COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 311
(By Senators Kessler, Unger, Foster, Snyder, McCabe and White)
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[Originating in the Committee on the Judiciary;
reported March 27, 2009.]
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A BILL to amend and reenact §3-1A-1, §3-1A-4 and §3-1A-5 of the
Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new article, designated §3-12-1,
§3-12-2, §3-12-3, §3-12-4, §3-12-5, §3-12-6, §3-12-7, §3-12-8,
§3-12-9, §3-12-10, §3-12-11, §3-12-12, §3-12-13, §3-12-14,
§3-12-15 and §3-12-16, all relating to creating the West
Virginia Supreme Court of Appeals Public Campaign Financing
Pilot Program; giving additional duties and per diem pay to
the State Election Commission; authorizing State Election
Commission utilize video, telephone and internet conferencing;
providing alterative campaign financing option for candidates
for the West Virginia Supreme Court of Appeals in 2010 and
2012 through public funds; setting forth short title and
certain legislative findings and declarations; defining terms;
specifying that the provisions of the act are applicable to
candidates for the West Virginia Supreme Court of Appeals in
the 2010 and 2012 general and primary elections; establishing the "Supreme Court of Appeals Public Campaign Financing Fund
and sources of revenue for the fund; authorizing transfer of
$1 million a year from the Treasurer's Unclaimed Property
Trust Fund to the fund for four years; requiring an applicant
for public campaign funding to complete a declaration of
intent and setting forth the manner in which an application
for funding may be made; setting forth eligibility criteria
for qualifying party and independent candidates; allowing
participating candidates to raise from private sources and
spend exploratory contributions; requiring candidates seeking
public campaign funds to collect a required number of
qualifying contributions; requiring candidates to provide
detailed receipts to contributors and to the State Election
Commission for exploratory and qualifying contributions;
requiring participating candidates to comply with all
provisions of the act; requiring the State Election Commission
to certify eligible candidates and setting forth the procedure
for certification; providing for distribution of funds from
the Public Campaign Financing Fund to qualified candidates for
funding election campaigns; specifying the amount of funds
available for each candidate and when the funds become
available; setting forth restrictions on participating
candidates' contributions and spending; prohibiting
participating candidates from accepting private contributions
other than as specifically set forth in the act; prohibiting
the use of personal funds for certain purposes; permitting qualified candidates to raise funds from private sources when
there is insufficient money in the Public Campaign Financing
Fund to make a complete distribution to all qualified
candidates; requiring certain disclosures; requiring
candidates to keep records and report to the State Election
Commission; providing for rescue funds when independent
expenditures or opponent expenditures exceed certain limits;
setting forth certain duties of the State Election Commission
and Secretary of State; providing for the deposit of certain
revenue into the fund; requiring repayment of excessive
expenditures by candidates; and providing both civil and
criminal penalties for violations of the act.
Be it enacted by the Legislature of West Virginia:
That §3-1A-1, §3-1A-4 and §3-1A-5 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new article, designated
§3-12-1, §3-12-2, §3-12-3, §3-12-4, §3-12-5, §3-12-6, §3-12-7,
§3-12-8, §3-12-9, §3-12-10, §3-12-11, §3-12-12, §3-12-13, §3-12-14,
§3-12-15 and §3-12-16, all to read as follows:
ARTICLE 1A. STATE ELECTION COMMISSION AND SECRETARY OF STATE.
§3-1A-1. Election commission continued; composition; chairman;
traveling expense.
The "State Election Commission," heretofore created, is hereby
continued and, on and after the effective date of this section,
shall be composed of the Secretary of State, and four persons appointed by the Governor, by and with the advice and consent of
the Senate. The commission shall, from this membership elect a
chairman for a term of two years. Each member of the commission
shall be
reimbursed for all reasonable and necessary expenses
actually incurred in paid the per diem and expense reimbursement
established for the Legislature in section seven, article two-a,
chapter four of this code for the performance of his
or her duties
as a member of the commission.
§3-1A-4. Office and meetings of commission.
(a) The office and place of meeting of the commission shall be
the office of the Secretary of State in the state capitol. The
commission may also conduct meetings via video, telephone or
internet conferencing
.
(b) The commission shall hold such meetings as may be called
by the chairman, the Governor or the Secretary of State.
§3-1A-5. Powers and duties of commission; legislative rules.
(a) The commission shall have the power and duty to approve or
disapprove applications for approval of any voting machine as
provided in section seven, article four of this chapter.
(b) The commission also shall serve as a body advisory to the
Secretary of State, and, as such, shall have the following powers
and duties:
(1) To recommend policies and practices pertaining to the
registration of voters and the conduct of elections generally;
(2) To review the work of the office of Secretary of State
pertaining to the duties of that office with respect to elections, and for this purpose to have access at reasonable times to
pertinent records, books, papers and documents;
(3) To consider and study the election practices of other
jurisdictions, with a view to determining the techniques used in
eliminating fraud in elections and in simplifying election
procedures;
(4) To advise or make recommendations to the Governor relative
to election practices and policy in the state; and
(5) To advise the Secretary of State on carrying out the
duties assigned to the Secretary of State under the 2012 West
Virginia Supreme Court of Appeals Public Campaign Financing Pilot
Program, in article twelve of this chapter;
(6) Carry out the duties assigned to the commission by the
2012 West Virginia Supreme Court of Appeals Public Campaign
Financing Pilot Program, in article twelve of this chapter;
(7) To keep minutes of the transactions of each meeting of the
commission, which shall be public records and filed with the
Secretary of State.
(c) It shall be the commission's further duty to prepare and
distribute in its name, within available appropriations and upon
the recommendation of the Secretary of State, nonpartisan
educational material to inform voters of the importance of voting,
to encourage voters to vote, to inform voters of election laws and
procedures, and to inform voters of the effect of any public
question, constitutional amendment or bond issue that is to be
voted upon by all the voters of the state and that has been authorized to be placed upon the ballot by the Legislature, and
manuals to assist county commissions, ballot commissioners, circuit
and county clerks and other election officials in the proper
performance of their duties in the conduct of elections.
(d) The commission shall promulgate such legislative rules, in
accordance with the provisions of chapter twenty-nine-a of this
code, as may be necessary to standardize and make effective the
administration of the provisions of article eight of this chapter,
and may promulgate such other rules, in accordance with the
provisions of chapter twenty-nine-a of this code, relating to the
conduct and administration of elections as the commission may
determine to be advisable. All rules required or permitted to be
promulgated by the commission by the provisions of this section
shall be submitted on or before the first day of August, one
thousand nine hundred ninety-five, to the Legislature for review by
the legislative rule-making review committee and approval by the
Legislature.
ARTICLE 12.WEST VIRGINIA SUPREME COURT PUBLIC CAMPAIGN
FINANCING PILOT PROGRAM.
§3-12-1. Short title.
This article shall be known as the "West Virginia Supreme
Court of Appeals Public Campaign Financing Pilot Program". The
pilot program begins with the exploratory period for the 2010
primary election and continues through the general election in
2012.
§3-12-2. Legislative findings and declarations.
(a) The Legislature hereby finds and declares that current
election finance laws relating to the state's highest court:
(1) May allow individuals and committees who contribute large
amounts of money to have an undue influence on the judicial
process;
(2) May diminish the free speech rights of those candidates
and voters who are not wealthy because the political process is
influenced by individuals and committees who can afford to spend
large amounts of money on political communications;
(3) May erode public confidence in the democratic process as
it relates to the Supreme Court of Appeals;
(4) May allow Justices to accept large campaign contributions
from private interests who may have cases before the court.
(b) The Legislature further finds and declares that the
creation of a pilot public campaign financing program:
(1) Will help restore the public confidence in our elected
justices and restoring this confidence is critical to increasing
public participation and to the success of our democracy;
(2) Will provide qualified candidates for the supreme court
with resources with which to communicate with voters, reduces the
burden of fund raising and allows more time to be spent with the
voters.
(3) Will alleviate the need for large private contributions
thereby helping maintain judicial integrity and reduce corruption
or the appearance of corruption in our judicial system.
(4) Will protect the public fisc by raising necessary funds
from a wide range of citizens who use the courts and all attorneys
licensed to practice law in this State and certain general revenues
and other means.
§3-12-3. Definitions.
As used in this article, the following terms and phrases have
the following meanings:
(1)
"Candidate's committee" means a political committee
established with the approval of or in cooperation with a candidate
or a prospective candidate to explore the possibilities of seeking
a particular office or to support or aid his or her nomination or
election to an office in an election cycle. If a candidate directs
or influences the activities of more than one active committee in
a current campaign, those committees shall be considered one
committee for the purpose of contribution limits.
(2) "Certified candidate" means an individual seeking
nomination or election to the West Virginia Supreme Court of
Appeals who has been certified in accordance with section ten of
this article as having met all the requirements for receiving
public campaign financing from the fund.
(3) "Clearly identified" means that the name, nickname,
photograph, drawing or other depiction of the candidate appears, or
the identity of the candidate is apparent by an unambiguous
reference including, for instance, "your senator" or "the
incumbent", or through an unambiguous reference to his or her
status as a candidate including, for instance, "the democratic candidate for State Supreme Court of Appeals."
(4) "Contribution" means a gift subscription, assessment,
payment for services, dues, advance, donation, pledge, contract,
agreement, forbearance or promise of money or other tangible thing
of value, whether or not conditional or legally enforceable, or a
transfer of money or other tangible thing of value to a person,
made for the purpose of influencing the nomination, election or
defeat of a candidate.
(A) An offer or tender of a contribution is not a contribution
if expressly and unconditionally rejected or returned.
(B) A contribution does not include volunteer personal
services provided without compensation or services or property
provided to an elected official by the state or a political
subdivision to defray the costs of meeting or communicating with
constituents while the official is performing the duties of his or
her office.
(5) "Excess expenditure" means an amount of money spent or
obligated to be spent to influence the nomination or election of a
nonparticipating candidate or the defeat of a certified candidate
for the same office in excess of the public campaign funds
available to the certified candidate under section eleven of this
article.
(6) "Exploratory contribution" means a contribution of no more
than $1000 made by an individual adult, including a participating
candidate and members of his or her immediate family, during the
exploratory period. Exploratory contributions may not exceed $20,000 in the aggregate.
(7) "Exploratory period" means the period during which a
participating candidate is permitted to raise and spend exploratory
contributions to examine his or her chances of election and to
qualify for public campaign financing under this article. The
exploratory period begins on January 1 the year before the primary
election in which the candidate may run for Justice of the Supreme
Court of Appeals and ends on the last day Saturday of January of
the election year.
(8) "Financial agent" means any person acting for and by
himself or herself, or any two or more natural persons acting
together or cooperating in a financial way to aid or take part in
the nomination or election of any political candidate, or to aid or
promote the success or defeat of any candidate.
(9) "Fund" means the Supreme Court of Appeals Public Campaign
Financing Fund created by section five of this article.
(10) "General election campaign period" means the period
beginning the day after the primary election and ending on the day
of the general election.
(11) "Independent expenditure" means an expenditure or
obligation made by a person other than a candidate or candidate's
committee in support of or opposition to the nomination or election
of one or more clearly identified candidates and without
consultation or coordination with or at the request or suggestion
of the candidate whose nomination or election the expenditure
supports or opposes or the candidate's agent. Supporting or opposing the nomination or election of a clearly identified
candidate includes supporting or opposing the candidates of a
clearly identified political party. An expenditure which does not
meet the criteria for an independent expenditure established in
this subsection is considered a contribution.
(12) "Immediate family" or "Immediate family members" means
the spouse, parents, step-parents, siblings and children of the
participating candidate who are registered voters in this state.
(13) "Membership organization" means a group that grants bona
fide rights and privileges, including the right to vote, to elect
officers or directors, and the ability to hold office, to its
members, and which uses a majority of its membership dues for
purposes other than political purposes. "Membership organization"
does not include organizations that grant membership upon receiving
a contribution.
(14) "Nonparticipating candidate" means a candidate who is:
(A) Seeking election to the Supreme Court of Appeals;
(B) Is neither certified nor attempting to be certified to
receive public campaign financing from the fund; and
(C) Has an opponent who is a participating or certified
candidate.
(15) "Participating candidate" means a candidate seeking
election to the Supreme Court of Appeals and who is attempting to
be certified in accordance with section ten of this article to
receive public campaign financing from the fund.
(16) "Person" means an individual, partnership, committee, association, and any other organization or group of individuals.
(17) "Primary election campaign period" means the period
beginning on the first day of the primary election filing period
and ending on the day of the subsequent primary election.
(18) "Private contribution" means a contribution from any
source other than the fund except:
(A) Payments by a membership organization for the cost of
communicating to its members;
(B) Payments by a membership organization for the purpose of
facilitating the making of qualifying contributions;
(C) Volunteer activity, including the payment of incidental
expenses by volunteers; and
(D) Voter registration and get-out-the-vote activities
conducted by nonpartisan individuals and organizations or which are
not intended to influence the election or defeat a particular
candidate.
(19) "Qualifying contribution" means a contribution of not
less than $10 nor more than $100 in the form of cash or a check or
money order, made payable to a participating candidate or the
candidate's committee, or in the form of an electronic payment or
debit or credit card payment, received during the qualifying
period, and which is:
(A) Made by a registered voter and resident of this state;
(B) Acknowledged by a written receipt; and
(C) Gathered by the participating candidate or on behalf of
the candidate by an unpaid volunteer with the candidate's knowledge and consent.
(20) "Qualifying period" means the period during which
participating candidates are permitted to collect qualifying
contributions in order to qualify to receive public campaign
financing.
(A) For candidates seeking nomination on the primary election
ballot, the qualifying period begins on September 1 preceding the
election year and ends on the last Saturday in January of the
election year.
(B) For candidates, other than those nominated during the
primary election, seeking to be placed on the general election
ballot, the qualifying period begins on June 1 of the election year
and ends on October 1 of the election year.
(21) "Rescue funds" means the additional public financing
funds distributed to a certified candidate in response to excess
expenditures or obligations, made by a nonparticipating candidate
or from independent expenditures or a combination thereof, which
exceed, in the aggregate, twenty percent of the initial funding for
a certified candidate.
§3-12-4. Alternative campaign financing option.
This article establishes an alternative public financing
option available to candidates for election to the office of
Justice of the West Virginia Supreme Court of Appeals for the 2010
and 2012 primary and general elections. Candidates electing the
alternative campaign financing option must comply with all other
applicable election and campaign laws and rules.
§3-12-5. Public Campaign Financing Fund, nature and purposes of
the fund.
There is hereby established in the State Treasury a special
revenue fund to be known as the "Supreme Court of Appeals Public
Campaign Financing Fund" for the dual purposes of providing public
financing for the election campaigns of certified candidates under
the provisions of this article and of paying the administrative and
enforcement costs of the Secretary of State and State Election
Commission related to this article. All moneys collected under the
provisions of this article shall be deposited in the fund, which
shall be administered by the State Election Commission. Funds may
also be accepted from any gift, grant, bequest, endowment fund or
donation which may be received by the State Election Commission
from any person, firm, foundation or corporation. Any balance,
including occurred interest or other earnings in the fund at the
end of any fiscal year do not revert to the General Revenue Fund,
but shall remain in the fund. Expenditures may be made from the
fund only for the purposes set forth in this article and in
accordance with the provisions of article three, chapter twelve of
this code and upon fulfillment of the provisions of article two,
chapter eleven-b of this code.
§3-12-6. Sources of revenue for the fund.
Revenue from the following sources shall be deposited in the
fund:
(1) All exploratory and qualifying contributions in excess of the established maximums.
(2) Money returned by participating candidates who fail to
comply with the provisions of this article.
(3) Unspent or unobligated moneys allotted to qualified
candidates and remaining unspent or unobligated on the date of the
general election for which the money was distributed.
(4) If a candidate loses, all remaining unspent or unobligated
moneys after the primary election.
(5) Civil penalties levied by the State Election Commission
against candidates for violations of this article.
(5) Civil penalties levied by the Secretary fo State pursuant
to section seven, article eight of this chapter.
(6) Voluntary donations made directly to the fund.
(7) Interest income.
(8) Revenue from a tax checkoff program, to be developed by
the Tax Commissioner, allowing a resident of the state to designate
on his or her income tax return up to $6,000 of taxes for deposit
into the fund. If a husband and wife file a joint return, each
spouse may designate up to $6,000 for deposit into the fund. All
amounts so designated shall be deducted from the taxpayer income
tax refund and credited to the Supreme Court of Appeals Public
Campaign Financing Fund.
(9) On or before July 1, 2009, and for three successive years
thereafter, the unclaimed property administrator of the State
Treasurer's Office shall transfer the amount of $1 million from the
Unclaimed Property Trust Fund to the fund created by this article.
(10) Money appropriated to the fund.
(11) Beginning in fiscal year 2009-2010 The West Virginia
State Bar shall assess every attorney licensed to practice law in
West Virginia a fee for the fair administration of justice to be
deposited into the "Supreme Court of Appeals Public Campaign
Financing Fund" as follows:
(A) Attorneys licensed to practice law for one to three fiscal
years, $50;
(B) Attorneys licensed to practice law for more than three
fiscal years, $75;
(C) Attorneys who are licensed to practice law but are on
inactive status, $65.
All funds obligated or remitted to the fund shall be collected
by the West Virginia State Bar and transmitted to the West Virginia
State Treasurer to be deposited in the "West Virginia Supreme Court
of Appeals Public Campaign Financing Fund".
(12) There is hereby assessed a fair administration of justice
fee of $100 on each appeal and petition filed in the Supreme Court
of Appeals in a civil case, except domestic violence instituted on
and after the effective date of this act. No fee may be charged on
any appeal or petition filed in forma pauperis. The clerk of the
supreme court shall collect the fee at the time any such appeal or
petition is filed and shall remit the fees collected each month to
the West Virginia State Treasurer to be deposited in the "West
Virginia Supreme Court of Appeals Public Campaign Financing Fund".
(13) There is hereby assessed a fair administration of justice fee of $20 on each civil action filed in circuit court, except
class actions and domestic relations, instituted under the rules of
civil procedure, any statutory summary proceeding, any
extraordinary remedy filed, and the docketing of civil appeals to
circuit court or any other action, cause, suit or proceeding
instituted on and after the effective date of this act. No fee may
be charged on any such action filed in forma pauperis. The clerk
of the circuit court shall collect the fee at the time any such
action is filed and shall remit the fees collected each month to
the West Virginia State Treasurer to be deposited in the "West
Virginia Supreme Court of Appeals Public Campaign Financing Fund".
(14) There is hereby assessed a fair administration of justice
fee of $20 on each party in a class action lawsuit filed in circuit
court at the time the case is settled or judgment rendered. No fee
may be charged on any such action filed in forma pauperis. The fee
shall be paid to the clerk of the circuit court at the time of
settlement or when judgment is rendered and shall be taxed as a
cost to the non-prevailing party. The clerk shall remit the fees
collected each month to the West Virginia State Treasurer to be
deposited in the "West Virginia Supreme Court of Appeals Public
Campaign Financing Fund".
(15) There is hereby assessed a fair administration of justice
fee of $20 on each plaintiff in a divorce action filed in family
court at the time the case is filed. No fee may be charged on any
such action filed in forma pauperis. The fee shall be paid to the
clerk of the family court at the time the case if filed. The clerk shall remit the fees collected each month to the West Virginia
State Treasurer to be deposited in the "West Virginia Supreme Court
of Appeals Public Campaign Financing Fund".
(16) There is hereby assessed a fair administration of justice
fee of $10 on each plaintiff in a civil action filed in magistrate
court at the time the case is filed. No fee may be charged on any
such action filed in forma pauperis. The fee shall be paid to the
clerk of the magistrate court at the time of settlement or when
judgment is rendered. The clerk shall remit the fees collected
each month to the West Virginia State Treasurer to be deposited in
the "West Virginia Supreme Court of Appeals Public Campaign
Financing Fund".
§3-12-7. Declaration of intent.
(a) A candidate desiring to receive campaign financing from
the fund must first file a declaration of intent to seek
certification as a participating candidate for West Virginia
Supreme Court of Appeals in 2010 or 2012 before the end of the
qualifying period and prior to collecting any qualifying
contributions. The declaration shall be on a form prescribed by
the State Election Commission and shall contain a statement that
the candidate is qualified to be placed on the ballot, and, if
elected, to hold the office sought and has complied with and will
continue to comply with all requirements of this article, including
contribution and expenditure restrictions. Contributions made
prior to the filing of the declaration of intent are not qualifying
contributions.
(b)
The declaration shall also include a promise or vow:
(1) that the candidate will contemporaneously disavow and
repudiate any statement made by a person or organization making
independent expenditures in support of or in opposition to the
nomination or election of the candidate or any other candidate
seeking election to the West Virginia Supreme Court of Appeals in
2010 or 2012; and
(2) that the candidate will not use or permit the use of
character defamation, whispering campaigns, libel, slander or
scurrilous attacks on any candidate or his or her family.
§3-12-8. Exploratory period; contributions; expenditures.
(a) A participating candidate or his or her committee may not
accept, spend or obligate exploratory contributions, exceeding
$20,000 in the aggregate. The maximum individual exploratory
contribution which may be accepted from any person including
immediate family members is $1,000. A participating candidate may
contribute or obligate up to $1,000 of his or her own money for
exploratory purposes. Any exploratory contributions in excess of
$20,000 shall be sent to the Election Commission for deposit in the
fund.
(b) Every exploratory contribution must be acknowledged by a
written receipt. Receipts for exploratory contributions of $25 or
more shall include the contributor's signature, printed name, street
address and zip code, telephone number, occupation and name of
employer. Receipts for exploratory
contributions of less than $25
shall contain, at a minimum, the contributor's signature, printed name and address. Contributions which are not acknowledged by a
proper receipt do not qualify as exploratory contributions.
(c) A contribution from one person may not be made in the name
of another person.
(d) At the end of each month a participating or certified
candidate or his or her financial agent shall report all exploratory
contributions and expenditures and obligations along with all
receipts for contributions received that month to the Secretary of
State. If the candidate decides not to run for office all unspent
or unobligated exploratory contributions shall be sent to the State
Election Commission for deposit in the fund. If the candidate
decides to run for office as a nonparticipating candidate the
exploratory contributions shall be used in accordance with articles
eight and twelve of this chapter.
§3-12-9. Qualifying contributions.
(a) A participating candidate or his or her committee may not
accept more than one qualifying contribution from a single
individual. A qualifying contributition may not be less than $10
nor more than $100. A participating candidate shall collect
qualifying contributions which in the aggregate are not less than
$35,000 nor more than $50,000. Qualifying contributions in excess
of $50,000 shall be sent to the Election Commission for deposit in
the fund.
(b) Every qualifying contribution must be acknowledged by a
written receipt that includes:
(1)The printed name of the participating candidate on whose behalf the contribution is made and the signature of the person who
collected the contribution for the candidate or his or her
committee;
(2) For qualifying contributions of $25 or more, the
contributor's signature, printed name, street address and zip code,
telephone number, occupation an name of employer. For qualifying
contributions of less than $25, the contributors's signature,
printed name and address.
(3) A statement above the contributor's signature that:
(A) The contributor understands the purpose of the contribution
is to assist the participating candidate in obtaining public
campaign financing;
(B) The contribution was made without coercion;
(C) The contributor has not been reimbursed, received or
promised anything of value for making the contribution; and
(D) The individual soliciting the contribution on behalf of the
participating candidate has not been reimbursed, received or
promised anything of value for the services.
(4) One copy of the receipt is to be given to the contributor,
one copy is to be retained by the candidate and one copy is to be
sent by the candidate to the Secretary of State. A contribution
which is not acknowledged by a written receipt in the form required
by this subsection is not a qualifying contribution.
(a) During the qualifying period, a participating candidate or
his or her committee must obtain at least five hundred qualifying
contributions. A minimum of ten percent of the qualifying contributions must be from each of the state's congressional
districts.
(b) A participating candidate and each member of the
candidate's immediate family who is a registered voter in this state
may make one qualifying contribution. A participating candidate may
not use any other personal funds to satisfy the qualifying
contributions requirements.
(c) A participating candidate may not reimburse, give or
promise anything of value in exchange for a qualifying contribution.
(d) At the end of each month a participating or certified
candidate or his or her financial agent or committee shall report
all qualifying contributions and expenditures and obligations along
with all receipts for contributions received that month to the
Secretary of State. If the candidate decides not to run for office
all unspent or unobligated qualifying contributions shall be sent
to the State Election Commission for deposit in the fund. If the
candidate decides to run for office as a nonparticipating candidate
the qualifying contributions shall be used in accordance with
articles eight and twelve of this chapter.
(e) All qualifying contributions collected and all expenditures
by a participating candidate or his or her committee must be
reported to the Secretary of State no later than forty-eight hours
after the close of the qualifying period.
§3-12-10. Certification of candidates.
(a) In order to be certified, a participating candidate shall
apply to the State Election Commission for public campaign financing from the fund and file a sworn statement that he or she has complied
and will comply with all requirements of this article throughout the
applicable campaign.
(b) Upon receipt of a notice from the Secretary of State that
a participating candidate has received the required number of
qualifying contributions, the State Election Commission shall
determine whether the candidate or candidate's committee:
(1) Has signed and filed a declaration of intent as required
by section seven of this article;
(2) Has obtained the required number of qualifying
contributions as required by section nine of this article;
(3) Has not accepted other contributions, except for
exploratory and qualifying contributions, and otherwise complied
with the contribution restrictions of this article;
(4) Is eligible to appear on the primary or general election
ballot; and
(5) Has met all other requirements of this article.
(c) A candidate who, personally or through his or her
committee, has accepted contributions or expended funds from private
donations with regard to the elections to be held in 2010 or 2012
may nevertheless be certified under this article if the candidate
or his or her committee returns the contributions which were
accepted but not expended or obligated, to the contributor or
submits the contributions to the State Election Commission for
deposit into the fund within ninety days of the before the effective
date of this article.
(d) The State Election Commission shall process applications
in the order they are received and shall verify a participating
candidate's compliance with the requirements of subsection (b) by
using the verification and sampling techniques approved by the State
Election Commission.
(e) The State Election Commission shall determine a
participating candidate's eligibility to receive public campaign
financing no later than three business days after the candidate or
the candidate's committee makes his or her final report of
qualifying contributions or, if a challenge is filed under
subsection (h) of this section, no later than six business days
after the candidate or the candidate's committee makes his or her
final report of qualifying contributions. A certified candidate
shall comply with the provisions of this article through the general
election campaign period.
(f) If the State Election Commission determines that a
participating candidate is eligible to receive public campaign
financing under the provisions of subsection (b), the State Election
Commission shall within forty-eight hours issue a check for or
transfer to the candidate's campaign depository account an amount
equal to the initial public financing benefit for which the
candidate qualifies under section eleven of this article, less the
candidates qualifying contributions, and shall notify all other
candidates for the same office of its determination.
(g) If the candidate desires to receive public financing
benefits by electronic transfer, the candidate shall include in his or her application sufficient information and authorization for the
State Treasurer to transfer payments to his or her campaign
depository account.
(h) Any person may challenge the validity of any contribution
listed by a participating candidate by filing a written challenge
with the State Election Commission setting forth any reason why the
contribution should not be accepted as a qualifying contribution.
If a contribution is challenged under this subsection, the State
Election Commission shall decide the validity of the challenge no
later than the end of the next business day after the day that the
challenge is filed, unless the State Election Commission determines
that the candidate whose contribution is challenged has sufficient
qualifying contributions to be certified as a candidate under this
section without considering the challenge. Within five business
days of a challenge, the candidate or candidate's committee who
listed any contribution that is the subject of a challenge may file
a report with the State Election Commission of an additional
contribution collected pursuant to section nine of this article for
consideration as a qualifying contribution.
(i) A candidate's right to receive public campaign financing
may be revoked by the State Election Commission if the candidate
violates any of the provisions of this article. A certified
candidate who has been found to have violated the provisions of this
article shall repay all moneys received from the fund to the State
Election Commission.
(j) The determination of any issue before the State Election Commission is the final administrative determination. Any person
adversely affected by a decision of the State Election Commission
under the provisions of this article may appeal that decision to the
Circuit Court of Kanawha County.
(k) A candidate may withdraw from being a certified candidate
and become a nonparticipating candidate at anytime with the approval
of the State Election Commission. Any candidate seeking to withdraw
shall file a written request with the State Election Commission,
which shall consider requests on a case by case basis. No certified
candidate may be permitted to withdraw until he or she has repaid
all moneys received from the fund: Provided, That the State
Election Commission may, in exceptional circumstances, waive the
repayment requirement. The State Election Commission may assess a
penalty not to exceed $10,000 against any candidate who withdraws
without approval.
§3-12-11. Schedule and amount of 2012 Supreme Court of Appeals
Public Campaign Financing Fund payments; rescue
funds.
(a) The State Election Commission shall make 2010 and 2012
Supreme Court of Appeals Public Campaign Financing Fund payments for
the primary election campaign period available to a certified
candidate within forty-eight hours after the date on which the
candidate is certified.
(1) In a contested primary election, a certified candidate may
receive initial campaign financing from the fund in an amount not to exceed $200,000.
(2) In an uncontested primary election, a certified candidate
may receive campaign financing from the fund equal to twenty-five
percent of the amount available to a candidate in a contested
primary election.
(b) The State Election Commission shall make 2010 and 2012
Supreme Court Public Campaign Financing Fund payments for the
general election campaign period available to a certified candidate
within forty-eight hours after the primary election results are
certified by the Secretary of State.
(1) In a contested general election, a certified candidate who
won his or her party's nomination in the primary election may
receive from the fund an amount not to exceed $350,000.
(2) In an uncontested general election, a certified candidate
who received his or her party's nomination in the primary may
receive from the fund campaign financing equal to ten percent of the
amount available to a candidate in a contested general election for
the same office.
(c) The State Election Commission may not distribute revenues
to certified candidates in excess of the total amount of money
deposited in the fund pursuant to section six of this article. If
the Election Commission determines that the money in the fund is
insufficient to totally fund all certified candidates, the
Commission shall distribute the remaining money proportionally,
according to each candidate's eligibility for funding. Each
candidate may raise additional money in the same manner as a nonparticipating candidate for the same office up to the unfunded
amount of the candidate's eligible funding. The Election Commission
shall propose for promulgation a legislative rule on distribution
of funds.
(d) If the State Election Commission determines from reports
filed by a nonparticipating candidate pursuant to section five,
article eight of this chapter or pursuant to subsection (c), section
thirteen of this article that a nonparticipating candidate's
campaign excess expenditures or obligations, in the aggregate, have
exceeded by twenty percent the initial funding available under
section eleven of this article to any certified candidate running
for the same office, the State Election Commission shall immediately
release rescue funds to any opposing certified candidate for the
same office.
(e) If the State Election Commission determines from reports
filed pursuant to subsection (d), section thirteen of this article
or pursuant to subsection (b), section two, article eight of this
chapter that independent expenditures on behalf of a
nonparticipating candidate, either alone or in combination with the
nonparticipating candidate's campaign expenditures or obligations,
have exceeded by twenty percent the initial funding available under
section eleven of this article to any certified candidate running
for the same office, the Election Commission shall immediately
release rescue funds to any certified candidate who is an opponent
for the same office.
(f) If the Election Commission determines from reports filed pursuant to subsection (d), section thirteen of this article or
pursuant to subsection (b), section two, article eight of this
chapter that independent expenditures on behalf of a certified
candidate, in combination with the certified candidate's campaign
expenditures or obligations, exceed by twenty percent the initial
funding available under section eleven of this article to any
certified candidate running for the same office, the State Election
Commission shall immediately release rescue funds to any other
certified candidate who is an opponent for the same office.
(g) Rescue funds released under this section are limited to two
times the initial funding for a certified candidate.
§3-12-12. Restrictions on contributions and expenditures.
(a) A certified candidate or his or her committee may not
accept contributions from any private source, including the personal
funds of the candidate and the candidate's immediate family, during
the primary or general election campaign periods except as permitted
by this article.
(b) After filing the declaration of intent and through the
qualifying period, a participating candidate may spend or obligate
no more than he or she has collected in exploratory and qualifying
contributions. After the qualifying period and through the general
election campaign period, a certified candidate may also spend or
obligate the funds he or she receives from the fund under the
provisions of section eleven of this article.
(c) A participating or certified candidate may expend
exploratory and qualifying contributions and campaign financing from the fund only for campaign-related activities as provided in section
nine, article eight of this chapter. Moneys distributed to a
certified candidate from the fund may be expended only during the
primary and general election campaign period for which funds were
dispersed. Money from the fund may not be used:
(1) In violation of the law;
(2) To repay any personal, family or business loans,
expenditures, or debts; or
(3) To help any other candidate.
(d) A certified candidate or his or her committee must
return to the fund any unspent and unobligated public campaign
financing funds within forty-eight hours after:
(1) The date on which the candidate ceases to be certified; or
(2) The date on which the individual loses the primary election
or otherwise ceases to be a candidate.
(e) Funds remaining unspent or unobligated after the close of
the primary election campaign period may be retained by the
candidate for use during the general election campaign period, but
shall be deducted from the amount the candidate is eligible to
receive under subsection (b), section eleven of this article.
(f) A certified candidate or his or her committee must return
to the fund any unspent or unobligated public financing fund within
five days of the general election.
(g) A contribution from one person may not be made in the name
of another person.
(h) A participating or certified candidate or his or her committee receiving qualifying contributions or exploratory
contributions from a person not listed on the receipt required by
sections eight and nine of this article is liable to the State
Election Commission for the entire amount of that contribution and
any applicable penalties.
(i) A certified candidate accepting any benefits under the
provisions of this article shall continue to comply with all of its
provisions throughout the primary and general elections.
(j) A participating or certified candidate or his or her
financial agent shall provide the Secretary of State with all
requested campaign records, including all records of exploratory and
qualifying contributions received and campaign expenditures and
obligations, and shall fully cooperate with any audit of campaign
finances requested or authorized by the State Election Commission.
§3-12-13. Reporting requirements.
(a) During the exploratory and qualifying periods, a
participating candidate or his or her financial agent shall submit,
on the last day of each month, a report of all exploratory and
qualifying contributions along with their receipts and an accounting
of all expenditures and obligations. The reports shall be on forms
or in a format prescribed by the Secretary of State.
(b) No later than seventy-two hours after the close of the
qualifying period, a participating candidate or his or her financial
agent shall report to the Secretary of State on appropriate forms
a summary of:
(1) All exploratory contributions received and funds expended or obligated during the exploratory period together with copies, any
receipts not previously submitted for exploratory contributions.
(2) All qualifying contributions received and funds expended
or obligated during the qualifying period, together with copies of
any receipts not previously submitted for qualifying contributions.
(c) A certified candidate or his or her financial agent shall
file periodic financial statements in accordance with in section
eight, article five of this chapter except those required by
subdivision three, detailing all funds received, expended or
obligated during the specified periods. The reports shall be on
forms approved by the Secretary of State.
(d) In addition to the financial statements required to be
filed by a certified candidate under subsection (c) of this section,
within five days after the primary and within five days of the
general for public office pursuant to section five, article eight
of this chapter, a nonparticipating candidate or his or her
financial agent shall report to the Secretary of State on approved
forms an itemized summary of his or her campaign expenditure or
obligations, according to the following provisions and guidelines:
(1) On the first Saturday in March or within six days
thereafter listing the nonparticipating candidates expenditures and
obligations prior to March 1 if, the nonparticipating candidate's
campaign expenditures or obligations, in the aggregate, exceed by
twenty percent the initial funding available under section eleven
of this article to any certified candidate for the same office.
(2) Beginning on the first Saturday in April, listing any additional excess expenditures or obligations, in the aggregate,
that exceed by twenty percent the initial funding available under
section eleven of this article to any certified participating
candidate running for the same office which have taken place
subsequent to those reported on the financial statement required to
be filed by a candidate for public office pursuant to subdivision
(1), subsection (b), section five, article eight of this chapter.
Thereafter, any additional excess expenditures or obligations, in
the aggregate, that exceed by twenty percent the initial funding
available under section eleven of this article to any certified
candidate running for the same office made prior to the tenth day
before the primary election shall be reported to the Secretary of
State within forty-eight hours.
(3) On the first Saturday in July or within six days thereafter
listing the nonparticipating candidates expenditures and obligations
prior to July 1 subsequent to the primary election, if, the
nonparticipating candidate's expenditures or obligations, in the
aggregate, exceed by twenty percent the initial funding available
under section eleven of this article to any certified candidate
running for the same office.
(4) Beginning on the first Saturday in October listing any
additional excess expenditures or obligations, in the aggregate,
that exceed by twenty percent the initial funding available under
section eleven of this article to any certified candidate running
for the same office which have taken place subsequent to those
reported on the financial statement required to be filed by a candidate for public office pursuant to subdivision (4), subsection
(b), section five, article eight of this chapter. Thereafter, any
additional excess expenditures or obligations, in the aggregate,
that exceed by twenty percent the initial funding available under
section eleven of this article to any certified candidate running
for the same office made prior to the tenth day before the general
election shall be reported to the State Election Commission within
forty-eight hours.
(5) During the last fifteen days before the primary or general
elections in 2012, the nonparticipating candidate or his or her
financial agent shall report to the State Election Commission within
twenty-four hours thereof every additional excess campaign
expenditure or obligation, in the aggregate, that exceeds by twenty
percent the initial funding available under section eleven of this
article to any certified candidate running for the same office.
(e) Any person, organization or entity making independent
expenditures advocating the election or defeat of a certified
candidate or the nomination or election of any candidate who is
opposed by a certified candidate in excess of $1,000, in the
aggregate shall report these expenditures to the State Election
Commission on approved forms within forty-eight hours of the
expenditure. The reporting form shall state the name of the person
or entity making the independent expenditures, the names of and
office for which the candidates are seeking election, whether
expenditure advocated the nomination, election or defeat of a
particular candidate, and the name of any candidate who stands to benefit from the independent expenditures.
(f) During the last fifteen days before the primary or general
election, in 2010 and 2012, any person, organization or entity
making independent expenditures advocating the election or defeat
of any candidate, including the election or defeat of a certified
candidate or the nomination or election of any candidate who is
opposed by a certified candidate, shall continue to file reports as
required pursuant to subsection (b), section two, article eight of
this chapter.
§3-12-14. Duties of the State Election Commission; Secretary of
State.
(a) In addition to its other duties, the State Election
Commission shall each carry out the duties of this article and
complete the following as applicable:
(1) Prescribe forms for reports, statements, notices and other
documents required by this article;
(2) Make an annual report to the Legislature accounting for
moneys in the fund, describing the State Election Commission's
activities, and listing any recommendations for changes of law,
administration or funding amounts;
(3) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code
as may be necessary for the proper administration of the provisions
of this article;
(4) Enforce the provisions of this article to ensure that
moneys from the fund are placed in candidate campaign accounts and spent as specified in this article;
(5) Monitor reports filed pursuant to this article and the
financial records of candidates to ensure that qualified candidates
receive matching funds promptly and to ensure that moneys required
by this article to be paid to the fund are deposited in the fund.
(6) Cause an audit of the fund to be conducted by independent
certified public accountants ninety days after a general election.
The State Election Commission shall cooperate with the audit,
provide all necessary documentation and financial records to the
Auditor and maintain a record of all information supplied by the
audit.
(7) In consultation with the State Treasurer and the State
Auditor, shall develop a rapid, reliable method of conveying funds
to certified candidates. In all cases, the commission shall
distribute funds to certified candidates in a manner that is
expeditious, ensures accountability, and safe guards the integrity
of the fund.
(8) Regularly monitor the receipts, disbursements, obligations
and balance in the fund to determine whether the fund will have
sufficient moneys to meets its obligations and to assure that a
minimum of $2.8 million is available for disbursement during the
general election campaign period.
(b) In addition to its other duties, the Secretary of State
shall each carry out the duties of this article and complete the
following as applicable:
(1) Prescribe forms for reports, statements, notices and other documents required by this article;
(2) Prepare and publish information about this article and
provide it to potential candidates and the citizens of this state;
(3) Prepare and publish instructions setting forth methods of
bookkeeping and preservation of records to facilitate compliance
with this article and explaining the duties of candidates and others
participating in elections under the provisions of this article;
(4) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code
as may be necessary for the proper administration of the provisions
of this article;
(5) Enforce the provisions of this article to ensure that
moneys from the fund are placed in candidate campaign accounts and
spent as specified in this article;
(6) Monitor reports filed pursuant to this article and the
financial records of candidates to ensure that qualified candidates
receive matching funds promptly and to ensure that moneys required
by this article to be paid to the fund are deposited in the fund.
(7) Ensure public access to the campaign finance reports
required pursuant to this article, and whenever possible, use
electronic means for the reporting, storing and display of the
information;
(8) Prepare a voters' guide for the general public listing the
names of each candidate seeking election to the Supreme Court of
Appeals. Both certified and nonparticipating candidates shall be
invited by the State Election Commission to submit a statement, not to exceed five hundred words in length for inclusion in the guide.
The guide shall identify the candidates that are certified
candidates and the candidates that are nonparticipating candidates.
Copies of the guide shall be posted on the web site of the Secretary
of State as soon as may be practical.
(c) To fulfill its responsibilities under this article, the
State Election Commission and the Secretary of State may subpoena
witnesses, compel their attendance and testimony, administer oaths
and affirmations, take evidence and require by subpoena the
production of any books, papers, records, or other items material
to the performance of their duties or the exercise of their powers.
The State Election Commission may also propose and adopt procedural
rules to carry out the purposes and provisions of this article and
to govern procedures of the State Election Commission as it relates
to the requirements of this article.
§3-12-15. Criminal penalties.
(a) A participating or certified candidate who, either
personally or through his or her committee, knowingly accepts
contributions or benefits in excess of those allowed under this
article, spends or obligates funds in excess of the public campaign
financing funding to which they are entitled, or uses the benefits
or funding for a purpose other than those permitted under this
article is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $50 nor more than $500, or confined in
jail for up to thirty days, or both fined and confined.
(b) A participating or certified candidate who, either personally or through his or her committee or financial agent,
provides false information to or conceals or withholds information
from the State Election Commission or the Secretary of State is
guilty of a misdemeanor and, upon conviction thereof, shall be fined
not less than $1,000 nor more than $10,000, or confined in jail for
up to one year, or both fined and confined.
§3-12-16. Civil penalties.
(a) If a participating or certified candidate or his or her
committee or financial agent unintentionally accepts contributions
from a private source in violation of the provisions of this article
or spends or obligates to spend more than the amount of public
financing money he or she is eligible to receive from the fund
pursuant to section eleven or fourteen of this article, the State
Election Commission may order the candidate to pay to the State
Election Commission an amount equal to the amount of the private
contribution or excess expenditure or obligation.
(b) If a participating or certified candidate or his or her
committee or financial agent intentionally accepts contributions
from a private source in violation of this article or spends or
obligates more than the amount of public campaign financing he or
she is eligible to receive from the fund, the State Election
Commission shall order the candidate to pay to the State Election
Commission an amount equal to ten times the amount of the private
contribution or excess expenditure or obligation. The candidate
shall pay the civil penalty authorized under this subsection within
seven days of receipt of written notice from the State Election Commission of the imposition of the penalty.
(c) If a participating or certified candidate fails to pay any
moneys required to be paid to the State Election Commission or
returned to the fund under this article, the State Election
Commission may order the candidate to pay an amount equal to three
times the amount that should have been paid to the State Election
Commission or returned to the fund.
(d) In addition to any other penalties imposed by law, the
State Election Commission may impose a civil penalty for a violation
by or on behalf of any candidate of any reporting requirement
imposed by this article in the amount of $100 a day. The penalty
shall be doubled if the amount not reported for a specific election
exceeds ten percent of the initial amount of public financing
available to a certified candidate in a primary or general election
pursuant to section twelve of this article.
(e) All penalties collected by the State Election Commission
pursuant to this section shall be deposited into the fund. The
candidate and the candidate's campaign account are jointly and
severally responsible for the payment of any penalty imposed
pursuant to this section.
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