide that a narrowing construction is not proper and that the statutes must be invalidated." The CIF's lawsuit concludes, "The Center should not be required to curtail its independent speech to avoid the threat of criminal liability under these vague, subjective, and untailored standards. Such curtailment irreparably injures the Center, those who wish to receive its speech, and the public interest in free and open public debate."Disclosure requirements are generally good, but they still must be constitutionally written.Delay in Bresch case raises questions
When West Virginia University said last week it would need at least another two weeks or so to reveal its findings in the Heather Bresch diploma case, it raised a new round of doubts about the ultimate findings.As several observers wondered last week, how complicated can this be? Doesn't it make sense that Ms. Bresch herself would be able to supply plenty of evidence that she indeed earned the degree she claims, such as transcripts or a diploma?The new report last week by the Pittsburgh Post-Gazette regarding a flurry of phone calls after the story broke between Bresch and Craig Walker, chief of staff for WVU President Mike Garrison, also raises serious questions.Jefferson Lincoln Day set April 12
The Jefferson County Lincoln Day Dinner will be held Saturday, April 12, at 6 p.m. (dinner at 7) at Citizens Fire Hall in Charles Town.Tickets are $25 each, and can be reserved by calling 535-6914 or 582-8242.