H. B. 3309
(By Delegates Fleischauer, Manchin, Caputo,
Fragale, Boggs, White, Miley and Morgan)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as 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,
§3-12-16, §3-12-17, §3-12-18 and §3-12-19, all relating to
creating the West Virginia Supreme Court Public Campaign
Financing Act; providing alterative campaign financing option
for candidates for the West Virginia Supreme Court 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 office of justice for the West Virginia
Supreme Court beginning in 2012; establishing a Public
Campaign Financing Fund and sources of revenue for the fund;
rules of state governmental agencies, boards and commissions;
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 seed money 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 seed money 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 Supreme Court
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 supplemental public
campaign funds for independent expenditures on behalf of a
nonparticipating or certified opponent; setting forth certain
duties of the State Election Commission; providing for the
deposit of certain revenue into the fund; requiring repayment
of excessive expenditures by candidates; providing both civil
and criminal penalties for violations of the act; and setting
forth an effective date.
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 §3-12-1, §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,
§3-12-16, §3-12-17, §3-12-18 and §3-12-19, all to read as follows:
ARTICLE 12. WEST VIRGINIA SUPREME COURT PUBLIC CAMPAIGN FINANCING
ACT.
§3-12-1. Short title.
This article shall be known as the "West Virginia Supreme
Court Public Campaign Financing Act".
§3-12-2. Legislative findings and declarations.
(a) The Legislature hereby finds and declares that current
election finance laws:
(1) May allow individuals and committees who contribute large
amounts of money to candidates running for Justice of the West
Virginia Supreme Court have an undue influence on the Supreme
Court;
(2) May erode public confidence in the judiciary and create an
appearance of impropriety, which violates the Code of Judicial
Conduct and causes the court's impartiality to be questioned;
(3) May allow candidates running for the Supreme Court to
accept large campaign contributions from interested parties who
have cases pending before the court.
(b) In contrast, the creation of a public campaign financing
system provides qualified candidates for the Supreme Court with
resources with which to communicate with voters, frees those
candidates from the chore of raising money, thus allowing them more
time to conduct their official duties and the creation of a public
campaign financing system should improve the integrity of the West
Virginia Supreme Court by reducing the potential for undue or
improper influence of large private contributions, thus removing
the appearance of impropriety, which has tarnished the reputation
of that honorable court; remove funding as a source of campaign
attention and candidate attack; promote freedom of speech and
direct the focus of judicial campaigns to issues of substance.
§3-12-3. Definitions.
As used in this article, the following terms and phrases have the following meanings:
(1) "Certified candidate" means an individual seeking
nomination or election to the West Virginia Supreme Court 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.
(2) "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, "the incumbent", or through an
unambiguous reference to his or her status as a candidate
including, for instance, "the democratic candidate for the Supreme
Court."
(3) "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.
(4) "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
in excess of the public campaign funds available to the certified
candidate under section eleven of this article.
(5) "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 candidate for the Supreme Court,
or to aid or promote the success or defeat of any political party
at any election.
(6) "Fund" means the Supreme Court Public Campaign Financing
Fund created by section five of this article.
(7) "General election campaign period" means the period
beginning the day after the primary election and ending on the day
of the general election in that election year.
(8) "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.
(9) "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.
(10) "Nonparticipating candidate" means a candidate who is:
(A) Seeking election to the West Virginia Supreme Court;
(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.
(11) "Participating candidate" means a candidate seeking
election to the State Supreme Court and who is attempting to be
certified in accordance with section ten of this article to receive public campaign financing from the fund.
(12) "Person" means an individual, partnership, committee,
association, and any other organization or group of individuals.
(13) "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.
(14) "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.
(15) "Qualifying contribution" means a contribution of not
less than $5 and not more than $100 in the form of a check or money
order, made payable to a participating candidate or the candidate's
committee, received during the qualifying period, and which is:
(A) Made by a registered voter;
(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.
(16) "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 November 1 preceding the
election year and ends March 1 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.
(17) "Seed money contribution" means a contribution of no more
than $100 made by an individual adult, including a participating
candidate and members of his or her immediate family, during the
seed money period.
(18) "Seed money period" means the period during which a
participating candidate is permitted to raise and spend seed money
contributions to explore his or her chances of election and to
qualify for public campaign financing under this article. The seed
money period begins on the day after the most recent general
election and ends on the last day of the qualifying period in the next election year in which a candidate is running for the office
of Justice of the Supreme Court.
§3-12-4. Alternative campaign financing option.
This article establishes an alternative public financing
option available to candidates for election to the State Supreme
Court. The provisions of this article are applicable to candidates
beginning with the primary and general elections to be held in the
year 2012. Candidates electing the alternative campaign financing
option must comply with all other applicable election and campaign
laws and regulations as well as the Code of Judicial Conduct.
§3-12-5. Supreme Court Public Campaign Financing Fund, nature and
purposes of the fund.
There is hereby established a special account in the State
Treasury to be known as the "Supreme Court 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 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. Expenditures may be made from the fund
only for the purposes set forth in this article.
§3-12-6. Sources of revenue for the fund.
Revenue from the following sources shall be deposited in the fund:
(1) All qualifying contributions collected by participating
candidates or their committees.
(2) Unspent or unobligated seed money contributions.
(3) Money returned by participating candidates who fail to
comply with the provisions of this article.
(4) Unspent or unobligated moneys allotted to qualified
candidates and remaining unspent or unobligated on the date of the
primary or general election for which the money was distributed.
(5) Civil penalties levied by the State Election Commission
against candidates for violations of this article.
(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 residents of the state to
designated on his or her income tax return up to $3 of taxes for
deposit into the fund. If a husband and wife file a joint return
each spouse may designate up to $3 for deposit into the fund. All
amounts so designated are appropriated from the General Fund and
credited to the West Virginia Supreme Court Public Campaign
Financing Fund.
(9) One million dollars in proceeds resulting from the sale of
unclaimed property and deposited in the general revenue fund
pursuant to subsection (f), section thirteen, article eight, chapter thirty-six of this code shall be appropriated from the
General Revenue Fund and credited to the Supreme Court Public
Campaign Financing Fund on an annual basis.
(10) Surcharges imposed on administrative, civil or criminal
fines and penalties pursuant to section seven of this article.
(11) Money appropriated to the fund.
§3-12-7. Additional penalty assessment imposed against violators
of administrative orders, rules of state governmental
agencies, boards and commissions.
On and after July 1, 2009, in addition to all other criminal
or administrative fines or penalties which may be imposed by law,
there is hereby imposed an additional penalty assessment levied and
collected in an amount equal to ten percent of every administrative
or criminal fine or penalty which has been assessed against any
person, partnership, corporation or limited liability company for
the violation of any rule, regulation or order promulgated by any
state board, agency or commission, or for any violation of any
state law that is enforced by any state board, agency or commission
whenever the total amount of the collective criminal or
administrative fines or penalties assessed equal or exceed $1,000.
The additional penalties and assessments imposed in accordance with
this section shall be collected by the state board, agency or
commission and forwarded to the State Treasurer for deposit into
the Supreme Court Public Campaign Financing Fund.
§3-12-8. Declaration of intent.
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 State Supreme Court 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 of justice 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.
§3-12-9. Seed money.
(a) A participating candidate or his or her committee may not
accept seed money in contributions exceeding, in the aggregate,
$15,000.
(b) Every seed money contribution must be acknowledged by a
written receipt. Receipts for seed money 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 seed money 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 seed money contributions.
(c) A contribution from one person may not be made in the name
of another person.
(d) Upon certification or at the end of the seed money period,
whichever comes first, a participating or certified candidate or
his or her committee shall forward all unspent or unobligated seed
money to the State Election Commission for deposit in the fund.
§3-12-10. Qualifying contributions.
(a) No participating candidate or his or her committee may
accept more than one qualifying contribution from a single
individual.
(b) Every qualifying contribution must be acknowledged by a
written receipt which 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) The contributor's signature and printed name, home address
and telephone number;
(3) A statement near 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 or received
anything of value for making the contribution; and
(D) The individual soliciting the contribution on behalf of
the participating candidate has not been reimbursed or received
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 State Election Commission. A
contribution which is not acknowledged by a written receipt in the
form required by this subsection is not a qualifying contribution.
(c) During the qualifying period, a participating candidate or
his or her committee must obtain at least six hundred qualifying
contributions with no more than one-sixth of such contributions
coming from any one county.
(d) A participating candidate and each member of the
candidate's immediate family who is a registered voter may make one
qualifying contribution. A participating candidate may not use any
other personal funds to satisfy the qualifying contributions
requirements.
(e) A participating candidate may not give reimbursement or
anything of value in exchange for a qualifying contribution.
(f) All qualifying contributions collected by a participating
candidate or his or her committee must be deposited in the fund no
later than forty-eight hours after the close of the qualifying period.
§3-12-11. 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 that a participating candidate
has received the required number of qualifying contributions, the
State Election Commission shall determine whether the candidate:
(1) Has signed and filed a declaration of intent as required
by section seven of this article;
(2) Has obtained, either personally or through his or her
committee, the required number of qualifying contributions as
required by section nine of this article;
(3) Has not accepted other contributions, except for seed
money 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 2012 may nevertheless be certified under this article if the candidate
or his or her committee returns to the contributor, submits to the
State Election Commission for deposit into the fund or donates to
charity funds accepted but not expended or obligated 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
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
makes his or her final submission of qualifying contributions or,
if a challenge is filed under subsection (h) of this section, no
later than six business days after the candidate makes his or her
final submission of qualifying contributions. Upon certification,
a candidate shall transfer to the fund any unspent seed money
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 and shall
notify all other candidates for the Supreme Court 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.
Within five business days of a challenge, the candidate who listed
any contribution that is the subject of a challenge may file with
the State Election Commission an additional contribution collected
pursuant to section ten of this article for consideration 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.
(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 against any candidate who withdraws without approval.
§3-12-12. Schedule and amount of Public Campaign Financing Fund
payments.
(a) The State Election Commission shall make public campaign
financing funds 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 the amount of
$250,000.
(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 in a contested primary election.
(b) The State Election Commission shall make public campaign
financing funds 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 may
receive from the fund the same amount of campaign financing
available for a contested primary election under subdivision (1),
subsection 2, of this section.
(2) In an uncontested general election, a certified candidate
may receive from the fund campaign financing equal to ten percent
of the amount available in a contested general election.
(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.
§3-12-13. 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 seed money contributions.
After the qualifying period and through the general election
campaign period, a certified candidate may spend or obligate only
the funds he or she receives from the fund under the provisions of
section eleven or section fourteen of this article.
(c) A participating or certified candidate may expend seed
money and campaign financing from the fund only for campaign-
related activities as provided in section nine, article eight,
chapter three of this code. Moneys distributed to a certified
candidate from the fund may be expended only during the 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) Notwithstanding any other provision of this article to the
contrary, if at anytime during an election period, the State
Election Commission determines that the revenues in the fund are
insufficient to complete the distribution of funds required under
this article, the State Election Commission may permit a certified
candidate or his or her committee to accept and expend
contributions, aggregating no more than $1,000 per contributor,
from private sources up to the amount that would have been
distributed to the candidate under section eleven or fourteen of
this article had there been adequate money in the fund. The State
Election Commission shall propose rules for legislative approval as
provided by the provisions of section fifteen of this article to
provide a fair procedure for the equitable distribution of those
moneys that are in the fund and available for distribution among
the certified candidates at the time the revenues in the fund are
insufficient for complete distribution of funds as anticipated
under the provisions of this article.
(e) A certified candidate or his or her committee must return
to the fund any unspent and uncommitted public campaign financing
funds within forty-eight hours after:
(1) The date of the primary or general election;
(2) The date on which the candidate ceases to be certified; or
(3) The date on which the individual ceases to be a candidate.
(f) A contribution from one person may not be made in the name
of another person.
(g) A participating or certified candidate or his or her
committee receiving qualifying contributions or seed money
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.
(h) 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.
(i) A participating or certified candidate or his or her
financial agent shall provide the State Election Commission with
all requested campaign records, including all records of seed money
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.
§3-12-14. Reporting requirements.
(a) No later than forty-eight hours after the close of the
qualifying period, a participating candidate or his or her
financial agent shall report to the State Election Commission on
approved forms an itemized summary of:
(1) All seed money contributions received and funds expended
or obligated during the seed money period, together with copies of
all receipts for seed money contributions.
(2) All qualifying contributions received during the
qualifying period, together with copies of all receipts for
qualifying contributions.
(b) Within five days after the primary election and within
five days of the general election a certified candidate or his or
her financial agent shall report to the State Election Commission
on approved forms an itemized summary of all funds received and
funds expended or obligated prior to the election.
(c) In addition to the financial statements required to be
filed by a candidate 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 State Election
Commission 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 to any certified
candidate under section eleven, subsection (a), of this article.
(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 to any
certified participating candidate under section eleven of this
article 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 to any certified
candidate under section eleven, subsection (a), of this article
made prior to the tenth day before the primary election shall be
reported to the State Election Commission 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 to any certified candidate under section eleven,
subsection (b), of this article.
(4) Beginning on the first Saturday in October, listing any
additional excess expenditures or obligations, in the aggregate,
that exceed by twenty percent the funding available to any
certified candidate under section eleven, subsection (b), of this article 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 funding available to any certified candidate
under section eleven, subsection (b), of this article 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
election, 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 funding available to any certified candidate under
section eleven of this article.
(d) 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 the candidates who 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.
(e) During the last ten days before the primary or general
election 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.
§3-12-15. Supplemental funds.
(a) 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, the State Election Commission shall immediately release
additional campaign financing funds to any opposing certified
candidate equal to the amount of the excess expenditures.
(b) If the State Election Commission determines from reports filed pursuant to subsection (d), section thirteen of this article;
pursuant to subsection (b), section two, article eight of this
chapter; or pursuant to section two-b, article eight of this
chapter that independent expenditures or electioneering
communications 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, the State Election Commission
shall immediately release additional campaign financing funds to
any certified candidate who is that candidate's opponent equal to
the amount of the excess expenditures.
(c) If the State Election Commission determines from reports
filed pursuant to subsection (d), section thirteen of this article;
pursuant to subsection (b), section two, article eight of this
chapter; or pursuant to section two-b, article eight of this
chapter that independent expenditures or electioneering
communications 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 subsection (b), section eleven of this article to any
certified candidate in a general election, the State Election
Commission shall immediately release additional campaign financing
funds to any other certified candidate who is that candidate's opponent equal to the amount of the excess expenditures.
(d) Matching funds paid out to a certified candidate in this
section are limited to two times the initial amount of public
financing available to a certified candidate pursuant to section
eleven of this article.
§3-12-16. Duties of the State Election Commission.
(a) In addition to its other duties, the State Election
Commission shall:
(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) 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;
(5) 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;
(6) 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;
(7) 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.
(8) 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.
(9) 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; and
(10) Prepare a voters' guide for the general public listing
the names of each candidate. 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.
(b) To fulfill its responsibilities under this article, the
State Election Commission 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 the
State Election Commission's duties or the exercise of its 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.
§3-12-17. 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 imprisoned.
(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 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 imprisoned.
§3-12-18. 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 per 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 eleven 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.
§3-12-19. Effective date.
The provisions of this article are effective July 1, 2009.
NOTE: The purpose of this bill is to create a system for
public funding of election campaigns for candidates for the West
Virginia Supreme Court of Appeals, who agree to and do abide by
restrictions on campaign contributions from private sources and
limits on campaign spending, to avoid creating an appearance of
impropriety in the event those candidates are later elected to the
court.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.