COMMITTEE SUBSTITUTE
FOR
H. B. 4130
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
(Originating in the Committee on Finance)
[February 26, 2010]
A BILL to amend and reenact §3-1A-1, §3-1A-4 and §3-1A-5 of the
Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new article, designated §3-12-1,
§3-12-2, §3-12-3, §3-12-4, §3-12-5, §3-12-6, §3-12-7, §3-12-8,
§3-12-9, §3-12-10, §3-12-11, §3-12-12, §3-12-13, §3-12-14,
§3-12-15, §3-12-16 and §3-12-17, all relating to creating the
West Virginia Supreme Court of Appeals Public Campaign
Financing Pilot Program; giving additional duties and per diem
pay to the State Election Commission; authorizing the State
Election Commission to use video, telephone and Internet
conferencing; providing alternative public campaign financing
option for candidates for the West Virginia Supreme Court of
Appeals in 2012; setting forth short title and certain
legislative findings and declarations; defining terms;
specifying that the provisions of the act are applicable to
candidates for the West Virginia Supreme Court of Appeals in
the 2012 primary and general elections; establishing the Supreme Court of Appeals Public Campaign Financing Fund and
sources of revenue for the fund; authorizing transfer from the
Purchasing Card Administration Fund to the fund for three
years; authorizing tax checkoff program; authorizing attorney
fees; authorizing fair administration of justice court fees;
requiring an applicant for public campaign financing 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 candidates; allowing
participating candidates to raise funds from private sources
and spend exploratory contributions; requiring candidates
seeking public campaign funds to collect a required number of
qualifying contributions; requiring candidates to provide
detailed receipts to contributors and to the state Election
Commission for exploratory and qualifying contributions;
requiring participating candidates to comply with all
provisions of the act; requiring the state Election Commission
to certify eligible candidates and setting forth the procedure
for certification; providing for challenges to certification;
providing for revocation of certification; providing for
withdrawal from program; 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;
providing for repayment of funds under certain circumstances;
prohibiting the use of personal funds for certain purposes;
permitting qualified candidates to raise funds from private
sources when there is insufficient money in the Public
Campaign Financing Fund to make a complete distribution to all
qualified candidates; requiring certain disclosures; requiring
candidates to keep records and report to the state Election
Commission; providing for additional funds when independent
expenditures or opponent expenditures exceed certain limits;
setting forth certain duties of the state Election Commission
and the Secretary of State; authorizing legislative rules;
authorizing the creation of a voters' guide; 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 expiring
the act in 2013.
Be it enacted by the Legislature of West Virginia:
That §3-1A-1, §3-1A-4 and §3-1A-5 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; and that said
code be amended by adding thereto a new article, designated
§3-12-1, §3-12-2, §3-12-3, §3-12-4, §3-12-5, §3-12-6, §3-12-7,
§3-12-8, §3-12-9, §3-12-10, §3-12-11, §3-12-12, §3-12-13, §3-12-14,
§3-12-15, §3-12-16 and §3-12-17, all to read as follows:
ARTICLE 1A. STATE ELECTION COMMISSION AND SECRETARY OF STATE.
§3-1A-1. Election commission continued; composition; chairperson;
traveling expense.
The "State Election Commission," heretofore created, is
hereby
continued and
on and after the effective date of this section shall
be is composed of the Secretary of State, and four persons
appointed by the Governor, by and with the advice and consent of
the Senate. The commission shall from this membership elect a
chairman for a term of two years. Each member of the commission
shall be reimbursed for all reasonable and necessary expenses
actually incurred in the performance of his
or her duties as a
member of the commission.
§3-1A-4. Office and meetings of commission.
(a) The office and place of meeting of the commission
shall be
is the office of the Secretary of State in the State Capitol.
The
commission may also conduct meetings via video, telephone or
Internet conferencing.
(b) The commission shall hold such meetings as may be called
by the chairman, the Governor or the Secretary of State.
§3-1A-5. Powers and duties of commission; legislative rules.
(a) The commission
shall have has the power and duty to
approve or disapprove applications for approval of any voting
machine as provided in section seven, article four of this chapter.
(b) The commission also shall serve as a body advisory to the
Secretary of State, and, as such, shall have the following powers
and duties:
(1) To recommend policies and practices pertaining to the
registration of voters and the conduct of elections generally;
(2) To review the work of the office of Secretary of State
pertaining to the duties of that office with respect to elections,
and for this purpose to have access at reasonable times to
pertinent records, books, papers and documents;
(3) To consider and study the election practices of other
jurisdictions, with a view to determining the techniques used in
eliminating fraud in elections and in simplifying election
procedures;
(4) To advise or make recommendations to the Governor relative
to election practices and policy in the state;
and
(5) To advise the Secretary of State on carrying out the
duties to which he or she is assigned pursuant to the West Virginia
Supreme Court of Appeals Public Campaign Financing Pilot Program,
established in article twelve of this chapter;
(6) To carry out the duties assigned to the commission by the
West Virginia Supreme Court of Appeals Public Campaign Financing
Pilot Program, established in article twelve of this chapter; and
(5) (7) To keep minutes of the transactions of each meeting of
the commission, which shall be public records and filed with the
Secretary of State.
(c) It
shall be is the commission's further duty to prepare
and distribute in its name, within available appropriations and
upon the recommendation of the Secretary of State, nonpartisan
educational material to inform voters of the importance of voting, to encourage voters to vote, to inform voters of election laws and
procedures, and to inform voters of the effect of any public
question, Constitutional amendment or bond issue that is to be
voted upon by all the voters of the state and that has been
authorized to be placed upon the ballot by the Legislature, and
manuals to assist county commissions, ballot commissioners, circuit
and county clerks and other election officials in the proper
performance of their duties in the conduct of elections.
(d) The commission shall
promulgate such propose legislative
rules, in accordance with the provisions of chapter twenty-nine-a
of this code, as may be necessary to standardize and make effective
the administration of the provisions of article eight of this
chapter, and may
promulgate such propose or adopt other rules, in
accordance with the provisions of chapter twenty-nine-a of this
code, relating to the conduct and administration of elections as
the commission
may determine determines to be advisable.
All rules
required or permitted to be promulgated by the commission by the
provisions of this section shall be submitted on or before the
first day of August, one thousand nine hundred ninety-five, to the
Legislature for review by the legislative rule-making review
committee and approval by the Legislature.
(e) Meetings of the commission conducting for the purpose of
confirming the initial eligibility of individual candidates to
receive public campaign financing under the West Virginia Supreme
Court of Appeals Public Campaign Fund or the authorization of
supplemental distributions pursuant to the provisions of article twelve, chapter three of this Code and their ability to receive
supplemental distributions pursuant to the provisions of that same
article are expressly exempted from the public notice and public
meeting requirements of article nine-a, chapter six of this Code.
ARTICLE 12. WEST VIRGINIA SUPREME COURT OF APPEALS PUBLIC CAMPAIGN
FINANCING PILOT PROGRAM.
§3-12-1. Short title.
This article is known as the "West Virginia Supreme Court of
Appeals Public Campaign Financing Pilot Program." The pilot
program begins with the exploratory period for the 2012 primary
election and continues through the 2012 general election.
§3-12-2. Legislative findings and declarations.
The Legislature finds and declares the following:
(1) Current campaign finance laws permit candidates to spend
unlimited amounts of money raised from private sources;
(2) Current campaign finance laws permit certain independent
parties to raise and spend unlimited amounts of money to influence
the outcome of elections;
(3) Over the last decade, fundraising and campaign
expenditures in elections for a seat on the Supreme Court of
Appeals have dramatically increased in West Virginia;
(4) In 2000, candidates running for a seat on the Supreme
Court of Appeals raised a total of $1.4 million;
(5) In 2004, candidates running for a seat on the Supreme
Court of Appeals raised a total of $2.8 million;
(6) In 2008, candidates running for a seat on the Supreme
Court of Appeals raised a total of $3.3 million;
(7) As spending by candidates and independent parties
increases, so too does the perception that contributors and
interested third parties hold too much influence over the judicial
process;
(8) The detrimental effects of large amounts of spending by
candidates and independent parties are especially problematic in
judicial elections because impartiality is uniquely important to
the integrity and credibility of courts;
(9) An alternative public campaign financing option for
candidates running for a seat on the Supreme Court of Appeals will
ensure the fairness of democratic elections in this state, protect
the Constitutional rights of voters and candidates from the
detrimental effects of increasingly large amounts of money being
raised and spent to influence the outcome of elections, protect the
impartiality and integrity of the judiciary, and strengthen public
confidence in the judiciary; and
(10) Funding the "West Virginia Supreme Court of Appeals
Public Campaign Financing Pilot Program" from a wide range of
revenue sources furthers important state interests in protecting
the integrity of judicial elections and serves to protect the
public interest.
§3-12-3. Definitions.
As used in this article, the following terms and phrases have the following meanings:
(1) "Candidate's committee" means the term as it is defined in
section one-a, article eight of this chapter.
(2) "Certified candidate" means an individual seeking election
to the West Virginia Supreme Court of Appeals who has been
certified in accordance with section ten of this article as having
met all the requirements for receiving public campaign financing
from the fund.
(3) "Contribution" means the term as it is defined in section
one-a, article eight of this chapter.
(4) "Exploratory contribution" means a contribution of no more
than $1,000 made by an individual adult, including a participating
candidate and members of his or her immediate family, during the
exploratory period. Exploratory contributions may not exceed
$20,000 in the aggregate.
(5) "Exploratory period" means the period during which a
participating candidate may raise and spend exploratory
contributions to examine his or her chances of election and to
qualify for public campaign financing under this article. The
exploratory period begins on January 1 the year before the primary
in which the candidate may run for Justice of the Supreme Court of
Appeals and ends on the last Saturday in January of the election
year.
(6) "Financial agent" means the term as it is defined in
section one-a, article eight of this chapter.
(7) "Fund" means the Supreme Court of Appeals Public Campaign Financing Fund created by section five of this article.
(8) "General election campaign period" means the period
beginning the day after the primary election and ending on the day
of the general election.
(9) "Independent expenditure" means the term as it is defined
in section one-a, article eight of this chapter.
(10) "Immediate family" or "immediate family members" means
the spouse, parents, step-parents, siblings and children of the
participating candidate.
(11) "Nonparticipating candidate" means a candidate who is:
(A) Seeking election to the Supreme Court of Appeals;
(B) Is neither certified nor attempting to be certified to
receive public campaign financing from the fund; and
(C) Has an opponent who is a participating or certified
candidate.
(12) "Participating candidate" means a candidate who is
seeking election to the Supreme Court of Appeals and is attempting
to be certified in accordance with section ten of this article to
receive public campaign financing from the fund.
(13) "Person" means an individual, partnership, committee,
association and any other organization or group of individuals.
(14) "Primary election campaign period" means the period
beginning on the first day of the primary election filing period,
as determined under section seven, article five of this chapter,
and ending on the day of the subsequent primary election.
(15) "Qualifying contribution" means a contribution received from a West Virginia registered voter of not less than $1 nor more
than $100 in the form of cash, check or money order, made payable
to a participating candidate or the candidate's committee, or in
the form of an electronic payment or debit or credit card payment,
received during the qualifying period.
(16) "Qualifying period" means the period during which
participating candidates may raise and spend qualifying
contributions in order to qualify to receive public campaign
financing.
(A) For candidates seeking nomination on the primary election
ballot, the qualifying period begins on September 1 preceding the
election year and ends on the last Saturday in January of the
election year.
(B) For candidates, other than those nominated during the
primary election, seeking to be placed on the general election
ballot, the qualifying period begins on June 1 of the election year
and ends on October 1 of the election year.
§3-12-4. Alternative public campaign financing option.
This article establishes an alternative public campaign
financing option available to candidates for election to the office
of Justice of the West Virginia Supreme Court of Appeals for the
2012 primary and general elections. Candidates electing the
alternative public campaign financing option shall comply with all
other applicable election and campaign laws and rules.
§3-12-5. Supreme Court of Appeals Public Campaign Financing Fund.
There is established in the State Treasury a special revenue
fund to be known as the "Supreme Court of Appeals Public Campaign
Financing Fund" for the dual purpose of providing public financing
for the election campaigns of certified candidates under the
provisions of this article and of paying the administrative and
enforcement costs of the Secretary of State and State Election
Commission related to this article. All moneys collected under the
provisions of this article shall be deposited in the fund, which
shall be administered by the State Election Commission. Funds may
also be accepted from any gift, grant, bequest, endowment fund or
donation which may be received by the State Election Commission
from any person, firm, foundation or corporation. Any balance,
including accrued interest or other earnings in the fund at the end
of any fiscal year do not revert to the General Revenue Fund, but
shall remain in the fund. Expenditures may be made from the fund
only for the purposes set forth in this article and in accordance
with the provisions of article three, chapter twelve of this code
and upon fulfillment of the provisions of article two, chapter
eleven-b of this code.
§3-12-6. Sources of revenue for the fund.
Revenue from the following sources shall be deposited in the
fund:
(1) All exploratory and qualifying contributions in excess of
the established maximums;
(2) Money returned by participating or certified candidates who fail to comply with the provisions of this article;
(3) Unspent or unobligated moneys allotted to certified
candidates and remaining unspent or unobligated on the date of the
general election for which the money was distributed;
(4) If a certified candidate loses, all remaining unspent or
unobligated moneys after the primary election;
(5) Civil penalties levied by the State Election Commission
against candidates for violations of this article;
(6) Civil penalties levied by the Secretary of State pursuant
to section seven, article eight of this chapter;
(7) Voluntary donations made directly to the fund;
(8) Interest income;
(9) Each West Virginia state personal income tax taxpayer may
voluntarily contribute a portion of the taxpayer's state income tax
refund, up to $6,000, for deposit into the fund through a check-off
designation on the state personal income tax return form. If a
husband and wife file a joint return, each spouse may designate up
to $6,000 for deposit into the fund. All amounts so designated
shall be deducted from the taxpayers' income tax refund and
credited to the fund. The State Tax Commissioner shall determine
by July 1 of each year the total amount designated pursuant to this
subsection and shall report that amount to the State Treasurer, who
shall credit that amount to the fund;
(10) On or before July 1, 2010, and for two successive years
thereafter, the State Auditor shall authorize the transfer of the
amount of $1 million from the Purchasing Card Administration Fund established in section ten-d, article three, chapter twelve of this
code to the fund created by this article;
(11) Money appropriated to the fund;
(12) Beginning in fiscal year 2010-2011, the West Virginia
State Bar shall assess every attorney licensed to practice law in
West Virginia a fee for the fair administration of justice to be
deposited into the fund as follows:
(A) Attorneys licensed to practice law for three years or
less, $50;
(B) Attorneys licensed to practice law for more than three
years, $75; and
(C) Attorneys licensed to practice law on inactive status,
$65.
All fees obligated to the fund shall be collected by the West
Virginia State Bar and transmitted to the State Treasurer to be
deposited in the fund.
(13) There is assessed a fair administration of justice fee of $100
on each appeal and petition filed in the Supreme Court of Appeals
in a civil case, except domestic relations actions, instituted on
and after the effective date of this article. No fee may be
charged on any appeal or petition filed in forma pauperis. The
Clerk of the Supreme Court of Appeals shall collect the fee at the
time any such appeal or petition is filed and shall remit the fees
collected each month to the State Treasurer to be deposited in the
fund.
(14) There is assessed a fair administration of justice fee of $20 on each civil action filed in circuit court, except class
actions and domestic relations actions, instituted under the rules
of civil procedure, any statutory summary proceeding, any
extraordinary remedy filed, and the docketing of civil appeals to
circuit court or any other action, cause, suit or proceeding
instituted in circuit court on and after the effective date of this
article. No fee may be charged on any such action filed in forma
pauperis. The clerk of the circuit court shall collect the fee at
the time any such action is filed and shall remit the fees
collected each month to the State Treasurer to be deposited in the
fund.
(15) There is assessed a fair administration of justice fee of
$20 on each party in a class action lawsuit filed in circuit court
at the time the case is settled or judgment rendered. No fee may
be charged on any such action filed in forma pauperis. The fee
shall be paid to the clerk of the circuit court at the time of
settlement or when judgment is rendered. Where judgement is
rendered the fee shall be collected from the nonprevailing party.
The clerk shall remit the fees collected each month to the State
Treasurer to be deposited in the fund.
(16) There is assessed a fair administration of justice fee of
$20 on each plaintiff in a divorce action filed in family court at
the time the case is filed. No fee may be charged on any such
action filed in forma pauperis. The clerk of the family court
shall collect the fee at the time any such action is filed and
shall remit the fees collected each month to the State Treasurer to be deposited in the fund.
(17) There is assessed a fair administration of justice fee of
$10 on each plaintiff in a civil action filed in magistrate court
at the time the case is filed. No fee may be charged on any such
action filed in forma pauperis. The clerk of the magistrate court
shall collect the fee at the time any such action is filed and
shall remit the fees collected each month to the West Virginia
State Treasurer to be deposited in the fund.
§3-12-7. Declaration of intent.
A candidate desiring to receive campaign financing from the
fund shall first file a declaration of intent before the end of the
qualifying period and prior to collecting any qualifying
contributions. The declaration shall be on a form prescribed by
the State Election Commission and shall contain a statement that
the candidate is qualified to be placed on the ballot, and, if
elected, to hold the office sought and has complied with and will
continue to comply with all requirements of this article, including
contribution and expenditure restrictions. Contributions made
prior to the filing of the declaration of intent are not qualifying
contributions. Any contributions received by a candidate during
any precandidacy period which preceded the exploratory period which
remain unexpended at the time of the declaration of intent shall be
considered exploratory funds and subject to the limits and
provisions of section eight of this article.
§3-12-8. Exploratory period; contributions; expenditures.
(a) A participating candidate or his or her committee may not
accept, spend or obligate exploratory contributions exceeding
$20,000 in the aggregate, during the exploratory period. At the
time the participating candidates formally declares his or her
intent to qualify for public campaign financing, in accordance with
section five of this article, any unexpended or undedicated
contributions received during any precandidacy period which preceded
the exploratory period shall be deemed to be exploratory
contributions for that candidate. The maximum individual
exploratory contribution which may be accepted from any person
including immediate family members is $1,000. A participating
candidate may loan, contribute or obligate up to $1,000 of his or
her own money for exploratory purposes. Any exploratory
contributions received by the participating candidate in excess of
$20,000 in the aggregate shall be sent to the Election Commission
for deposit in the fund.
(b) Each exploratory contribution shall be acknowledged by a
written receipt. Receipts for exploratory contributions of $250 or
more during an election cycle shall include the contributor's name,
residence and mailing address, business affiliation and occupation.
Receipts for exploratory contributions of less than $250 shall
include the contributor's name and the amount of the contribution,
and otherwise comport with the disclosure and reporting requirements
of section five-a, article eight of this chapter.
(c) An exploratory contribution from one person may not be made
in the name of another person.
(d) At the beginning of each month a participating or certified
candidate or his or her financial agent shall report all exploratory
contributions, expenditures and obligations along with all receipts
for contributions received during the prior month to the Secretary
of State. Such reports shall be filed electronically: Provided,
That a committee may apply for an exemption in case of hardship
pursuant to subsection (c) of section five-b, article eight of this
chapter. If the candidate decides not to run for office all unspent
or unobligated exploratory contributions shall be sent to the state
Election Commission for deposit in the fund. If the candidate
decides to run for office as a nonparticipating candidate the
unspent or unobligated exploratory contributions shall be used in
accordance with articles eight and twelve of this chapter.
§3-12-9. Qualifying contributions.
(a) A participating candidate or his or her candidate's
committee may not accept more than one qualifying contribution from
a single individual. A qualifying contribution may not be less than
$1 nor more than $100. To be considered as a proper qualifying
contribution, the qualifying contribution must be made by a
registered West Virginia voter. A participating candidate shall
collect qualifying contributions which in the aggregate are not less
than $35,000 nor more than $50,000. Qualifying contributions in
excess of $50,000 shall be sent to the State Election Commission for
deposit in the fund.
(b) Each qualifying contribution shall be acknowledged by a written receipt that includes:
(1) The printed name of the participating candidate on whose
behalf the contribution is made and the signature of the person who
collected the contribution for the candidate or his or her
candidate's committee;
(2) For qualifying contributions of $25 or more, the
contributor's signature, printed name, street address, zip code,
telephone number, occupation and name of employer; and for
qualifying contributions of less than $25, the contributor's
signature, printed name, street address and zip code;
(3) A statement above the contributor's signature that:
(A) The contributor understands the purpose of the contribution
is to assist the participating candidate in obtaining public
campaign financing;
(B) The contribution was made without coercion;
(C) The contributor has not been reimbursed, received or
promised anything of value for making the contribution; and
(D) The individual soliciting the contribution on behalf of the
participating candidate has not been reimbursed, received or
promised anything of value for the services.
(4) One copy of the receipt shall be given to the contributor,
one copy shall be retained by the candidate and one copy shall be
sent by the candidate to the Secretary of State. A contribution
which is not acknowledged by a written receipt in the form required
by this subsection is not a qualifying contribution.
(c) During the qualifying period, a participating candidate or his or her candidate's committee must obtain at least five hundred
qualifying contributions from registered West Virginia voters. A
minimum of ten percent of the total number of qualifying
contributions received by the candidate must be from each of the
state's congressional districts.
(d) A participating candidate and each member of the
candidate's immediate family who is a registered voter in this state
may each 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 reimburse, give or
promise anything of value in exchange for a qualifying contribution.
(f) At the beginning of each month a participating or certified
candidate or his or her financial agent or committee shall report
all qualifying contributions, expenditures and obligations along
with all receipts for contributions received during the prior month
to the Secretary of State. Such reports shall be filed
electronically: Provided, That a committee may apply for an
exemption in case of hardship pursuant to subsection (c) of section
five-b, article eight of this chapter. If the candidate decides
not to run for office all unspent or unobligated qualifying
contributions shall be sent to the State Election Commission for
deposit in the fund. If the candidate decides to run for office as
a nonparticipating candidate the unspent or unobligated qualifying
contributions shall be used in accordance with articles eight and
twelve of this chapter.
(g) All qualifying contributions collected and all expenditures
by a participating candidate or his or her committee shall be
reported to the Secretary of State no later than two business days
after the close of the qualifying period.
§3-12-10. Certification of candidates.
(a) To be certified, a participating candidate shall apply to
the State Election Commission for public campaign financing from the
fund and file a sworn statement that he or she has complied and will
comply with all requirements of this article throughout the
applicable campaign.
(b) Upon receipt of a notice from the Secretary of State that
a participating candidate has received the required number and
amount of qualifying contributions, the State Election Commission
shall determine whether the candidate or candidate's committee:
(1) Has signed and filed a declaration of intent as required
by section seven of this article;
(2) Has obtained the required number and amount of qualifying
contributions as required by section nine of this article;
(3) Has 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) 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) of
this section by using the verification and sampling techniques
approved by the State Election Commission.
(d) The State Election Commission shall determine whether to
certify a participating candidate as eligible to receive public
campaign financing no later than three business days after the
candidate or the candidate's committee makes his or her final report
of qualifying contributions or, if a challenge is filed under
subsection (g) of this section, no later than six business days
after the candidate or the candidate's committee makes his or her
final report of qualifying contributions. A certified candidate
shall comply with the provisions of this article through the general
election campaign period.
(e) No later than two business days after the State Election
Commission certifies that a participating candidate is eligible to
receive public campaign financing under the provisions of this
section, the State Election Commission, acting in concert with the
State Auditor's office and the State Treasurer's office, shall cause
a check to be issued to the candidate's campaign depository account
an amount equal to the initial public campaign financing benefit for
which the candidate qualifies under section eleven of this article,
minus the candidate's qualifying contributions, and shall notify all
other candidates for the same office of its determination.
(f) 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.
(g) Any person may challenge the validity of any contribution
listed by a participating candidate by filing a written challenge
with the State Election Commission setting forth any reason why the
contribution should not be accepted as a qualifying contribution.
If a contribution is challenged under this subsection, the State
Election Commission shall decide the validity of the challenge no
later than the end of the next business day after the day that the
challenge is filed, unless the State Election Commission determines
that the candidate whose contribution is challenged has both a
sufficient qualifying number and amount of qualifying contributions
to be certified as a candidate under this section without
considering the challenge. Within five business days of a
challenge, the candidate or candidate's committee who listed any
contribution that is the subject of a challenge may file a report
with the State Election Commission of an additional contribution
collected pursuant to section nine of this article for consideration
as a qualifying contribution.
(h) A candidate's certification and receipt of 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 violates the provisions of this article
shall repay all moneys received from the fund to the State Election
Commission.
(i) The determination of any issue before the State Election Commission is the final administrative determination. Any meetings
conducted by the State Elections Commission to certify a candidate's
initial eligibility to receive funds under this article, or their
eligibility to receive supplemental funds or rescue funds under
section eleven of this article shall not be subject the public
notice and open meeting requirements of article nine-a, chapter six
of this Code, but the Commission shall concurrently provide public
notice of any decision and determination it makes which impacts the
candidate's eligibility to receive initial funds or supplemental
funds pursuant to the provisions of this article. 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.
(j) A candidate may withdraw from being a certified candidate
and become a nonparticipating candidate at any time 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 withdraw until he or she has repaid all
moneys received from the fund: Provided, That the State Election
Commission may, in exceptional circumstances, waive the repayment
requirement. The State Election Commission may assess a penalty not
to exceed $10,000 against any candidate who withdraws without
approval.
§3-12-11. Schedule and amount of Supreme Court of Appeals Public Campaign Financing Fund payments; additional funds.
(a) The State Election Commission, acting in concert with the
State Auditor's office and the State Treasurer's office, shall have
a check issued within two business days after the date on which the
candidate is certified, to make payments from the fund for the 2012
primary election campaign period available to a certified candidate.
(1) In a contested primary election, a certified candidate
shall receive $200,000 in initial campaign financing from the fund,
minus the certified candidate's qualifying contributions.
(2) In an uncontested primary election, a certified candidate
shall receive $50,000 from the public campaign financing fund, minus
the certified candidate's qualifying contributions.
(b) Within two business days after the primary election results
are certified by the Secretary of State, the State Election
Commission, acting in concert with the State Auditor's office and
the State Treasurer's office, shall cause a check to be issued to
make initial payments from the fund for the 2012 general election
campaign period available to a certified candidate.
(1) In a contested general election, a certified candidate may
receive from the fund an amount not to exceed $350,000.
(2) In an uncontested general election, a certified candidate
shall receive $35,000 from the public campaign financing fund.
(c) The State Election Commission shall authorize the
distribution of initial campaign financing moneys to certified
candidates in equal amounts. The commission shall propose a legislative rule on distribution of funds.
(d) The State Election Commission may not authorize or direct
the distribution of moneys to certified candidates in excess of the
total amount of money deposited in the fund pursuant to section six
of this article. If the commission determines that the money in the
fund is insufficient to totally fund all certified candidates, the
commission shall authorize the distribution of the remaining money
proportionally, according to each candidate's eligibility for
funding. Each candidate may raise additional money in the same
manner as a nonparticipating candidate for the same office up to the
unfunded amount of the candidate's eligible funding.
(e) If the commission determines from any reports filed
pursuant to this chapter or by other reliable and verifiable
information obtained through investigation that a nonparticipating
candidate's campaign expenditures or obligations, in the aggregate,
have exceeded by twenty percent the initial funding available under
this section any certified candidate running for the same office,
the commission shall authorize the release of additional funds in
the amount of the reported excess to any opposing certified
candidate for the same office.
(f) If the State Election Commission determines from any
reports filed pursuant to this chapter or by other reliable and
verifiable information obtained through investigation that
independent expenditures on behalf of a nonparticipating candidate,
either alone or in combination with the nonparticipating candidate's
campaign expenditures or obligations, have exceeded by twenty percent the initial funding available under this section to any
certified candidate running for the same office, the commission
shall authorize the release of additional funds in the amount of the
reported excess to any certified candidate who is an opponent for
the same office.
(g) If the commission determines from any reports filed
pursuant to this chapter or by other reliable and verifiable
information obtained through investigation that independent
expenditures on behalf of a certified candidate, in combination with
the certified candidate's campaign expenditures or obligations,
exceed by twenty percent the initial funding available under this
section to any certified candidate running for the same office, the
State Election Commission shall authorize the release of additional
funds in the amount of the reported excess to any other certified
candidate who is an opponent for the same office.
(h) Additional funds released under this section to a certified
candidate may not exceed $400,000 in a primary election, and
$700,000 in a general election.
(i) In the event the commission determines that additional
funds beyond the initial distribution are to be released to a
participating candidate pursuant to the provisions of the section,
the commission, acting in concert with the State Auditor's office
and the State Treasurer's office, shall cause a check for any such
funds to be issued to the candidate's campaign depository within
two business days.
§3-12-12. Restrictions on contributions and expenditures.
(a) A certified candidate or his or her committee may not
accept loans or 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 during the
qualifying period, a participating candidate may not spend or
obligate more than he or she has collected in exploratory and
qualifying contributions. After the qualifying period and through
the general election campaign period, a certified candidate may
spend or obligate any unspent exploratory or qualifying
contributions and the moneys he or she receives from the fund under
the provisions of section eleven of this article.
(c) A participating or certified candidate may expend
exploratory and qualifying contributions and funds received from the
fund only for lawful election expenses as provided in section nine,
article eight of this chapter. Moneys distributed to a certified
candidate from the fund may be expended only during the primary and
general election campaign period for which funds were dispersed.
Money from the fund may not be used:
(1) In violation of the law;
(2) To repay any personal, family or business loans,
expenditures or debts; or
(3) To help any other candidate.
(d) A certified candidate or his or her committee shall return
to the fund any unspent and unobligated exploratory contributions, qualifying contributions or moneys received from the fund within
forty-eight hours after:
(1) The date on which the candidate ceases to be certified; or
(2) The date on which the individual loses the primary election
or otherwise ceases to be a candidate.
(e) Funds remaining unspent or unobligated after the close of
the primary election campaign period may be retained by the
candidate for use during the general election campaign period, but
shall be deducted from the amount the candidate is eligible to
receive under subsection (b), section eleven of this article.
(f) A certified candidate or his or her committee shall return
to the fund any unspent or unobligated public campaign financing
funds no later than five business days after the general election.
(g) A contribution from one person may not be made in the name
of another person.
(h) A participating or certified candidate or his or her
committee receiving qualifying contributions or exploratory
contributions from a person not listed on the receipt required by
sections eight and nine of this article is liable to the State
Election Commission for the entire amount of that contribution and
any applicable penalties.
(i) A certified candidate accepting any benefits under the
provisions of this article shall continue to comply with all of its
provisions throughout the primary election campaign period and
general election campaign period.
(j) A participating or certified candidate or his or her financial agent shall provide the Secretary of State with all
requested campaign records, including all records of exploratory and
qualifying contributions received and campaign expenditures and
obligations, and shall fully cooperate with any audit of campaign
finances requested or authorized by the State Election Commission.
§3-12-13. Reporting requirements.
(a) Participating candidates, certified candidates and
nonparticipating candidates shall comply with the provisions of this
section in addition to any other reporting required by the
provisions of this chapter.
(b) During the exploratory and qualifying periods, a
participating candidate or his or her financial agent shall submit,
on the first of each month, a report of all exploratory and
qualifying contributions along with their receipts and an accounting
of all expenditures and obligations received during the immediately
preceding month. The reports shall be on forms or in a format
prescribed by the Secretary of State. Such reports shall be filed
electronically: Provided, That a committee may apply for an
exemption in case of hardship pursuant to subsection (c) of section
five-b, article eight of this chapter.
(c) No later than two business days after the close of the
qualifying period, a participating candidate or his or her financial
agent shall report to the Secretary of State on appropriate forms
a summary of:
(1) All exploratory contributions received and funds expended or obligated during the exploratory period together with copies of
any receipts not previously submitted for exploratory contributions;
and
(2) All qualifying contributions received and funds expended
or obligated during the qualifying period together with copies of
any receipts not previously submitted for qualifying contributions.
(d) A certified candidate or his or her financial agent shall
file periodic financial statements in accordance with section five,
article eight of this chapter, detailing all funds received,
expended or obligated during the specified periods. The reports
shall be on forms approved by the Secretary of State.
(e) In addition to any other reporting required by this
chapter, a nonparticipating candidate or his or her financial agent
shall report to the Secretary of State on approved forms an itemized
summary of his or her campaign expenditures or obligations,
according to the following provisions and guidelines:
(1) On the first Saturday in March or within six days
thereafter listing the nonparticipating candidate's expenditures and
obligations prior to March 1 if the nonparticipating candidate's
campaign expenditures or obligations, in the aggregate, exceed the
initial funding available under section eleven of this article to
any certified candidate for the same office.
(2) On the first Saturday in April listing any expenditures or
obligations, in the aggregate, that exceed the initial funding
available under section eleven of this article to any certified
candidate running for the same office and 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 expenditures or obligations, in the
aggregate, that exceed the initial funding available under section
eleven of this article to any certified candidate running for the
same office made prior to the fifteenth day before the primary
election shall be reported to the Secretary of State within forty-
eight hours.
(3) On the first Saturday in July or within six days thereafter
listing the nonparticipating candidate's expenditures and
obligations prior to July 1 subsequent to the primary election, if
the nonparticipating candidate's expenditures or obligations, in the
aggregate, exceed the initial funding available under section eleven
of this article to any certified candidate running for the same
office.
(4) On the first Saturday in October listing any expenditures
or obligations, in the aggregate, that exceed the initial funding
available under section eleven of this article to any certified
candidate running for the same office and 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 expenditures or obligations, in the
aggregate, that exceed the initial funding available under section
eleven of this article to any certified candidate running for the same office made prior to the fifteenth day before the general
election shall be reported to the State Election Commission within
forty-eight hours.
(5) During the last fifteen days before the primary or general
elections in 2012, the nonparticipating candidate or his or her
financial agent shall report to the State Election Commission within
twenty-four hours thereof every additional expenditure or
obligation, in the aggregate, that exceeds the initial funding
available under section eleven of this article to any certified
candidate running for the same office.
(f) 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.
(g) During the last fifteen days before the primary or general
election in 2012, any person, organization or entity making
independent expenditures advocating the election or defeat of any
candidate, including the election or defeat of a certified candidate
or the nomination or election of any candidate who is opposed by a
certified candidate, shall continue to file reports as required
pursuant to subsection (b), section two, article eight of this
chapter.
§3-12-14. Duties of the State Election Commission; Secretary of State.
(a) In addition to its other duties, the State Election
Commission shall carry out the duties of this article and complete
the following as applicable:
(1) Prescribe forms for reports, statements, notices and other
documents required by this article;
(2) Make an annual report to the Legislature accounting for
moneys in the fund, describing the State Election Commission's
activities, and listing any recommendations for changes of law,
administration or funding amounts;
(3) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code
as may be necessary for the proper administration of the provisions
of this article;
(4) Enforce the provisions of this article to ensure that
moneys from the fund are placed in candidate campaign accounts and
spent as specified in this article;
(5) Monitor reports filed pursuant to this article and the
financial records of candidates to ensure that qualified candidates
receive matching funds promptly and to ensure that moneys required
by this article to be paid to the fund are deposited in the fund;
(6) Cause an audit of the fund to be conducted by independent
certified public accountants ninety days after a general election.
The State Election Commission shall cooperate with the audit,
provide all necessary documentation and financial records to the Auditor and maintain a record of all information supplied by the
audit;
(7) In consultation with the State Treasurer and the State
Auditor, develop a rapid, reliable method of conveying funds to
certified candidates. In all cases, the commission shall distribute
funds to certified candidates in a manner that is expeditious,
ensures accountability, and safeguards the integrity of the fund;
and
(8) Regularly monitor the receipts, disbursements, obligations
and balance in the fund to determine whether the fund will have
sufficient moneys to meets its obligations and sufficient moneys
available for disbursement during the general election campaign
period.
(b) In addition to his or her other duties, the Secretary of
State shall carry out the duties of this article and complete the
following as applicable:
(1) Prescribe forms for reports, statements, notices and other
documents required by this article;
(2) Prepare and publish information about this article and
provide it to potential candidates and the citizens of this state;
(3) Prepare and publish instructions setting forth methods of
bookkeeping and preservation of records to facilitate compliance
with this article and explaining the duties of candidates and others
participating in elections under the provisions of this article;
(4) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this code as may be necessary for the proper administration of the provisions
of this article;
(5) Enforce the provisions of this article to ensure that
moneys from the fund are placed in candidate campaign accounts and
spent as specified in this article;
(6) Monitor reports filed pursuant to this article and the
financial records of candidates to ensure that qualified candidates
receive matching funds promptly and to ensure that moneys required
by this article to be paid to the fund are deposited in the fund;
(7) Ensure public access to the campaign finance reports
required pursuant to this article, and whenever possible, use
electronic means for the reporting, storing and display of the
information; and
(8) Prepare a voters' guide for the general public listing the
names of each candidate seeking election to the Supreme Court of
Appeals. Both certified and nonparticipating candidates shall be
invited by the State Election Commission to submit a statement, not
to exceed five hundred words in length, for inclusion in the guide.
The guide shall identify the candidates that are certified
candidates and the candidates that are nonparticipating candidates.
Copies of the guide shall be posted on the web site of the Secretary
of State as soon as may be practical.
(c) To fulfill its responsibilities under this article, the
State Election Commission and the Secretary of State may subpoena
witnesses, compel their attendance and testimony, administer oaths
and affirmations, take evidence and require by subpoena the production of any books, papers, records or other items material to
the performance of their duties or the exercise of their powers.
(d) The State Election Commission may also propose and adopt
procedural rules to carry out the purposes and provisions of this
article and to govern procedures of the State Election Commission
as it relates to the requirements of this article.
§3-12-15. Criminal penalties.
(a) A participating or certified candidate who, either
personally or through his or her committee, knowingly accepts
contributions or benefits in excess of those allowed under this
article, spends or obligates funds in excess of the public campaign
financing funding to which he or she is entitled, or uses the
benefits or funding for a purpose other than those permitted under
this article is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $50 nor more than $500, or
confined in jail for up to thirty days, or both fined and confined.
(b) A participating or certified candidate who, either
personally or through his or her committee or financial agent,
provides false information to or conceals or withholds information
from the State Election Commission or the Secretary of State is
guilty of a misdemeanor and, upon conviction thereof, shall be fined
not less than $1,000 nor more than $10,000, or confined in jail for
up to one year, or both fined and confined.
§3-12-16. Civil penalties.
(a) If a participating or certified candidate or his or her committee or financial agent unintentionally accepts contributions
from a private source in violation of the provisions of this article
or spends or obligates to spend more than the amount of public
financing money he or she is eligible to receive from the fund
pursuant to section eleven 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 contribution,
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
contribution, expenditure or obligation. The candidate shall pay
the civil penalty authorized under this subsection within seven days
of receipt of written notice from the State Election Commission of
the imposition of the penalty.
(c) If a participating or certified candidate fails to pay any
moneys required to be paid to the State Election Commission or
returned to the fund under this article, the State Election
Commission may order the candidate to pay an amount equal to three
times the amount that should have been paid to the State Election
Commission or returned to the fund.
(d) In addition to any other penalties imposed by law, the State Election Commission may impose a civil penalty for a violation
by or on behalf of any candidate of any reporting requirement
imposed by this article in the amount of $100 a day. The penalty
shall be doubled if the amount not reported for a specific election
exceeds ten percent of the initial amount of public financing
available to a certified candidate in a primary or general election
pursuant to section 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.
§3-12-17. Expiration of article.
The provisions of this article shall have no force or effect
on or after July 1, 2013. Any moneys remaining in the fund on July
1, 2013, shall be transferred to the General Revenue Fund.