WEST virginia legislature
2021 regular session
Senate Bill 597
By Senator Caputo
[Introduced March 8, 2021;
to the Committee on the Judiciary]
A BILL to amend and reenact §3-8-1a and §3-8-9 of the Code of West Virginia, 1931, as amended, all relating to defining caregiving expenses; and providing for caregiving expenses to be given to candidates running for office in West Virginia.
Be it enacted by the Legislature of West Virginia:
ARTICLE 8. regulation and control of elections.
As used in this article, the following terms have the following definitions:
(1) “Ballot issue” means a constitutional amendment, special levy, bond issue, local option referendum, municipal charter or revision, an increase or decrease of corporate limits, or any other question that is placed before the voters for a binding decision.
(2) “Billboard advertisement” means a commercially available outdoor advertisement, sign, or similar display regularly available for lease or rental to advertise a person, place, or product.
(3) “Broadcast, cable, or satellite communication” means a communication that is publicly distributed by a television station, radio station, cable television system, or satellite system.
(4) “Candidate” means an individual who:
(A) Has filed a certificate of announcement under §3-5-7 of this code or a municipal charter;
(B) Has filed a declaration of candidacy under §3-5-23 of this code;
(C) Has been named to fill a vacancy on a ballot; or
(D) Has declared a write-in candidacy or otherwise publicly declared his or her intention to seek nomination or election for any state, district, county, municipal, or party office to be filled at any primary, general, or special election.
(5) “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.
(6) “Caregiving services” means “direct care, protection, and supervision of a child or other person with a disability or a medical condition for which a candidate has direct caregiving responsibility.” For the purposes of this article, the caregiving service expense incurred must be in direct connection with the candidate’s campaign and service activities during the current election cycle.
(6) (7) “Caucus campaign committee” means a West
Virginia House of Delegates or Senate political party caucus campaign committee
that receives contributions and makes expenditures to support or oppose one or
more specific candidates or slates of candidates for nomination, election, or
committee membership. (7) (8) “Clearly identified” means that the name,
nickname, photograph, drawing, or other depiction of the candidate appears or
the identity of the candidate is otherwise apparent through an unambiguous
reference, such as “the Governor”, “your Senator”, or “the incumbent”, or
through an unambiguous reference to his or her status as a candidate, such as
“the Democratic candidate for Governor” or “the Republican candidate for
Supreme Court of Appeals”. (8) (9) “Contribution” means a gift, subscription,
loan, assessment, payment for services, dues, advance, donation, pledge,
contract, agreement, forbearance, promise of money, or other tangible thing of
value, whether 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) A coordinated expenditure is a contribution for the purposes of this article.
(B) An offer or tender of a contribution is not a contribution if expressly and unconditionally rejected or returned. A contribution does not include volunteer personal services provided without compensation: Provided, That a nonmonetary contribution is to be considered at fair market value for reporting requirements and contribution limitations.
(9) (10) “Coordinated expenditure” is an
expenditure made in concert with, in cooperation with, or at the request or
suggestion of a candidate or candidate’s committee and meeting the criteria
provided in §3-8-9a of this code. (10) (11) “Corporate political action committee”
means a political action committee that is a separate segregated fund of a
corporation that may only accept contributions from its restricted group as
outlined by the rules of the State Election Commission. (11) (12) “Direct costs of purchasing, producing,
or disseminating electioneering communications” means:
(A) Costs charged by a vendor, including, but not limited to, studio rental time, compensation of staff and employees, costs of video or audio recording media and talent, material and printing costs, and postage; or
(B) The cost of air time on broadcast, cable, or satellite radio and television stations, the costs of disseminating printed materials, studio time, use of facilities, and the charges for a broker to purchase air time.
(12) (13) “Disclosure date” means either of the
(A) The first date during any calendar year on which any electioneering communication is disseminated after the person paying for the communication has spent a total of $5,000 or more for the direct costs of purchasing, producing, or disseminating electioneering communications; or
(B) Any other date during that calendar year after any previous disclosure date on which the person has made additional expenditures totaling $5,000 or more for the direct costs of purchasing, producing, or disseminating electioneering communications.
(13) (14) “Election” means any primary, general, or
special election conducted under the provisions of this code or under the
charter of any municipality at which the voters nominate or elect candidates
for public office. For purposes of this article, each primary, general,
special, or local election constitutes a separate election. This definition is
not intended to modify or abrogate the definition of the term “nomination” as
used in this article. (14) (15)(A) “Electioneering communication” means
any paid communication made by broadcast, cable or satellite signal, mass
mailing, telephone bank, billboard advertisement, or publication in any
newspaper, magazine, or other periodical that:
(i) Refers to a clearly identified candidate for Governor, Secretary of State, Attorney General, Treasurer, Auditor, Commissioner of Agriculture, Supreme Court of Appeals, or the Legislature;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election in which the nomination for office sought by the candidate is to be determined; or
(II) Sixty days before a general or special election in which the office sought by the candidate is to be filled; and
(iii) Is targeted to the relevant electorate.
(B) “Electioneering communication” does not include:
(i) A news story, commentary, or editorial disseminated through the facilities of any broadcast, cable or satellite television, radio station, newspaper, magazine, or other periodical publication not owned or controlled by a political party, political committee, or candidate: Provided, That a news story disseminated through a medium owned or controlled by a political party, political committee, or candidate is nevertheless exempt if the news is:
(I) A bona fide news account communicated in a publication of general circulation or through a licensed broadcasting facility; and
(II) Is part of a general pattern of campaign-related news that gives reasonably equal coverage to all opposing candidates in the circulation, viewing, or listening area;
(ii) Activity by a candidate committee, party executive committee, a caucus campaign committee, or a political action committee that is required to be reported to the State Election Commission or the Secretary of State as an expenditure pursuant to §3-8-5 of this code or the rules of the State Election Commission or the Secretary of State promulgated pursuant to such provision: Provided, That independent expenditures by a party executive committee, caucus committee, or a political action committee required to be reported pursuant to §3-8-2 of this code are not exempt from the reporting requirements of this section;
(iii) A candidate debate or forum conducted pursuant to rules adopted by the State Election Commission or the Secretary of State or a communication promoting that debate or forum made by or on behalf of its sponsor;
(iv) A communication paid for by any organization operating under Section 501(c)(3) of the Internal Revenue Code of 1986;
(v) A communication made while the Legislature is in session which, incidental to promoting or opposing a specific piece of legislation pending before the Legislature, urges the audience to communicate with a member or members of the Legislature concerning that piece of legislation;
(vi) A statement or depiction by a membership organization in existence prior to the date on which the individual named or depicted became a candidate, made in a newsletter or other communication distributed only to bona fide members of that organization;
(vii) A communication made solely for the purpose of attracting public attention to a product or service offered for sale by a candidate or by a business owned or operated by a candidate which does not mention an election, the office sought by the candidate, or his or her status as a candidate; or
(viii) A communication, such as a voter’s guide, which refers to all of the candidates for one or more offices, which contains no appearance of endorsement for or opposition to the nomination or election of any candidate and which is intended as nonpartisan public education focused on issues and voting history.
(15) (16) “Expressly advocating” means any
(A) Uses phrases such as “vote for the Governor”, “re-elect your Senator”, “support the incumbent nominee for Supreme Court”, “cast your ballot for the Republican challenger for House of Delegates”, “Smith for House”, “Bob Smith in ‘04”, “vote Pro-Life”, or “vote Pro-Choice” accompanied by a listing of clearly identified candidates described as Pro-Life or Pro-Choice, “vote against Old Hickory”, “defeat” accompanied by a picture of one or more candidates, “reject the incumbent”;
(B) Communicates campaign slogans or individual words that can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidates, such as posters, bumper stickers, advertisements, etc., which say “Smith’s the One”, “Jones ‘06”, “Baker”, etc.; or
(C) Is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.
(16) (17) “Financial agent” means any individual
acting for and by himself or herself, or any two or more individuals acting
together or cooperating in a financial way to aid or take part in the
nomination or election of any candidate for public office, or to aid or promote
the success or defeat of any political party at any election. (17) (18) “Financial transactions” means all
contributions or loans received and all repayments of loans or expenditures
made to promote the candidacy of any person by any candidate or any
organization advocating or opposing the nomination, election, or defeat of any
candidate to be voted on. (18) (19) “Firewall” means a policy designed and
implemented to prohibit the flow of information between employees or
consultants providing services for the person paying for a communication and
those employees or consultants currently or previously providing services to a
candidate, or to a committee supporting or opposing a candidate, clearly
identified in the communication. (19) (20) “Foreign national” means the following:
(A) A foreign principal, as such term is defined in 22 U.S.C. §611(b), which includes:
(i) A government of a foreign country;
(ii) A foreign political party;
(iii) A person outside of the United States, unless it is established that such person:
(I) Is an individual and a citizen of the United States; or
(II) That such person is not an individual and is organized under or created by the laws of the United States or of any state or other place subject to the jurisdiction of the United States and has its principal place of business within the United States; and
(iv) A partnership, association, corporation, organization, or other combination of persons organized under the laws of, or having its principal place of business in, a foreign country.
(B) An individual who is not a citizen of the United States or a national of the United States, as defined in 8 U.S.C. §1101(a)(22), and who is not lawfully admitted for permanent residence, as defined by 8 U.S.C. §1101(a)(20).
(20) (21) “Fundraising event” or “fundraiser” means
an event such as a dinner, reception, testimonial, cocktail party, auction, or
similar affair through which contributions are solicited or received. (21) (22) “In concert or cooperation with or at the
request or suggestion of” means that a candidate or his or her agent consulted
(A) The sender regarding the content, timing, place, nature, or volume of a particular communication or communication to be made; or
(B) A person making an expenditure that would otherwise offset the necessity for an expenditure of the candidate or candidate’s committee.
(22) (23) “Independent expenditure” means an
expenditure by a person:
(A) Expressly advocating the election or defeat of a clearly identified candidate, including supporting or opposing the candidates of a political party; and
(B) That is not made in concert or cooperation with or at the request or suggestion of such candidate, his or her agents, the candidate’s authorized political committee, or a political party committee or its agents.
An expenditure which does not meet the criteria for an independent expenditure is considered a contribution.
(23) (24) “Local” refers to the election of
candidates to a city, county, or municipal office and any issue to be voted on
by only the residents of a particular political subdivision. (24) (25) “Mass mailing” means a mailing by United
States mail, facsimile, or electronic mail of more than 500 pieces of mail
matter of an identical or substantially similar nature within any 30-day
period. For purposes of this subdivision, “substantially similar” includes
communications that contain substantially the same template or language, but
vary in nonmaterial respects such as communications customized by the
recipient’s name, occupation, or geographic location. (25) (26) “Membership organization” means a group
that grants bona fide rights and privileges, such as 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. (26) (27) “Name” means the full first name, middle
name, or initial, if any, and full legal last name of an individual and the
full name of any association, corporation, committee, or other organization of
individuals, making the identity of any person who makes a contribution
apparent by unambiguous reference. (27) (28) “Person” means an individual,
corporation, partnership, committee, association, and any other organization or
group of individuals. (28) (29) “Political action committee” means a
committee organized by one or more persons, the primary purpose of which is to
support or oppose the nomination or election of one or more candidates. The
following are types of political action committees:
(A) A corporate political action committee, as that term is defined in this section;
(B) A membership organization, as that term is defined in this section; and
(C) An unaffiliated political action committee, as that term is defined in this section.
(29) (30) “Political committee” means any candidate
committee, political action committee, or political party committee. (30) (31) “Political party” means a political party
as that term is defined by §3-1-8 of this code or any committee established,
financed, maintained, or controlled by the party, including any subsidiary,
branch, or local unit thereof and including national or regional affiliates of
the party. (31) (32) “Political party committee” means a
committee established by a political party or political party caucus for the
purposes of engaging in the influencing of the election, nomination, or defeat
of a candidate in any election. (32) (33) “Political purposes” means supporting or
opposing the nomination, election, or defeat of one or more candidates or the
passage or defeat of a ballot issue, supporting the retirement of the debt of a
candidate or political committee or the administration or activities of an
established political party or an organization which has declared itself a
political party, and determining the advisability of becoming a candidate under
the pre-candidacy financing provisions of this chapter. (33) (34) “Targeted to the relevant electorate”
means a communication which refers to a clearly identified candidate for
statewide office or the Legislature and which can be received by 140,000 or
more individuals in the state in the case of a candidacy for statewide office,
8,220 or more individuals in the district in the case of a candidacy for the
State Senate, and 2,410 or more individuals in the district in the case of a
candidacy for the House of Delegates. (34) (35) “Telephone bank” means telephone calls
that are targeted to the relevant electorate, other than telephone calls made
by volunteer workers, regardless of whether paid professionals designed the
telephone bank system, developed calling instructions, or trained volunteers. (35) (36) “Unaffiliated political action committee”
means a political action committee that is not affiliated with a corporation or
a membership organization.
§3-8-9. Lawful and unlawful election expenses; public opinion polls and limiting their purposes; limitation upon expenses; use of advertising agencies and reporting requirements; delegation of expenditures.
(a) No financial agent or treasurer of a political committee shall pay, give, or lend, either directly or indirectly, any money or other thing of value for any election expenses, except for the following purposes:
(1) For rent, maintenance, office equipment, and other furnishing of offices to be used as political headquarters and for the payment of necessary employees;
(2) In the case of a candidate who does not maintain a headquarters, for reasonable office expenses, including, but not limited to, filing cabinets and other office equipment, and furnishings, computers, computer hardware and software, scanners, typewriters, calculators, audio visual equipment, the rental of the use of the same, or for the payment for the shared use of same with the candidate’s business and for the payment of necessary employees;
(3) For printing and distributing books, pamphlets, circulars, and other printed matter, radio and television broadcasting, and painting, printing, and posting signs, banners, and other advertisements, including contributions to charitable, educational, or cultural events, for the promotion of the candidate or the candidate’s name, or an issue on the ballot;
(4) For renting and decorating halls for public meetings and political conventions, for advertising public meetings, and for the payment of traveling expenses of speakers and musicians at such meetings;
(5) For the necessary traveling and hotel expenses of candidates, political agents, and committees and for stationery, postage, telegrams, telephone, express, freight, and public messenger service;
(6) For preparing, circulating, and filing petitions for nomination of candidates;
(7) For examining the lists of registered voters, securing copies thereof, investigating the right to vote of the persons listed therein, and conducting proceedings to prevent unlawful registration or voting;
(8) For conveying voters to and from the polls;
(9) For securing publication in newspapers and by radio and television broadcasting of documents, articles, speeches, arguments, and any information relating to any political issue, candidate, or question or proposition submitted to a vote;
(10) For conducting public opinion poll or polls. For the purpose of this section, the phrase “conducting of public opinion poll or polls” shall mean and be limited to the gathering, collection, collation, and evaluation of information reflecting public opinion, needs, and preferences as to any candidate, group of candidates, party, issue, or issues. No such poll may be deceptively designed or intentionally conducted in a manner calculated to advocate the election or defeat of any candidate or group of candidates or calculated to influence any person or persons so polled to vote for or against any candidate, group of candidates, proposition, or other matter to be voted on by the public at any election: Provided, That nothing herein may prevent the use of the results of any such poll or polls to further, promote or enhance the election of any candidate or group of candidates or the approval or defeat of any proposition or other matter to be voted on by the public at any election;
(11) For legitimate advertising agency services, including commissions, in connection with any campaign activity for which payment is authorized by subdivisions (3), (4), (5), (6), (7), (9), and (10) of this subsection;
(12) For the purchase of memorials, flowers, or citations by political party executive committees or political action committees representing a political party;
(13) For the purchase of nominal noncash expressions of appreciation following the close of the polls of an election or within 30 days thereafter;
(14) For the payment of dues or subscriptions to any national, state, or local committee of any political party;
(15) For contributions to a county party executive committee, state party executive committee, or a caucus campaign committee;
(16) For transfers to any national, state, or local committee of any political party when that committee is acting in the role of a vendor: Provided, That no such transfer may involve any coordination between the candidate and the political party committee without being considered as a contribution;
(17) For payment for legal and accounting services rendered to a candidate or candidate committee if the services are solely related to the candidacy or campaign;
(18) For payment for food and drink for campaign-related purposes;
(19) For the payment of any required filing fees associated with the campaign, except that a candidate may not pay any fines assessed against the candidate or the candidate’s committee pursuant to this article; and
(20) For contributions to a candidate committee: Provided, That a candidate committee may not contribute to another candidate committee except as otherwise provided by §3-8-10 of this code.
(b) A political action committee may not contribute to another political action committee or receive contributions from another political action committee: Provided, That a political action committee may receive contributions from its national affiliate, if any.
(c) Every liability incurred and payment made shall be for the fair market value of the services rendered.
(d) Every advertising agency subject to the provisions of this article shall file, in the manner and form required by §3-8-5a of this code, the financial statements required by §3-8-5 of this code at the times required therein and include therein, in itemized detail, all receipts from and expenditures made on behalf of a candidate, financial agent, or treasurer of a political party committee.
(e) Any candidate may designate a financial agent by a writing duly subscribed by the candidate which shall be in such form and filed in accordance with §3-8-4 of this code.
(21) For expenses relating to caregiving services.
NOTE: The purpose of this bill is to define and provide for caregiving expenses for candidates in elections.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.