COMMITTEE SUBSTITUTE
FOR
H. B. 402
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
(Originating in the Committee on the Judiciary)
[September 10, 2005]
A BILL
to repeal §3-8-5c of the Code of West Virginia, 1931, as
amended; to amend said code by adding thereto two new
sections, designated §3-8-1a and §3-8-2b; and to amend and
reenact §3-8-2, §3-8-4, §3-8-5a, §3-8-7, §3-8-8 and §3-8-12 of
said code, all relating to regulating elections; defining
terms; requiring the persons who engage in electioneering
communications to file disclosures with the Secretary of
State; contents of statement and filing requirements;
penalties for filing delinquent or incomplete financial
statements; prohibiting political organizations expressly
advocating nomination, election or defeat of candidate or
engaging in electioneering communications from accepting
contributions in excess of one thousand dollars during primary
or general election campaign periods; and making it unlawful
to create more than one political organization with the intent
to avoid or evade contribution limitations.
Be it enacted by the Legislature of West Virginia:
That §3-8-5c of the Code of West Virginia, 1931, as amended,
be repealed; that said code be amended by adding thereto two new
sections, designated §3-8-1a and §3-8-2b; and that §3-8-2, §3-8-4,
§3-8-5a, §3-8-7, §3-8-8 and §3-8-12 of said code be amended and
reenacted, all to read as follows:
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-1a. Definitions.
As used in this article, the following terms have the
following definitions:
(1) "Ballot issue" means an issue that is before the voters
for a binding decision.
(2) "Broadcast, cable, or satellite communication" means a
communication that is publicly distributed by a television station,
radio station, cable television system, or satellite system.
(3) "Candidate" means an individual who:
(A) has filed a certificate of announcement under section
seven, article five, of this chapter or a municipal charter;
(B) has filed declaration of candidacy under section twenty-
three, article five of this chapter;
(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 to a
state, district, county or municipal office or party office to be
filled at any primary, general or special election.
(4) "Clearly identified" means that the candidate's name,
nickname, photograph, or drawing 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".
(5) "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. 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. If any individual,
committee, association, or any other organization or group of
individuals, including but not limited to, a political organization
(as defined in section 527(e)(1) of the Internal Revenue Code of
1986) makes, or contracts to make, any expenditure for any
electioneering communication; and that expenditure is coordinated
with a candidate, an authorized political committee of that
candidate, or an agent or official of any such candidate, the expenditure or contracting shall be treated as a contribution to
the candidate supported by the electioneering communication or if
the expenditure is coordinated with a State or local political
party or committee of that party or an agent or official of any
such party or committee of that party, the expenditure or
contracting shall be treated as a contribution to the State or
local political party.
(6) "Direct costs of purchasing, producing or disseminating
electioneering communications" means the following:
(A) Costs charged by a vendor including, but not limited to,
studio rental time, staff salaries, costs of video or audio
recording media, material and printing costs, postage, and talent;
or
(B) The cost of airtime on broadcast, cable or satellite radio
and television stations, cost of disseminating printed materials,
studio time, use of facilities, and the charges for a broker to
purchase the airtime.
(7) "Disclosure date" means either of the following:
(A) The first date during any calendar year when an
electioneering communication is disseminated after an entity has
made expenditures for the direct costs of purchasing, producing or
disseminating electioneering communications aggregating in excess
of five thousand dollars.
(B) Any other date during that calendar year by which an entity has made expenditures for the direct costs of purchasing,
producing or disseminating electioneering communications
aggregating in excess of five thousand dollars since the most
recent disclosure date for that calendar year.
(8) "Election" means any primary, general or special election
conducted under the provisions of this code or under the charter of
any municipality. Each primary, general, special, or local
election shall constitute a separate election for the purposes of
this article. This definition is not intended to modify or
abrogate the definition of the term "nomination" as used in this
article.
(9) (A) "Electioneering communication" means any broadcast,
cable, or satellite communication; communication in any newspaper,
magazine or other periodical publication; communication sent by
mass mailing; communication by telephone bank; or communication by
leaflet, pamphlet, handbill or flyer, that has all the following
characteristics:
(i) Refers to a clearly identified candidate for a statewide
office or the legislature.
(ii) Is publicly distributed within one of the following time
periods:
(a) sixty days before a general or special election for
the office sought by the candidate, or
(b) thirty days before a primary election for the office sought by the candidate.
(iii) Is targeted to the relevant electorate.
(B) "Electioneering communication" does not include a
communication:
(i) appearing in a news story, commentary, or editorial
distributed through the facilities of any broadcast, cable, or
satellite television, radio station, newspaper, magazine or other
periodical publication, unless such facilities or publications are
owned or controlled by any political party, political committee, or
candidate: Provided, That a news story distributed through a
broadcast, cable, or satellite television, radio station,
newspaper, magazine or other periodical publication, owned or
controlled by any political party, political committee, or
candidate is nevertheless exempt if the news story, commentary, or
editorial by any broadcasting station (including a cable television
operator, programmer or producer), newspaper, magazine, or other
periodical publication is:
(a) a bona fide news account communicated in a publication of
general circulation or on a licensed broadcasting facility; and
(b) is part of a general pattern of campaign-related news
account that give reasonably equal coverage to all opposing
candidates in the circulation, viewing or listening area.
(ii) that constitutes an expenditure or independent
expenditure required to be reported to the State Election Commission or the Secretary of State under any provision of this
article, other than section two-b, or the rules of the State
Election Commission or Secretary of State promulgated pursuant to
such provision;
(iii) that constitutes a candidate debate or forum conducted
pursuant to rules adopted by the State Election Commission, or that
solely promotes such a debate or forum and is made by or on behalf
of the person sponsoring the debate or forum;
(iv) paid for by any organization operating under section
501(c)(3) of the Internal Revenue Code of 1986;
(v) made while the legislature is in session which, incidental
to advocacy for or against a specific piece of legislation pending
before the legislature, urges the audience to communicate with a
member or members of the legislature concerning a specific piece of
legislation.
(vi) that is a statement or depiction by a membership
organization, in existence prior to the time during which the
candidate named or depicted became a candidate, made in a
membership organization's communication distributed only to the
members of that organization.
(vii) that is solely for the purpose of attracting public
attention to a product or service sold by a candidate or business
owned or operated by a candidate and does not mention an election,
the office being sought or his or her status as a candidate.
(viii) that names all of the candidates for a particular
office, contains no appearance of endorsement or opposition to
re-election of any candidate, and is intended as nonpartisan public
education focused on issues and voting history.
(10) "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 public office, or
to aid or promote the success or defeat of any political party or
principle at any election, or any proposition submitted to a vote
at a public election.
(11) "Fund-raising event" means an event such as a dinner,
reception, testimonial, cocktail party, auction or similar affair
through which contributions are solicited or received by such means
as the purchase of a ticket, payment of an attendance fee or by the
purchase of goods or services.
(12) "Independent expenditure" means an expenditure made by a
person other than a candidate or committee for a communication
which expressly advocates the election or defeat of a clearly
identified candidate but which is made independently of a
candidate's campaign and which has not been made with the
cooperation or consent of, or in consultation with, or at the
request or suggestion of, any candidate or any of his or her agents
or authorized committees. An expenditure which does not meet the criteria for independence established by this subdivision is
considered a contribution.
(13) "Mass mailing" means any mailing by United States mail,
electronic mail or facsimile that is targeted to the relevant
electorate.
(14) "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. This term shall not
include organizations that grant membership upon receiving a
contribution.
(15) "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.
(16) "Person" means an individual, partnership, committee,
association, corporation, and any other organization or group of
persons.
(17) "Political action committee" means a committee organized
by one or more individuals, corporations, associations, labor
unions or organizations for the purpose of advocating or opposing
the nomination or election of one or more candidates or the passage or defeat of one or more ballot issues.
(18) "Political party" means a political party as defined by
section eight, article one, chapter three 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.
(19) "Political purposes" means advocating or opposing the
nomination, election or defeat of one or more candidates,
supporting the retirement of the debt of a candidate or activities
of an established political party or an organization which has
declared itself a political party, supporting the administration or
activities of a political committee or advocating or opposing the
passage of a ballot issue.
(20) "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
five thousand or more individuals in the State in the case of a
candidacy for statewide office and five hundred or more individuals
in the district in the case of a candidacy for the legislature.
(21) "Telephone bank" means telephone calls that are targeted
to the relevant electorate, except when those telephone calls are
made by volunteer workers, whether or not the design of the
telephone bank system, development of calling instructions, or
training of volunteers was done by paid professionals.
§3-8-2. Accounts for receipts and expenditures in elections;
requirements for reporting independent expenditures.
(a) Except for: (1) Candidates for party committeemen and
committeewomen; in primary and other elections and (2) federal
committees required to file under the provisions 2 U. S. C. §434,
all candidates for nomination or election and all persons or
organizations of any kind advocating or opposing a the nomination,
election or defeat of any candidate shall keep for a period of one
year, all records of receipts and expenditures which are made for
political purposes. All of the receipts and expenditures are
subject to regulation by the provisions of this article. Verified
financial statements of the records and expenditures shall be made
and filed as public records by all candidates and by their
financial agents, representatives or any person acting for and on
behalf of any candidate and by the treasurers of all political
party committees.
(b) In addition to any other reporting required by the
provisions of this chapter, any person making an independent
expenditure in the amount of one thousand dollars or more for any
statewide, legislative or multicounty judicial candidate or in the
amount of five hundred dollars or more for any county office,
single-county judicial candidate, committee supporting or opposing
a candidate on the ballot in more than one county, or any municipal
candidate on a municipal election ballot, which is made after the eleventh day but more than twelve hours before the day of any
election shall be reported report the expenditure, on a form
prescribed by the Secretary of State, within twenty-four hours
after the expenditure is made or debt is incurred for a
communication, to the Secretary of State by hand-delivery,
facsimile or other means to assure receipt by the Secretary of
State within the 24-hour period.
(c) For purposes of this section, "independent expenditure"
means an expenditure made by a person other than a candidate or
committee for a communication which expressly advocates the
election or defeat of a clearly identified candidate but which is
made independently of a candidate's campaign and which has not been
made with the cooperation or consent of, or in consultation with,
or at the request or suggestion of, any candidate or any of his or
her agents or authorized committees. An expenditure which does not
meet the criteria for independence established in this subsection
is considered a contribution
(d) (c) Any independent expenditure must include a clear and
conspicuous public notice which identifies the name of the person
who paid for the expenditure and states that the communication is
not authorized by the candidate or his or her committee.
§3-8-2b. Disclosure of electioneering communications.
(a) Every person who has spent a total of five thousand
dollars or more for the direct costs of purchasing, producing or disseminating electioneering communications during any calendar
year shall, within twenty-four hours of each disclosure date, file
with the Secretary of State a statement which contains:
(1) The name of the person making the expenditure, the name of
any person sharing or exercising direction or control over the
activities of the person making the expenditure and the name of the
custodian of the books and accounts of the person making the
expenditure;
(2) If the expenditure is not made by an individual, the
principal place of business of the partnership, committee,
association, corporation, organization or group which made the
expenditure;
(3) The amount of each expenditure of more than one thousand
dollars for electioneering communications during the period covered
by the statement and the name of the person to whom the expenditure
was made;
(4) The elections to which the electioneering communications
pertain and the names, if known, of the candidates identified or to
be identified therein; and
(5) The names and address of any other contributors who
contributed a total of more than one thousand dollars between the
first day of the preceding calendar year and the disclosure date
and whose contributions were used to pay for electioneering
communications.
(b) With regard to the contributors required to be listed
pursuant to subdivision (5), subsection (a) of this section, the
statement shall also include:
(1) The month, day and year that the contributions of any
single contributor exceeded two hundred fifty dollars;
(2) The name and address of the contributor and, if the
contributor is a political action committee, the name the political
action committee registered with the State Election Commission;
(3) If the contributor is an individual, the name and address
of the individual's current employer and occupation, if any, or, if
the individual is self-employed, the individual's occupation and
the name and address of the individual's business, if any;
(4) A description of the contribution, if other than money;
(5) The value in dollars and cents of the contribution.
(c)(1) Any person who makes a contribution for the purpose of
funding the direct costs of purchasing, producing or disseminating
an electioneering communication under this section shall, at the
time the contribution is made, provide his or her name and address
to the recipient of the contribution;
(2) Any individual who makes contributions totaling two
hundred fifty dollars or more between the first day of the
preceding calendar year and the disclosure date for the purpose of
funding the direct costs of producing or airing electioneering
communications shall, at the time the contribution is made, provide the name of the his or her current employer, if any, or, if the
individual is self-employed, his or her occupation and the name of
his or her business, if any, to the recipient of the contribution.
(d) In each electioneering communication, a statement shall
appear or be presented in a clear and conspicuous manner that:
(1) Clearly indicates that the electioneering communication is
not authorized by the candidate or the candidate's campaign
committee; and
(2) Clearly identifies the person making the expenditure for
the electioneering communication.
Provided, That when an electioneering communication appears on
or is disseminated by broadcast, cable, or satellite transmission,
the statement required by this subsection must be spoken clearly
and appear in clearly readable writing at the end of the
communication.
(e) Any coordinated electioneering communication is an in-
kind contribution, subject to the applicable contribution limits
prescribed in sections eight and twelve of this article, to the
candidate by the person paying the direct costs of producing or
airing the communication.
(f) Every person who has spent a total of five thousand
dollars or more for the direct costs of purchasing, producing or
disseminating electioneering communications during any calendar
year shall maintain all campaign related financial records and receipts for a period of one year following the filing of a
disclosure pursuant to subsection (a) of this section. The records
and receipts shall be available to the Secretary of State for the
purposes of an audit as provided in section seven, article eight,
chapter three of this code. Any person required to retain records
pursuant to this subsection who willfully fails to maintain such
records and receipts is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five hundred
dollars, or confined in jail for not more than one year, or both
fined and confined.
(g) Within five business days after receiving a disclosure of
electioneering communications statement pursuant to this section,
the State Election Commission shall make information in the
statement available to the public through the Internet.
(h) For the purposes of this section, a person is considered
to have made an expenditure if the person has entered into a
contract to make the expenditure.
(i) The Secretary of State is hereby directed to propose rules
and emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code in
accordance with the provisions of this section.
§3-8-4. Treasurers and financial agents; written designation
requirements
.
(a) No person shall may act as the treasurer of any political committee, or as financial agent for any candidate for nomination
or election to any statewide office, to be filled by the voters of
the entire state, or candidates for nomination or election for to
any office encompassing an election district larger than a county
or candidates for nomination for to any legislative office or for
any person or organization advocating or opposing the nomination,
election or defeat of any candidate for an office encompassing an
election district larger than a county, unless a written statement
designating him or her that person as the treasurer or financial
agent is filed with the Secretary of State at least twenty-eight
days before the election at which he or she that person is to act
as a financial agent or treasurer and must be is received by the
Secretary of State before midnight, Eastern Standard Time, of that
day or if mailed, shall be is postmarked before that hour:
Provided, That a change of treasurer or financial agent may be made
at any time by filing a written statement with the Secretary of
State.
(b) No person shall may act as treasurer of any committee or
as financial agent for any candidate to be nominated or elected by
the voters of a county or a district therein, except legislative
candidates, or as the treasurer or financial agent for a candidate
for the nomination or election to any other office, unless a
written statement designating him or her as the treasurer or
financial agent is filed with the clerk of the county commission at least twenty-eight days before the election at which he or she is
to act and must be is received before midnight, Eastern Standard
Time, of that day or if mailed, shall be is postmarked before that
hour: Provided, That a change of treasurer may be made at any time
by filing a written statement with the clerk of the county
commission.
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, a filing designating a treasurer or financial
agent for a state or county political executive committee may be
made anytime before the committee either accepts or spends funds on
behalf of the committee. Once a designation is made by a state or
county political executive committee, no additional designations
are required under this section until a successor treasurer or
financial agent is designated. A state or county political
executive committee may terminate a designation made pursuant to
this section by making a written request to terminate the
designation and by stating in the request that the committee has no
funds remaining in the committee's account. This written request
shall be made filed with either the Secretary of State or the clerk
of the county commission as provided by subsections (a) and (b) of
this section.
(d) As used in this article:
The term "person" means an individual, partnership, committee,
association, corporation, and any other organization or group of persons; and
The term "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 public office, or
to aid or promote the success or defeat of any political party or
principle at any election, or any proposition submitted to a vote
at a public election.
§3-8-5a. Information required in financial statement.
(a) Each financial statement required by the provisions of
this article shall contain only the following information:
(1) The first name, middle initial, if any, and last name
residence and mailing address and telephone number of each
candidate, financial agent, treasurer or person and the full name,
address and telephone number of each association, organization or
committee filing a financial statement.
(2) The balance of cash and any other sum of money on hand at
the beginning and the end of the period covered by the financial
statement.
(3) The first name middle initial, if any, and the last name
in the case of an individual, and the full name of each firm,
association or committee of any person making a contribution and
the amount of such the contribution. of such individual, firm,
association or committee, and, if the aggregate of the sum or sums contributed by any one such individual, firm, association or
committee exceeds If the total contributions of any one person
exceed two hundred fifty dollars, there shall also be reported the
residence and mailing address of the contributor and, in the case
of if the contributor is an individual, the his or her major
business affiliation and occupation shall also be reported. A
contribution totaling more than fifty dollars of currency of the
United States or currency of any foreign country by any one
contributor is prohibited and a violation of this provision is
subject to section five-d of this article. The report statement on
which contributions are required to be reported by this subdivision
shall may not distinguish between contributions made by individuals
and contributions made by partnerships, firms, associations or
committees, corporations, organizations or groups.
(4) The total amount of contributions received during the
period covered by the financial statement.
(5) The first name, middle initial, if any, and the last name
residence and mailing address of any individual or the full name
and mailing address of each lending institution making a loan or of
the spouse cosigning a loan, as appropriate, the amount of any loan
received, the date and terms of the loan, including the interest
and repayment schedule, and a copy of the loan agreement.
(6) The first name, middle initial, if any, and the last name
residence and mailing address of any individual or the full name and mailing address of each partnership, firm, association, or
committee, corporation, organization or group having previously
made or cosigned a loan for which payment is made or a balance is
outstanding at the end of the period, together with the amount of
repayment on the loan made during the period and the balance at the
end of the period.
(7) The total outstanding balance of all loans at the end of
the period.
(8) The first name, middle initial, if any, and the last name
residence and mailing address of any individual, or the full name
and mailing address of each partnership, firm, association, or
committee, corporation, organization or group to whom each
expenditure was made or liability incurred, together with the
amount and purpose of each expenditure or liability incurred and
the date of each transaction.
(9) The total expenditure for the nomination, election or
defeat of a candidate or any person or organization advocating or
opposing the nomination, election or defeat of any candidate or the
passage or defeat of any issue, thing or item to be voted upon in
whose behalf an expenditure was made or a contribution was given
for the primary or other election.
(10) The total amount of expenditures made during the period
covered by the financial statement.
(b) Any unexpended balance at the time of making the financial statements herein provided for shall be properly accounted for in
that financial statement and shall appear as a beginning balance in
the next following financial statement.
(c) Each financial statement required by this section shall
contain a separate section setting forth the following information
for each fund-raising event held during the period covered by the
financial statement:
(1) The type of event, date held and address and name, if any,
of the place where the event was held.
(2) All of the information required by subdivision (3),
subsection (a) of this section.
(3) The total of all moneys received at the fund-raising
event.
(4) The expenditures incident to the fund-raising event.
(5) The net receipts of the fund-raising event.
(d) When any lump sum payment is made to any advertising
agency or other disbursing person who does not file a report of
detailed accounts and verified financial statements as required in
this section, such lump sum expenditures shall be accounted for in
the same manner as provided for herein.
(e) Any contribution or expenditure made by or on behalf of a
candidate for public office, to any other candidate or committee
for a candidate for any public office in the same election shall be
accounted for in accordance with the provisions of this section.
(f) No person, firm, association or committee may make any
contribution except from their his or her own funds, unless such
person firm, association or committee discloses in writing to the
person required to report under this section the first name middle
initial, if any, and the last name in the case of an individual or
the full name in case of a firm, association or committee,
residence, and mailing address, and the major business affiliation
and occupation of the person firm, association or committee which
furnished the funds to such the contributor. All such disclosures
shall be included in the statement required by this section.
(g) Any firm, association, committee or fund permitted by
section eight of this article to be a political committee shall
disclose on the financial statement its corporate or other
affiliation.
(h) No contribution may be made, directly or indirectly, in a
fictitious name, anonymously or by one person through an agent,
relative or other person so as to conceal the identity of the
source of the contribution or in any other manner so as to effect
concealment of the contributor's identity.
(i) No person firm, association or committee may accept any
contribution for the purpose of influencing the nomination,
election or defeat of a candidate or for the passage or defeat of
any issue or thing to be voted upon unless the identity of the
donor and the amount of the contribution is known and reported.
(j) When any candidate, organization, committee or person
receives any an anonymous contribution which cannot be returned
because the donor cannot be identified, that contribution shall be
donated to the general revenue fund of the State. Any anonymous
contribution shall be recorded as such on the candidate's financial
statement, but may not be expended for election expenses. At the
time of filing, the financial statement shall include a statement
of distribution of anonymous contributions, which total amount
shall equal the total of all anonymous contributions received
during the period.
(k) Any membership organization which raises funds for
political purposes by payroll deduction, assessing them as part of
its membership dues or as a separate assessment, may report the
amount raised as follows:
(1) If the portion of dues or assessments designated for
political purposes equals twenty-five dollars or less per member
over the course of a calendar year, the total amount raised for
political purposes through membership dues or assessments during
the period is reported by showing the amount required to be paid by
each member and the number of members.
(2) If the total payroll deduction for political purposes of
each participating member equals twenty-five dollars or less over
the course of a calendar or fiscal year, as specified by the
organization, the organization shall report the total amount received for political purposes through such payroll deductions
during the reporting period and, to the maximum extent possible,
the amount of each yearly payroll deduction contribution level and
the number of members contributing at each such specified level.
The membership organization shall maintain records of the name and
yearly payroll deduction amounts of each participating member.
(3) If any member contributes to the membership organization
through individual voluntary contributions by means other than
payroll deduction, membership dues, or assessments as provided in
this subsection, the reporting requirements of subdivision (3),
subsection (a) of this section shall apply. Funds raised for
political purposes must be segregated from the funds for other
purposes and listed in its report.
(l) For purposes of this section:
(1) "Political purposes" means advocating or opposing the
nomination, election or defeat of one or more candidates,
supporting the retirement of the debt of a candidate or activities
of an established political party or an organization which has
declared itself a political party, supporting the administration or
activities of a political committee or advocating or opposing the
passage of a ballot issue.
(2) "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. This term shall not include
organizations that grant membership upon receiving a contribution.
(3) "Fund-raising event" means an event such as a dinner,
reception, testimonial, cocktail party, auction or similar affair
through which contributions are solicited or received by such means
as the purchase of a ticket, payment of an attendance fee or by the
purchase of goods or services.
(m) (l) Notwithstanding the provisions of section five of this
article or of the provisions of this section to the contrary, an
alternative reporting procedure may be followed by a political
party executive committee or a political action committee
representing a political party in filing financial reports for
fund-raising events if the total profit does not exceed five
thousand dollars per year. A political party executive committee or
a political action committee representing a political party may
report gross receipts for the sale of food, beverages, services,
novelty items, raffle tickets or memorabilia, except that any
receipt of more than fifty dollars from an individual or
organization shall be reported as a contribution. A political party
executive committee or a political action committee representing a
political party using this alternative method of reporting shall
report: (i) The name of the committee; (ii) the type of
fund-raising activity undertaken; (iii) the location where the activity occurred; (iv) the date of the fund raiser; (v) the name
of any individual who contributed more than fifty dollars worth of
items to be sold; (vi) the name and amount received from any person
or organization purchasing more than fifty dollars worth of food,
beverages, services, novelty items, raffle tickets or memorabilia;
(vii) the gross receipts of the fund raiser; and (viii) the date,
amount, purpose and name and address of each person or organization
from whom items with a fair market value of more than fifty dollars
were purchased for resale.
§3-8-7. Failure to file statement; delinquent or incomplete filing;
criminal and civil penalties.
(a) Any person, candidate, financial agent or treasurer of a
political party committee who fails to file a sworn, itemized
statement required by this article within the time limitations
specified in this article or who willfully files a grossly
incomplete or grossly inaccurate statement shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than five hundred dollars or imprisoned in the county jail for not
more than one year, or both, in the discretion of the court. Forty
days after any such primary or other election, the Secretary of
State, or county clerk, or municipal recorder, as the case may be,
shall give notice of any failure to file such a sworn statement or
the filing of any grossly incomplete or grossly inaccurate
statement by any person, candidate, financial agent or treasurer of a political party committee and forward copies of any grossly
incomplete or grossly inaccurate statement to the prosecuting
attorney of the county where such the person, candidate, financial
agent, or treasurer resides, is located or has its principal place
of business.
(b) (1) Any person, candidate, financial agent or treasurer of
a political party committee who fails to file a sworn, itemized
statement as provided required in this article or who files a
grossly incomplete or grossly inaccurate statement may be assessed
a civil penalty by the Secretary of State of twenty-five dollars a
day for each day after the due date the statement is delinquent,
grossly incomplete or grossly inaccurate. Forty days after any
such primary or other election, the county clerk shall give notice
to the Secretary of State of any failure to file such a sworn
statement or the filing of any grossly incomplete or grossly
inaccurate statement by any person, candidate, financial agent or
treasurer of a political party committee and forward copies of such
delinquent, incomplete or inaccurate statements to the Secretary of
State.
(2) A civil penalty assessed pursuant to the provisions of
this section shall be payable to the State of West Virginia and is
collectable in any manner authorized by law for the collection of
debts.
(3) The Secretary of State may negotiate and enter into settlement agreements for the payment of civil penalties assessed
as a result of the filing of a delinquent, grossly incomplete or
inaccurate statement.
(4) The Secretary of State and county clerk may review and
audit any sworn statement required to be filed pursuant to the
provisions of this article. The State Election Commission shall
propose legislative rule rules for promulgation, in accordance with
the provisions of chapter twenty-nine-a of this code, to establish
procedures for the assessment of civil penalties as provided in
this section.
(c) No candidate nominated at a primary election who has
failed to file a sworn statement, as required by the provisions of
this article, shall have his or her name placed on the official
ballot for the ensuing election, unless there has been filed by or
on behalf of such candidate, or by his or her financial agent, if
any, the financial statement relating to nominations required by
this article. It is unlawful to issue a commission or certificate
of election, or to administer the oath of office, to any person
elected to any public office who has failed to file a sworn
statement as required by the provisions of this article and no such
person may enter upon the duties of his or her office until he or
she has filed such statement, nor may he or she receive any salary
or emolument for any period prior to the filing of such statement.
§3-8-8. Corporation contributions forbidden; exceptions; penalties; promulgation of rules
and regulations; additional powers of
State Election Commission.
(a) No officer of any corporation, or agent or person on
behalf of such corporation, whether incorporated under the laws of
this or any other state, or foreign country, shall may pay, give or
lend, or authorize to be paid, given or lent, any money or other
thing of value belonging to such corporation, to any candidate,
financial agent or political committee or other person, for the
payment of any primary or other election expenses whatever. No
person shall may solicit or receive such payment, contribution or
other thing from any corporation, officer or agent thereof, or
other person acting on behalf of such corporation.
(b)(1) The provisions of this section shall not be deemed to
prohibit:
(A) Direct communications, other than by newspapers of general
circulation, radio, television or billboard advertising likely to
reach the general public, by a corporation to its stockholders and
executive or administrative personnel and their families on any
subject;
(B) Nonpartisan registration and get-out-the-vote campaigns by
a corporation aimed at its stockholders and executives or
administrative personnel and their families; and
(C) The solicitation of contributions to a separate segregated
fund to be utilized for political purposes by any corporate officer, agent or any person on behalf of a corporation. Any such
separate segregated fund shall be deemed to be a political
committee for the purpose of this article and subject to all
reporting requirements thereof.
(2) It shall be unlawful:
(A) For such a separate segregated fund to make a contribution
or expenditure by utilizing money or anything of value secured by
physical force, job discrimination, financial reprisal or the
threat of force, job discrimination or financial reprisal, or as a
condition of employment, or by moneys obtained in any commercial
transaction;
(B) For any person soliciting a stockholder, executive or
administrative personnel and members of their family for a
contribution to such fund to fail to inform such person of the
political purposes of such the separate segregated fund at the time
of such solicitation;
(C) For any person soliciting any other person for a
contribution to such a separate segregated fund to fail to inform
such the other person at the time of such the solicitation of his
or her right to refuse to so contribute without any reprisal;
(D) For a corporation or a separate segregated fund
established by a corporation to solicit contributions to such the
fund from any person other than its stockholders and their families
and its executive or administrative personnel and their families or to contribute any corporate funds;
(E) For a corporation or a separate segregated fund
established by a corporation to receive contributions to such a the
fund from any person other than its stockholders and their
immediate families and its executive or administrative personnel
and their immediate families;
(F) For a corporation to engage in job discrimination or to
discriminate in job promotion or transfer because of an employee's
failure to make a contribution to such a separate segregated fund;
(G) For such a separate segregated fund directly or indirectly
to make any contribution, directly or indirectly, in excess of the
value of one thousand dollars in connection with any campaign for
nomination or election to or on behalf of any elective office in
the state or any of its subdivisions, or in connection with or on
behalf of any committee or other organization or person engaged in
furthering, advancing or advocating the nomination or election of
any candidate for any such office; and
(H) For a corporation to pay, give or lend, or authorize to be
paid, given or lent, any moneys or other things of value belonging
to such the corporation to such a separate segregated fund for any
purpose. This provision shall not be deemed to prohibit such a
separate segregated fund from using the property, real or personal,
facilities and equipment of a corporation solely to establish,
administer and solicit contributions to the fund, subject to the rules of the State Election Commission as provided in subsection
(d) of this section: Provided, That any such corporation shall also
permit any group of employees thereof represented by a bona fide
political action committee to use the real property of such the
corporation solely to establish, administer and solicit
contributions to the fund of such the political action committee,
subject to the rules and regulations of the State elections
Election Commission as provided in subsection (d) of this section.
No such property, real or personal, facilities, equipment,
materials or services of a corporation shall may be utilized used
for the purpose of influencing any voter or voters to vote for a
particular candidate or in any particular manner, or upon any
particular side of any question to be decided at any election, or
to influence the result of any such election.
(I) Public utility companies and railroad companies may not
form funds or political action committees in support of political
candidates or parties, and may not use corporate property, real or
personal, facilities, equipment, materials or services of said
utility to establish, administer or solicit contributions to such
fund or political action committee.
(3) For the purposes of this section, the term "executive or
administrative personnel" means individuals employed by a
corporation who are paid on a salary rather than hourly basis and
who have policy-making, managerial, professional or supervisory responsibilities.
(c) Any person or corporation violating any provision of this
section shall be guilty of a misdemeanor and, on conviction, shall
be fined not more than five ten thousand dollars. No corporation
shall may reimburse any person the amount of any such fine imposed
pursuant to this section.
(d) The To ensure uniform administration and application of
the provisions of this section and of those of the Federal Election
Campaign Act Amendments of 1976 relating to corporate
contributions, the State Election Commission shall promulgate
propose rules and regulations for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to implement the provisions of this section,
which rules and regulations consistent, insofar as practicable,
shall be the same as with the rules and regulations promulgated by
the Federal Election Commission to carry out those similar or
identical provisions of 2 U.S.C. §441b. which are similar or
identical to those provisions contained in this section in order
that the provisions of this section and the regulations promulgated
thereunder and the similar provisions of 2 U.S.C. §441b and the
regulations promulgated thereunder may be uniformly administered
and applied to corporations subject to the cited section of the
Federal Election Campaign Act Amendments of 1976 and to this
section. The State Election Commission shall promulgate such rules and regulations not later than sixty days after the effective date
of this subsection and in doing so shall be governed by the
provisions of article three, chapter twenty-nine-a of this code
(e) In addition to it's the powers and duties as set forth in
article one-A one-a of this chapter, the State Election Commission
shall have has the following powers and duties:
1. (1) To investigate, upon complaint or on its own
initiative, any alleged violations or irregularities of this
article.
2. (2) To administer oaths and affirmations, issue subpoenas
for the attendance of witnesses, issue subpoenas duces tecum to
compel the production of books, papers, records and all other
evidence necessary to any investigation.
3. (3) To involve the aid of any circuit court in the
execution of its subpoena power.
4. (4) To report any alleged violations of this article to the
appropriate prosecuting attorney having jurisdiction, which
prosecuting attorney shall present to the grand jury such alleged
violations, together with all evidence relating thereto, no later
than the next term of court after receiving the report.
(f) It shall be the duty of The Attorney General to shall,
when requested, provide such legal and investigative assistance to
the State Election Commission. as it may request and require
(g) Any investigation either upon complaint or initiative, shall be conducted in an executive session of the State Election
Commission and shall remain undisclosed except upon an indictment
by a grand jury.
(h) Any person who shall disclose discloses the fact of any
complaint, investigation or report or any part thereof, or any
proceedings thereon, shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one thousand
dollars, nor more than five thousand dollars, and shall be
imprisoned in the county jail not less than six months nor more
than one year.
§3-8-12. Additional acts forbidden; circulation of written matter;
newspaper advertising; solicitation of contributions; intimidation
and coercion of employees; promise of employment or other benefits;
limitations on contributions; public contractors; penalty.
(a) No person may publish, issue or circulate, or cause to be
published, issued or circulated, any anonymous letter, circular,
placard, radio or television advertisement or other publication
expressly advocating the election or defeat of a clearly identified
candidate.
(b) No owner, publisher, editor or employee of a newspaper or
other periodical may insert, either in its advertising or reading
columns, any matter, paid for or to be paid for, which tends to
influence the voting at any election, unless directly designating
it as a paid advertisement and stating the name of the person authorizing its publication and the candidate in whose behalf it is
published.
(c) No person may, in any room or building occupied for the
discharge of official duties by any officer or employee of the
state or a political subdivision of the state, solicit orally or by
written communication delivered within the room or building, or in
any other manner, any contribution of money or other thing of value
for any party or political purpose, from any postmaster or any
other officer or employee of the federal government, or officer or
employee of the state, or a political subdivision of the state. No
officer, agent, clerk or employee of the federal government, or of
this state, or any political subdivision of the state, who may have
charge or control of any building, office or room, occupied for any
official purpose, may knowingly permit any person to enter any
building, office or room, occupied for any official purpose for the
purpose of soliciting or receiving any political assessments from,
or delivering or giving written solicitations for, or any notice
of, any political assessments to, any officer or employee of the
state, or a political subdivision of the state.
(d) Except as provided in section eight of this article, no
person entering into any contract with the state or its
subdivisions, or any department or agency of the state, either for
rendition of personal services or furnishing any material, supplies
or equipment or selling any land or building to the state, or its subdivisions, or any department or agency of the state, if payment
for the performance of the contract or payment for the material,
supplies, equipment, land or building is to be made, in whole or in
part, from public funds may, during the period of negotiation for
or performance under the contract or furnishing of materials,
supplies, equipment, land or buildings, directly or indirectly,
make any contribution to any political party, committee or
candidate for public office or to any person for political purposes
or use; nor may any person or firm solicit any contributions for
any purpose during any period.
(e) No person may, directly or indirectly, promise any
employment, position, work, compensation or other benefit provided
for, or made possible, in whole or in part, by act of the
Legislature, to any person as consideration, favor or reward for
any political activity for the support of or opposition to any
candidate, or any political party in any election.
(f) No person may, directly or indirectly, make any
contribution in excess of the value of one thousand dollars in
connection with any campaign for nomination or election to or on
behalf of any statewide or national elective office, or in excess
of the value of one thousand dollars, in connection with any other
campaign for nomination or election to or on behalf of any other
elective office in the state or any of its subdivisions, or in
connection with or on behalf of any committee or other organization or person engaged in furthering, advancing or advocating the
nomination or election of any candidate for any of the offices.
(g)A political organization (as defined in Section 527(e)(1)
of the Internal Revenue Code of 1986)that engages in activities
either expressly advocating the election or defeat of a clearly
identified candidate for a statewide office or the Legislature or
in electioneering communications may not accept contributions
totaling more than one thousand dollars from any person for the
primary election campaign period or contributions totaling more
than one thousand dollars from any person for the general election
campaign period. Nothing in this subsection is intended to limit
or abrogate the ability of an individual to exercise their right of
free speech by expending personal funds on their own behalf to
engage in activities either expressly advocating the election or
defeat of a clearly identified candidate for a statewide office or
the legislature, or in electioneering communications subject to the
reporting and disclosure requirements of this article.
(g) (h) It shall be unlawful for any person to create,
establish or organize more than one political organization (as
defined in Section 527(e)(1) of the Internal Revenue Code of 1986)
with the intent to avoid or evade the contribution limitations
contained in subsection (g) of the section.
(i)(1) Notwithstanding the provisions of subsection (f) of
this section to the contrary, the aggregate contributions made to a state party executive committee or state party legislative caucus
committee are to be permitted only pursuant to the limitations
imposed by the provisions of this subsection.
(2) No no person may, directly or indirectly, make
contributions to a state party executive committee or state party
legislative caucus committee which, in the aggregate, exceed the
value of one thousand dollars in any calendar year.
(h) (j) The limitations on contributions contained in this
section do not apply to transfers between and among a state party
executive committee or a state party's legislative caucus political
committee from national committees of the same political party:
Provided, That transfers permitted by this subsection may not
exceed fifty thousand dollars in the aggregate in any calendar year
to any state party executive committee or state party legislative
caucus political committee: Provided, however, That the moneys
transferred may only be used for voter registration and get-out-
the-vote activities of the state committees.
(i) (k) No person may solicit any contribution from any
nonelective salaried employee of the state government or of any of
its subdivisions or coerce or intimidate any nonelective salaried
employee into making a contribution. No person may coerce or
intimidate any nonsalaried employee of the state government or any
of its subdivisions into engaging in any form of political
activity. The provisions of this subsection may not be construed to prevent any employee from making a contribution or from engaging in
political activity voluntarily, without coercion, intimidation or
solicitation.
(j) (l) No person may solicit a contribution from any other
person without informing the other person at the time of the
solicitation of the amount of any commission, remuneration or other
compensation that the solicitor or any other person will receive or
expect to receive as a direct result of the contribution being
successfully collected. Nothing in this subsection may be construed
to apply to solicitations of contributions made by any person
serving as an unpaid volunteer.
(k)(m) No person may place any letter, circular, flyer,
advertisement, election paraphernalia, solicitation material or
other printed or published item tending to influence voting at any
election in a roadside receptacle unless it is: (1) Approved for
placement into a roadside receptacle by the business or entity
owning the receptacle; and (2) contains a written acknowledgment of
the approval. This subdivision does not apply to any printed
material contained in a newspaper or periodical published or
distributed by the owner of the receptacle. The term "roadside
receptacle" means any container placed by a newspaper or periodical
business or entity to facilitate home or personal delivery of a
designated newspaper or periodical to its customers.
(l)(n) Any person violating any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in a regional
or county jail for not more than one year, or, in the discretion of
the court, be subject to both fine and confinement.
(o) The limitations on contributions established by this
section do not apply to contributions made for the purpose of
advocating a position on a ballot issue, including a constitutional
amendment.