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Tuesday, July 23, 2024 | Back issues
Courthouse News Service Courthouse News Service

Parts of West Virginia Election Law Revived

(CN) - The 4th Circuit revived portions of West Virginia's campaign-finance law that sets reporting and disclaimer requirements for political backers.

West Virginia lawmakers strengthened reporting and disclaimer requirements as it faced an "explosion of expenditures by groups independent of candidates" in 2004.

The changes drew federal complaints in 2008 from the Center for Individual Freedom Inc., a group that concerns itself with litigation reform and judicial decision-making; West Virginians for Life; and Zane Lawhorn, a West Virginia resident who said he wanted to receive communications from the anti-abortion group.

After the groups won preliminary injunctions, West Virginia lawmakers amended the law for a second time in 2010. These changes would have allowed West Virginia to prosecute groups for violating the enjoined portions of the statutory scheme while the injunctions were in effect.

Facing motions for summary judgment, U.S. District Judge Thomas Johnston struck down some provisions of the law and upheld others. He also prohibited the newly enabled prosecutions by dissolving the 2008 injunctions.

Johnston had applied the "fatally vague" label to a provision of the law that defines "expressly advocating" as "any communication that ... is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

Inclusion of periodicals in the law's definition of "electioneering communication" also rendered the definition overbroad, Johnston found.

The ensuing appeal implicated "the delicate balance between protecting political speech and informing the electorate about the organizations that bankroll modern elections," according to a Jan. 18 decision from the 4th Circuit.

The Richmond, Va.-based federal appeals court agreed that the "electioneering communication" definition could not include any "newspaper, magazine or other periodical." The definition must also exempt grassroots lobbying, according to the 39-page ruling.

Though the Center for Individual Freedom challenged the bona fide news accounts exemption, the court dismissed this protest for lack of standing.

Another section of the dense decision upheld the dissolved injunctions, which blocked prosecutions for violations under the amended law.

Some of Johnston's ruling failed to survive the appeal.

"We reverse the district court's decision with respect to (1) its conclusion that subsection (C) of the 'expressly advocating' definition is unconstitutional; (2) its choice to uphold the 'electioneering communication' definition's § 501(c)(3) exemption; and (3) its application of an 'earmarked funds' limiting construction to the reporting requirement for electioneering communications," Judge Henry Floyd wrote for a three-member panel.

The decision makes reference to McConnell v. FEC, a 2003 decision in which the Supreme Court upheld a similar statute that imposed reporting requirements on "[e]very person who makes a disbursement for the direct costs of producing and airing electioneering communications."

"We find that McConnell controls this case and necessitates reversing the district court's conclusion that West Virginia's electioneering communication reporting requirements cannot survive exacting scrutiny," Floyd wrote.

The defendants in the joined cases were West Virginia Secretary of State Natalie Tennant, prosecuting attorneys for Mercer County, W. Va., and state election commissioners Gary Collias, William Renzelli, Robert Rupp and Cindy Smith.

The West Virginia Education Association, the West Virginia AFL-CIO, Bob Bastress, Margaret Workman, and Menis Elbert Ketchum intervened as defendants.

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