H. B. 2432
(By Delegates Hatfield and Browning)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §3-8A-1, §3-8A-2,
§3-8A-3, §3-8A-4 and §3-8A-5, all relating to disclosure
requirements for political campaign advertisements; and
providing criminal and civil penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated
§3-8A-1, §3-8A-2,
§3-8A-3, §3-8A-4 and §3-8A-5,
all to read as follows:
ARTICLE 8A. DISCLOSURE REQUIREMENTS FOR POLITICAL CAMPAIGN
ADVERTISEMENTS.
§3-8A-1. Definitions.
As used in this article:
(1) "Advertisement" means any message appearing in the print
media, on television or on radio that constitutes a contribution or expenditure under this article.
(2) "Candidate" means an individual who has filed a
precandidacy statement pursuant to the provisions of section
five-e, article eight of this chapter, has qualified to have his or
her name listed on the ballot of any election, or who has declared
his or her intention to seek nomination or election through a
petition or write-in procedure for any state, regional, county,
municipal or district office which is to be filled at an election.
(3) "Full-screen" means the only picture appearing on the
television screen during the oral disclosure statement that
contains the disclosing person, that the picture occupies all
visible space on the television screen, and that the image of the
disclosing person occupies at least fifty percent of the vertical
height of the television screen.
(4) "Political committee" means all of those persons and
entities required to keep accounts and file financial statements
pursuant to the provisions of section five, article eight of this
chapter.
(5) "Political party organization" means any political party
executive committee or any political committee that operates under
the direction of a political party executive committee or political
party chair.
(6) "Print media" means billboards, cards, newspapers,
newspaper inserts, magazines, mass mailings, pamphlets, fliers, periodicals and outdoor advertising facilities. A "mass mailing"
is a mailing with more than five hundred pieces.
(7) "Radio" means any radio broadcast station that is subject
to the provisions of 47 U.S.C. §§315 and 317.
(8) "Scan line" means a standard term of measurement used in
the electronic media industry calculating a certain area in a
television advertisement.
(9) "Sponsor" means a candidate, political committee,
political party organization, political action committee, public
question committee, individual or other entity that purchases an
advertisement.
(10) "Television" means any television broadcast station,
cable television system, wireless-cable multipoint distribution
system, satellite company or telephone company transmitting video
programming that is subject to the provisions of 47 U.S.C. §§315
and 317.
(11) "Unobscured" means the only printed material that may
appear on the television screen is a visual disclosure statement
required by law, and nothing is blocking the view of the disclosing
person's face.
§3-8A-2. Basic disclosure requirements for all political campaign
advertisements.
(a)
Basic requirements. -- It is unlawful for any sponsor to
sponsor an advertisement in the print media or on radio or television that constitutes an expenditure or contribution required
to be disclosed under this article unless all the following
conditions are met:
(1) It bears the legend or includes the statement:
"Paid for by ______ [Name of candidate, political committee,
political party organization, political action committee, public
question committee, individual, or other sponsor]."
In television advertisements, this disclosure shall be made by
visual legend.
(2) The name used in the labeling required in subdivision (1)
of this subsection is the name that appears on the financial
statement of the individual or organization filed under the
provisions of section five, article eight of this chapter.
(3) The sponsor states in the advertisement its position for
or against a public question, provided that this subdivision
applies only if the advertisement is made for or against a public
question.
(4) In a print media advertisement supporting or opposing the
nomination or election of one or more clearly identified
candidates, the sponsor states whether it is authorized by a
candidate. The visual legend in the advertisement shall state
either "Authorized by [name of candidate], candidate for [name of
office]" or "Not authorized by a candidate." This subdivision does
not apply if the sponsor of the advertisement is the candidate the advertisement supports or that candidate's political committee.
(5) In a print media advertisement that identifies a candidate
the sponsor is opposing, the sponsor discloses in the advertisement
the name of the candidate who is intended to benefit from the
advertisement. This subdivision applies only when the sponsor
coordinates or consults about the advertisement or the expenditure
for it with the candidate who is intended to benefit. If an
advertisement described in this section is jointly sponsored, the
disclosure statement shall name all the sponsors.
(b)
Size requirements. -- In a print media advertisement
covered by subsection (a) of this section, the height of all
disclosure statements required by that subsection shall be at least
five percent of the height of the printed space of the
advertisement, but not less than twelve points in size. In an
advertisement in a newspaper or a newspaper insert, the total
height of the disclosure statement need not constitute five percent
of the printed space of the advertisement if the type of the
disclosure statement is at least twenty-eight points in size. If
a single advertisement consists of multiple pages, folds or faces,
the disclosure requirement of this section applies only to one
page, fold or face. In a television advertisement covered by
subsection (a) of this section, the visual disclosure legend shall
constitute thirty-two scan lines in size. In a radio advertisement
covered by subsection (a) of this section, the disclosure statement shall last at least two seconds, if the statement is spoken so that
its contents may be easily understood.
(c)
Misrepresentation of authorization. -- Any candidate,
political committee, political party organization, political action
committee, public question committee, individual or other sponsor
making an advertisement in the print media or on radio or
television bearing any legend required by subsection (a) of this
section that misrepresents the sponsorship or authorization of the
advertisement is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than five thousand dollars nor
more than one hundred thousand dollars or confined in jail for not
more than one year, or both fined and confined.
§3-8A-3. Disclosure requirements for television and radio
advertisements supporting or opposing the nomination
or election of one or more clearly identified
candidates.
(a)
Expanded disclosure requirements. -- Any political
campaign advertisement on radio or television shall comply with the
expanded disclosure requirements set forth in this section. To the
extent that it provides the same information required by section
two of this article, a statement made pursuant to this section
satisfies the requirements of section two of this article for the
same advertisement.
(b)
Disclosure requirements for television. --
(1)
Candidate advertisements on television. -- Television
advertisements purchased by a candidate or by a political committee
supporting or opposing the nomination or election of one or more
clearly identified candidates shall include a disclosure statement
spoken by the candidate and containing at least the following
words: "I am (or "This is____") [name of candidate], candidate for
[name of office], and I (or "my campaign____") sponsored this ad."
This subdivision applies only to an advertisement that mentions the
name of, shows the picture of, transmits the voice of, or otherwise
refers to an opposing candidate for the same office as the
sponsoring candidate.
(2)
Political party advertisements on television. --
Television advertisements purchased by a political party
organization supporting or opposing the nomination or election of
one or more clearly identified candidates shall include a
disclosure statement spoken by the chair, executive director or
treasurer of the political party organization and containing at
least the following words: "The [name of political party
organization] sponsored this ad opposing/supporting [name of
candidate] for [name of office]." The disclosed name of the
political party organization shall include the name of the
political party as it appears on the ballot.
(3)
Political action committee advertisements on television.
-- Television advertisements purchased by a political action committee supporting or opposing the nomination or election of one
or more clearly identified candidates shall include a disclosure
statement spoken by the chief executive officer or treasurer of the
political action committee and containing at least the following
words: "The [name of political action committee] political action
committee sponsored this ad opposing/supporting [name of candidate]
for [name of office]." The name of the political action committee
used in the advertisement shall be the name that appears on the
financial statement filed under the provisions of section five,
article eight of this chapter.
(4)
Advertisements on television by an individual. --
Television advertisements purchased by an individual supporting or
opposing the nomination or election of one or more clearly
identified candidates shall include a disclosure statement spoken
by the individual and containing at least the following words: "I
am [individual's name], and I sponsored this advertisement
opposing/supporting [name of candidate] for [name of office]."
(5)
Advertisements on television by another sponsor. --
Television advertisements purchased by a sponsor other than a
candidate, a political committee, a political party organization,
a political action committee or an individual which supports or
opposes the nomination or election of one or more clearly
identified candidates shall include a disclosure statement spoken
by the chief executive or principal decision maker of the sponsor and containing at least the following words: "[Name of sponsor]
sponsored this ad."
(6)
All advertisements on television. -- In any television
advertisement described in subdivisions (1) through (4) of this
subsection, an unobscured, full-screen picture containing the
disclosing individual, either in photographic form or through the
actual appearance of the disclosing individual on camera, shall be
featured throughout the duration of the disclosure statement.
(c)
Disclosure requirements for radio. --
(1)
Candidate advertisements on radio. -- Radio advertisements
purchased by a candidate or by a political committee supporting or
opposing the nomination or election of one or more clearly
identified candidates shall include a disclosure statement spoken
by the candidate and containing at least the following words: "I
am (or "This is____") [name of candidate], candidate for [name of
office], and this ad was paid for (or "sponsored" or "furnished")
by [name of political committee that paid for the advertisement]."
This subdivision applies only to an advertisement that mentions the
name of, transmits the voice of, or otherwise refers to an opposing
candidate for the same office as the sponsoring candidate.
(2)
Political party advertisements on radio. -- Radio
advertisements purchased by a political party organization
supporting or opposing the nomination or election of one or more
clearly identified candidates shall include a disclosure statement spoken by the chair, executive director or treasurer of the
political party organization and containing at least the following
words: "This ad opposing/supporting [name of candidate] for [name
of office] was paid for (or "sponsored" or "furnished") by [name of
political party]." The disclosed name of the political party
organization shall include the name of the political party as it
appears on the ballot.
(3)
Political action committee advertisements on radio. --
Radio advertisements purchased by a political action committee
supporting or opposing the nomination or election of one or more
clearly identified candidates shall include a disclosure statement
spoken by the chief executive officer or treasurer of the political
action committee and containing at least the following words:
"This ad opposing/supporting [name of candidate] for [name of
office] was paid for (or "sponsored" or "furnished") by [name of
political action committee] political action committee." The name
of the political action committee used in the advertisement shall
be the name that appears on the financial statement filed under the
provisions of section five, article eight of this chapter.
(4)
Advertisements on radio by an individual. -- Radio
advertisements purchased by an individual supporting or opposing
the nomination or election of one or more clearly identified
candidates shall include a disclosure statement spoken by the
individual and containing at least the following words: "I am [individual's name], and this ad opposing/supporting [name of
candidate] for [name of office] was paid for (or "sponsored" or
"furnished") by me."
(5)
Advertisements on radio by another sponsor. -- Radio
advertisements purchased by a sponsor other than a candidate, a
political committee, a political party organization, a political
action committee or an individual which supports or opposes the
nomination or election of one or more clearly identified candidates
shall include a disclosure statement spoken by the chief executive
or principal decision maker of the sponsor and containing at least
the following words: "[Name of sponsor] paid for (or "sponsored"
or "furnished") this ad."
(d)
Placement of disclosure statement in television and radio
advertisements. -- In advertisements on television, a sponsor may
place the disclosure statement required by this section at any
point during the advertisement, except if the duration of the
advertisement is more than five minutes, the disclosure statement
shall be made both at the beginning and end of the advertisement.
The sponsor may provide the oral disclosure statement required by
this section at the same time as the visual disclosure required
under the Communications Act of 1934, 47 U.S.C. §§315 and 317, is
shown. But any visual disclosure legend shall be at least 32 scan
lines in size. For advertisements on radio, the placement of the
oral disclosure statement shall comply with the requirements of the Communications Act of 1934, 47 U.S.C. §§315 and 317.
(e)
Choice of supporting or opposing a candidate. -- In its
oral disclosure statement, a sponsoring political party
organization, political action committee, individual or other
noncandidate sponsor shall choose either to identify an
advertisement as supporting or opposing the nomination or election
of one or more clearly identified candidates.
(f)
Joint sponsors. -- If an advertisement described in this
section is jointly sponsored, the disclosure statement shall name
all the sponsors and the disclosing individual shall be one of
those sponsors. If a candidate is one of the sponsors, that
candidate shall be the disclosing individual, and if more than one
candidate is the sponsor, at least one of the candidates shall be
the disclosing individual.
(g)
Legal remedy. -- Pursuant to the conditions established in
subdivisions (1), (2), and (3) of this subsection, a candidate for
an elective office who complied with the television and radio
disclosure requirements throughout that candidate's entire campaign
has a monetary remedy in a civil action against: (i) An opposing
candidate or political committee whose television or radio
advertisement violates these disclosure requirements; and (ii)
against any political party organization, political action
committee, individual, or other sponsor whose advertisement for
that elective office violates these disclosure requirements:
(1) Any plaintiff candidate in a race in an action under this
section shall complete and file a notice of complaint regarding
failure to disclose on television or radio campaign advertising
with the Secretary of State after the airing of the advertisement
but no later than the five days after the day on which the election
occurred. The timely filing of this notice preserves the
candidate's right to bring an action in circuit court any time
within ninety days after the election.
(2) (a) Upon receiving a favorable verdict, the plaintiff
candidate shall receive a monetary award of actual damages. The
price of actual damages shall be calculated as the total dollar
amount of television and radio advertising time that was aired and
that the plaintiff candidate correctly identifies as being in
violation of the disclosure requirements of this section. The
plaintiff candidate shall also receive an award that trebles the
amount of actual damages if:
(i) The plaintiff candidate can establish having notified or
attempted to notify the sponsor of the advertisement properly by
return-receipt mail about the failure of a particular advertisement
or advertisements to comply with the disclosure requirements of
this section; and
(ii) After the notice or attempted notice, the advertisement
continued to be aired.
(b) The treble damages shall be calculated from the date on which the return-receipt notice was accepted or rejected by a
defendant sponsoring candidate or political committee, political
party organization, political action committee or individual. The
plaintiff candidate or political committee shall send a copy of any
return-receipt mailing to the Secretary of State as provided in
subdivision (1) of this subsection within five days after the
notice is returned to the possession of the candidate or political
committee.
(c) The plaintiff candidate may bring the civil action
personally or authorize his or her political committee to bring the
civil action.
(3) A candidate who violates the disclosure requirements of
this article and that candidate's campaign committee are jointly
and severally liable for the payment of damages and attorneys'
fees. If the candidate is held personally liable for any payment
of damages or attorneys' fees, the candidate may not use or be
reimbursed by funds from the candidate's campaign committee in
paying any amount.
(h)
Relation to the Communications Act of 1934. -- Television
advertisements by a sponsor supporting or opposing the nomination
or election of one or more clearly identified candidates shall
comply with the oral disclosure requirements in this section.
Those advertisements shall also comply with disclosure requirements
under the Communications Act of 1934, 47 U.S.C. §§315 and 317 by use of visual legends. The content of those visual legends is
specified by the Communications Act of 1934, 47 U.S.C. §§315 and
317, and this article. The size of those visual legends is
determined by this article, which satisfies requirements under the
Communications Act of 1934, 47 U.S.C. §§315 and 317. In the case
of radio advertisements, the oral disclosure requirements under
this section incorporate the content requirements under the
Communications Act of 1934, 47 U.S.C. §§315 and 317.
(i)
No additional liability of television or radio outlets. --
Television or radio outlets are not liable under this article for
carriage of political advertisements that fail to include the
disclosure requirements provided in this article.
(j)
No criminal liability. -- Nothing in this section
regarding the disclosure requirements in subsections (b) and (c) of
this section creates criminal liability.
§3-8A-4. Scope of disclosure requirements.
The disclosure requirements of this article apply to any
sponsor of an advertisement in the print media or on radio or
television the cost or value of which constitutes an expenditure or
contribution required to be disclosed under this article, except
that the disclosure requirements of this article:
(1) Do not apply to an individual who makes uncoordinated
independent expenditures aggregating less than one thousand dollars
in a political campaign; and
(2) Do not apply to an individual who incurs expenses with
respect to a public question.
§3-8A-5. Evidence that communications are "to support or oppose
the nomination or election of one or more clearly
identified candidates."
(a) Either of the following is a means, but not necessarily
the exclusive or conclusive means, of proving that an individual or
other entity acted "to support or oppose the nomination or election
of one or more clearly identified candidates":
(1) Evidence of financial sponsorship of communications to the
general public that use phrases such as "vote for," "reelect,"
"support," "cast your ballot for," "(name of candidate) for (name
of office)," "(name of candidate) in (year)," "vote against,"
"defeat," "reject," "vote pro-(policy position)" or "vote
anti-(policy position)" accompanied by a list of candidates clearly
labeled "pro-(policy position)" or "anti-(policy position)," or
communications of campaign words or slogans, such as posters,
bumper stickers, advertisements, etc., which say "(name of
candidate)'s the One," "(name of candidate)"! or the names of two
candidates joined by a hyphen or slash.
(2) Evidence of financial sponsorship of communications whose
essential nature expresses electoral advocacy to the general public
and goes beyond a mere discussion of public issues in that they
direct voters to take some action to nominate, elect or defeat a candidate in an election. If the course of action is unclear,
contextual factors such as the language of the communication as a
whole, the timing of the communication in relation to events of the
day, the distribution of the communication to a significant number
of registered voters for that candidate's election, and the cost of
the communication may be considered in determining whether the
action urged could only be interpreted by a reasonable person as
advocating the nomination, election or defeat of that candidate in
that election.
(b) Notwithstanding the provisions of subsection (a) of this
section, a communication is not subject to regulation as a
contribution or expenditure under this article if it:
(1) Appears in a news story, commentary or editorial
distributed through the facilities of any broadcasting station,
newspaper or magazine, unless those facilities are owned or
controlled by any political party or political committee;
(2) Is distributed by a corporation solely to its stockholders
and employees; or
(3) Is distributed by any organization, association or labor
union solely to its members or to subscribers or recipients of its
regular publications, or is made available to individuals in
response to their request, including through the Internet.
NOTE: The purpose of this bill is to provide disclosure
requirements for political campaign advertisements. The bill also
provides criminal penalties and civil remedies.
This article is new; therefore, strike-throughs and
underscoring have been omitted.