Political Ads Aired in D.C. Target W.Va. Audience

Carol Morello
The Washington Post

November 1, 2004

Television ads that have been called the "nastiest in the nation" this political season have started running in the Washington market, but they're for a race in which only a tiny percentage of viewers will get to cast a vote.

An independent group that has been funded largely by mining and business interests has purchased the ads to attack West Virginia Supreme Court Justice Warren McGraw, a liberal Democrat who spent much of his political career pushing for the taxation of coal and a ban on strip mining. McGraw has been on the West Virginia Supreme Court since 1998, and before then he served five terms in the state legislature.

He is being challenged by Republican Brent Benjamin, a Charleston lawyer who has devoted much of his legal career in private practice defending corporate clients in civil lawsuits and workers' compensation claims. West Virginia polls suggest the electorate is split, with a third backing each candidate and the rest undecided.

The ads attacking McGraw that have been running on TV stations in the nation's capital are designed to reach voters in the eastern panhandle of West Virginia. A leader of the group that purchased the ads said yesterday that they are largely intended to reach voters around Martinsburg who tend to watch Washington stations.

McGraw's campaign said the ads are bound to hurt the incumbent among voters who know him least.

"The eastern panhandle of West Virginia is not traditionally like the rest of West Virginia," said Andy Gallagher, a campaign spokesman for McGraw. "A lot of people there have moved out from Washington. They've created a Washington suburb. A lot of Republicans are out there. They're separate from the politics of Charleston. Many don't know who the McGraw family is."

McGraw's older brother is West Virginia Attorney General Darrell V. McGraw Jr. (D).

Steve Cohen, a campaign spokesman for Benjamin, said advertising for a West Virginia race in the pricey Washington market is not unprecedented, but in the past it has been for gubernatorial and congressional campaigns. "This is a state that's had Jay Rockefeller on the ballot for 30 years," he said. "But it's rare that a West Virginia candidate would have the funds to buy in a market as expensive as Washington or Pittsburgh."

The core of Benjamin's campaign against McGraw is Benjamin's claim that he is an activist judge who mollycoddles criminals and endangers the welfare of children. Benjamin has been particularly critical of a 3 to 2 unsigned court opinion in February in which McGraw joined the majority in freeing a convicted sex offender. The probation plan the court approved for Tony D. Arbaugh Jr. recommended he work as a janitor in a Catholic high school, although the school refused to hire him.

Arbaugh had been on probation since 1977 for sexually abusing a half brother. A lower court had returned him to prison for probation violations including drug and alcohol use. The three-justice majority voted to give him another chance because Arbaugh himself had been a victim of child sexual abuse, and he was considered unlikely to repeat a sex crime.

In one of the ads, a narrator discusses the case, and visuals show shaded profiles of children.

"Either McGraw signed the order knowing Arbaugh, a convicted child sex offender, was going to a school to work among children, or he didn't read the case and signed it," Cohen said.

McGraw has said his position was distorted. He agreed with a concurring opinion that did not specify a plan for Arbaugh to be a school janitor.

Benjamin's campaign, which Cohen said had raised and spent about $600,000 so far, has not paid for most of the ads attacking McGraw.

Most have been put on the air by special interest groups, particularly one called "And For the Sake of the Kids." The group's president is Carl Hubbard, vice president of a coal equipment dealer. Almost $1.7 million of the $2.5 million the group has raised came from one man -- Don L. Blankenship, chairman of Massey Energy Co., according to published news reports in West Virginia that cited records. "I wanted the satisfaction of knowing I had done the right thing," Blankenship recently told the Charleston (W.Va.) Daily Mail.

"To fund this sort of effort to educate the public about the dangers of continuing with Justice McGraw on the court, we were able to obtain funding from the coal industry," said Daniel McGraw, a co- founder of "And For the Sake of the Kids." Daniel McGraw said he is not related to the incumbent justice.

The Brennan Center for Justice, a nonpartisan group at New York University's School of Law, called the anti-McGraw ads the "nastiest in the nation."

Gallagher said the McGraw campaign has raised about $300,000 and is struggling to compete against the expensive ad campaign.

McGraw has depended on grass-roots support and a name that runs deep in West Virginia. A former civil rights lawyer in the Justice Department during the early days of desegregation, McGraw served five terms in the state legislature. He ran for the state Senate on an anti-strip-mining stand, and spent four years as Senate president.

"The only way we're still ahead is because of the McGraw name," Gallagher said. "Anybody else would have been plowed under."