H. B. 3337
(By Delegates Webster, Caputo, White,
Guthrie and Marshall)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §3-8-1a and §3-8-8 of the Code of West
Virginia 1931, as amended, all relating to the regulation and
control of elections; amending the definition of "express
advocacy" and "targeted to the relevant electorate"; and
creating an exception to the ban on corporate political
activity for qualified nonprofit corporations.
Be it enacted by the Legislature of West Virginia:
That §3-8-1a and §3-8-8 of the Code of West Virginia, 1931, as
amended, 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 a constitutional amendment, special
levy, bond issue, local option referendum, municipal charter or revision, an increase or decrease of corporate limits or any other
question that is placed before the voters for a binding decision.
(2) "Billboard" means a commercially available outdoor
advertisement, sign or similar display regularly available for
lease or rental to advertise a person, place or product.
(3) "Broadcast, cable or satellite communication" means a
communication that is publicly distributed by a television station,
radio station, cable television system or satellite system.
(4) "Candidate" means an individual who:
(A) Has filed a certificate of announcement under section
seven, article five of this chapter or a municipal charter;
(B) Has filed a 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 for
any state, district, county or municipal office or party office to
be filled at any primary, general or special election.
(5) "Candidate's committee" means a political committee
established with the approval of or in cooperation with a candidate
or a prospective candidate to explore the possibilities of seeking
a particular office or to support or aid his or her nomination or
election to an office in an election cycle. If a candidate directs
or influences the activities of more than one active committee in a current campaign, those committees shall be considered one
committee for the purpose of contribution limits.
(6) "Clearly identified" means that the name, nickname,
photograph, drawing or other depiction of the candidate appears or
the identity of the candidate is otherwise apparent through an
unambiguous reference, such as "the Governor," "your Senator" or
"the incumbent" or through an unambiguous reference to his or her
status as a candidate, such as "the Democratic candidate for
Governor" or "the Republican candidate for Supreme Court of
Appeals."
(7) "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 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:
Provided, That a nonmonetary
contribution is to be considered at fair market value for reporting
requirements and contribution limitations.
(8) "Corporate political action committee" means a political
action committee that is a separate segregated fund of a corporation that may only accept contributions from its restricted
group as outlined by the rules of the State Election Commission.
(9) "Direct costs of purchasing, producing or disseminating
electioneering communications" means:
(A) Costs charged by a vendor, including, but not limited to,
studio rental time, compensation of staff and employees, costs of
video or audio recording media and talent, material and printing
costs and postage; or
(B) The cost of air time on broadcast, cable or satellite
radio and television stations, the costs of disseminating printed
materials, establishing a telephone bank, studio time, use of
facilities and the charges for a broker to purchase air time.
(10) "Disclosure date" means either of the following:
(A) The first date during any calendar year on which any
electioneering communication is disseminated after the person
paying for the communication has spent a total of $5,000 or more
for the direct costs of purchasing, producing or disseminating
electioneering communications; or
(B) Any other date during that calendar year after any
previous disclosure date on which the person has made additional
expenditures totaling five thousand dollars or more for the direct
costs of purchasing, producing or disseminating electioneering
communications.
(11) "Election" means any primary, general or special election conducted under the provisions of this code or under the charter of
any municipality at which the voters nominate or elect candidates
for public office. For purposes of this article, each primary,
general, special or local election constitutes a separate election.
This definition is not intended to modify or abrogate the
definition of the term "nomination" as used in this article.
(12) (A) "Electioneering communication" means any paid
communication made by broadcast, cable or satellite signal, mass
mailing, telephone bank, billboard advertising or published in any
newspaper, magazine or other periodical that:
(i) Refers to a clearly identified candidate for Governor,
Secretary of State, Attorney General, Treasurer, Auditor,
Commissioner of Agriculture, Supreme Court of Appeals or the
Legislature;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election at which the
nomination for office sought by the candidate is to be determined;
or
(II) Sixty days before a general or special election at which
the office sought by the candidate is to be filled; and
(iii) Is targeted to the relevant electorate:
Provided, That
for purposes of the general election of 2008 the amendments to this
article shall be effective the first day of October 1, 2008.
(B) "Electioneering communication" does not include:
(i) A news story, commentary or editorial disseminated through
the facilities of any broadcast, cable or satellite television or
radio station, newspaper, magazine or other periodical publication
not owned or controlled by a political party, political committee
or candidate:
Provided, That a news story disseminated through a
medium owned or controlled by a political party, political
committee or candidate is nevertheless exempt if the news is:
(I) A bona fide news account communicated in a publication of
general circulation or through a licensed broadcasting facility;
and
(II) Is part of a general pattern of campaign-related news
that gives reasonably equal coverage to all opposing candidates in
the circulation, viewing or listening area;
(ii) Activity by a candidate committee, party executive
committee or caucus committee, or a political action committee that
is required to be reported to the State Election Commission or the
Secretary of State as an expenditure pursuant to section five of
this article or the rules of the State Election Commission or the
Secretary of State promulgated pursuant to such provision:
Provided, That independent expenditures by a party executive
committee or caucus committee or a political action committee
required to be reported pursuant to subsection (b), section two of
this article are not exempt from the reporting requirements of this
section;
(iii) A candidate debate or forum conducted pursuant to rules
adopted by the State Election Commission or the Secretary of State
or a communication promoting that debate or forum made by or on
behalf of its sponsor;
(iv) A communication paid for by any organization operating
under Section 501(c)(3) of the Internal Revenue Code of 1986;
(v) A communication made while the Legislature is in session
which, incidental to promoting or opposing a specific piece of
legislation pending before the Legislature, urges the audience to
communicate with a member or members of the Legislature concerning
that piece of legislation;
(vi) A statement or depiction by a membership organization, in
existence prior to the date on which the individual named or
depicted became a candidate, made in a newsletter or other
communication distributed only to bona fide members of that
organization;
(vii) A communication made solely for the purpose of
attracting public attention to a product or service offered for
sale by a candidate or by a business owned or operated by a
candidate which does not mention an election, the office sought by
the candidate or his or her status as a candidate; or
(viii) A communication, such as a voter's guide, which refers
to all of the candidates for one or more offices, which contains no
appearance of endorsement for or opposition to the nomination or election of any candidate and which is intended as nonpartisan
public education focused on issues and voting history.
(13) "Expressly advocating" means any communication that:
(A) Uses phrases such as "vote for the Governor," "re-elect
your Senator," "support the Democratic nominee for Supreme Court,"
"cast your ballot for the Republican challenger for House of
Delegates," "Smith for House," "Bob Smith in '04," "vote Pro-Life"
or "vote Pro-Choice" accompanied by a listing of clearly identified
candidates described as Pro-Life or Pro-Choice, "vote against Old
Hickory," "defeat" accompanied by a picture of one or more
candidates, "reject the incumbent," or communications of campaign
slogans or individual words, that in context can have no other
reasonable meaning than to urge the election or defeat of one or
more clearly identified candidates, such as posters, bumper
stickers, advertisements, etc. which say "Smith's the One," "Jones
'06," "Baker"; or
(B)
When considered in its entirety, the communication can
only be interpreted by a reasonable person as advocating the
election or defeat of one or more clearly identified candidates
because:
(i) The electoral portion of the communication is
unmistakable, unambiguous, and suggestive of only one meaning; and
(ii) Reasonable minds could not differ as to whether it
encourages actions to elect or defeat one or more clearly identified candidates Is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a
specific candidate.
(14) "Financial agent" means any individual acting for and by
himself or herself, or any two or more individuals acting together
or cooperating in a financial way to aid or take part in the
nomination or election of any candidate for public office, or to
aid or promote the success or defeat of any political party at any
election.
(15) "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.
(16) "Independent expenditure" means an expenditure by a
person:
(A) Expressly advocating the election or defeat of a clearly
identified candidate; and
(B) That is not made in concert or cooperation with or at the
request or suggestion of such candidate, his or her agents, the
candidate's authorized political committee or a political party
committee or its agents.
Supporting or opposing the election of a clearly identified
candidate includes supporting or opposing the candidates of a political party. An expenditure which does not meet the criteria
for an independent expenditure is considered a contribution.
(17) "Mass mailing" means a mailing by United States mail,
facsimile or electronic mail of more than five hundred pieces of
mail matter of an identical or substantially similar nature within
any thirty-day period. For purposes of this subdivision,
substantially similar includes communications that contain
substantially the same template or language, but vary in
nonmaterial respects such as communications customized by the
recipient's name, occupation or geographic location.
(18) "Membership organization" means a group that grants bona
fide rights and privileges, such as the right to vote, to elect
officers or directors and the ability to hold office, to its
members and which uses a majority of its membership dues for
purposes other than political purposes. "Membership organization"
does not include organizations that grant membership upon receiving
a contribution.
(19) "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.
(20) "Person" means an individual, partnership, committee,
association and any other organization or group of individuals.
(21) "Political action committee" means a committee organized
by one or more persons for the purpose of supporting or opposing
the nomination or election of one or more candidates. The
following are types of political action committees:
(A) A corporate political action committee, as that term is
defined by subdivision (8) of this section;
(B) A membership organization, as that term is defined by
subdivision(18) of this section;
(C) An unaffiliated political action committee, as that term
is defined by subdivision(29) of this section.
(22) "Political committee" means any candidate committee,
political action committee or political party committee.
(23) "Political party" means a political party as that term is
defined by section eight, article one of this chapter 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.
(24) "Political party committee" means a committee established
by a political party or political party caucus for the purposes of
engaging in the influencing of the election, nomination or defeat
of a candidate in any election.
(25) "Political purposes" means supporting or opposing the
nomination, election or defeat of one or more candidates or the
passage or defeat of a ballot issue, supporting the retirement of the debt of a candidate or political committee or the
administration or activities of an established political party or
an organization which has declared itself a political party and
determining the advisability of becoming a candidate under the
precandidacy financing provisions of this chapter.
(26)
"Promotion of political ideas" includes issue advocacy,
election influencing activity and research, training or educational
activity that is expressly tied to the organization's political
goals.
(27) "Qualified nonprofit corporation" means a corporation
that has all the following characteristics:
(A) Its only express purpose is the promotion of political
ideas, as defined in subdivision (26) of this section;
(B) It cannot engage in business activities;
(C) It has:
(i) No shareholders or other persons, other than employees and
creditors with no ownership interest, affiliated in any way that
could allow them to make a claim on the organization's assets or
earnings; and
(ii) No persons who are offered or who receive any benefit
that is a disincentive for them to disassociate themselves with the
corporation on the basis of the corporation's position on a
political issue. Such benefits include but are not limited to:
(I) Credit cards, insurance policies or savings plans; and
(II) Training, education or business information, other than
that which is necessary to enable recipients to engage in the
promotion of the group's political ideas.
(D) It:
(i) Was not established by a business corporation or labor
organization;
(ii) Does not directly or indirectly accept donations of
anything of value from business corporations; and
(iii) If unable, for good cause, to demonstrate through
accounting records that subparagraph (26)(D)(ii) of this section
is satisfied, has a written policy against accepting donations from
business corporations or labor organizations; and
(E) It is described in 26 U.S.C. 501(c)(4).
(28) "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
ten thousand one hundred forty thousand or more individuals in the
state in the case of a candidacy for statewide office,
eight
thousand two hundred twenty or more individuals in the district in
the case of a candidacy for the State Senate and
five hundred two
thousand four hundred ten or more individuals in the district in
the case of a candidacy for the
Legislature House of Delegates.
(27) (29) "Telephone bank" means telephone calls that are
targeted to the relevant electorate, other than telephone calls made by volunteer workers, regardless of whether paid professionals
designed the telephone bank system, developed calling instructions
or trained volunteers.
(28) (30) "Two-year election cycle" means the 24-month period
that begins the day after a general election and ends on the day of
the subsequent general election.
(29) (31) "Unaffiliated political action committee" means a
political action committee that is not affiliated with a
corporation or a membership organization.
§3-8-8. Corporation contributions forbidden; exceptions; penalties;
promulgation of rules; additional powers of State
Election Commission.
(a) Notwithstanding any provision of section two-b of this
article, no officer, agent or person acting on behalf of any
corporation, whether incorporated under the laws of this or any
other state or of a foreign country, may pay, give, lend or
authorize to be paid, given or lent any money or other thing of
value belonging to the corporation for the purpose of expressly
advocating the election or defeat of a clearly identified candidate
for state, district, county or municipal office, to any candidate,
financial agent, political committee or other person. No person
may solicit or receive any payment, contribution or other thing
from any corporation or from any officer, agent or other person
acting on behalf of the corporation.
The provisions of this subsection are inapplicable to qualified nonprofit corporations as
defined in section one-a of this article.
(b) (1) The provisions of this section do not prohibit a
corporation from:
(A) Directly communicating with its stockholders and executive
or administrative personnel and their families on any subject:
Provided, That the communication is not by newspapers of general
circulation, radio, television or billboard advertising likely to
reach the general public;
(B) Conducting nonpartisan registration and get-out-the-vote
campaigns aimed at its stockholders and executive or administrative
personnel and their families;
(C) Soliciting, through any officer, agent or person acting on
behalf of the corporation, contributions to a separate segregated
fund to be used for political purposes. Any separate segregated
fund is considered a political action committee for the purpose of
this article and is subject to all reporting requirements
applicable to political action committees; and
(D) Corporations may make disbursements for political
purposes, as such are defined by the provisions of subdivision
(25), subsection (a), section one-a of this article, that do not
expressly advocate for the election or defeat of a clearly
identified candidate. A disbursement for political purposes is
permissible if it:
(i) Does not reference an election, candidacy, political
party, opposing candidate or voting by the general public;
(ii) Does not take a position on any candidate's or
officeholder's character, qualifications or fitness for office;
and
(iii) Focuses on a legislative, executive or judicial matter
or issue which either:
(I) Urges a candidate to take a particular position or action
with respect to the matter or issue; or
(II) Urges the public to adopt a particular position and to
contact the candidate with respect to the matter or issue; or
(iv) Proposes a commercial transaction, such as purchase of a
book, video, or other product or service, or attendance (for a fee)
at a film exhibition or other event.
(2) It is unlawful for:
(A) A separate segregated fund to make a primary or other
election contribution or expenditure by using money or anything of
value secured: (i) By physical force, job discrimination or
financial reprisal; (ii) by the threat of force, job discrimination
or financial reprisal; (iii) as a condition of employment; or (iv)
in any commercial transaction;
(B) Any person soliciting a stockholder or executive or
administrative personnel and members of their families for a
contribution to a separate segregated fund to fail to inform the person solicited of the political purposes of the separate
segregated fund at the time of the solicitation;
(C) Any person soliciting any other person for a contribution
to a separate segregated fund to fail to inform the person
solicited at the time of the solicitation of his or her right to
refuse to contribute without any reprisal;
(D) A corporation or a separate segregated fund established by
a corporation: (i) To solicit contributions to the fund from any
person other than the corporation's stockholders and their families
and its executive or administrative personnel and their families;
or (ii) to contribute any corporate funds;
(E) A corporation or a separate segregated fund established by
a corporation to receive contributions to the fund from any person
other than the corporation's stockholders and their immediate
families and its executive or administrative personnel and their
immediate families;
(F) 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 a separate segregated fund;
(G) A separate segregated fund to make any contribution,
directly or indirectly, in excess of $1,000 in connection with or
on behalf of any campaign for nomination or election to 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, supporting or aiding
the nomination or election of any candidate for any such office;
(H) A corporation to pay, give or lend or to authorize
payment, giving or lending of any moneys or other things of value
belonging to the corporation to a separate segregated fund for any
purpose. This provision does not prohibit 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 its employees represented by a bona fide political action
committee to use the real property of the corporation solely to
establish, administer and solicit contributions to the fund of the
political action committee, subject to the rules of the State
Election Commission promulgated in accordance with said subsection.
No corporation may use its property, real or personal, facilities,
equipment, materials or services for the purpose of expressly
advocating the election or defeat of a clearly identified candidate
for state, district, county or municipal office.
(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 is guilty of a misdemeanor and, on conviction, shall be
fined not more than $10,000. No corporation may reimburse any
person the amount of any fine imposed pursuant to this section.
(d) 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 propose rules
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 consistent, insofar as practicable, with
the rules and regulations promulgated by the Federal Election
Commission to carry out similar or identical provisions of 2 U.S.C.
§441b.
(e) In addition to the powers and duties set forth in article
one-a of this chapter, the State Election Commission has the
following powers and duties:
(1) To investigate, upon complaint or on its own initiative,
any alleged violations or irregularities of this article.
(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) To involve the aid of any circuit court in the execution
of its subpoena power.
(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) The Attorney General shall, when requested, provide legal
and investigative assistance to the State Election Commission.
(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 discloses the fact of any complaint,
investigation or report or any part thereof, or any proceedings
thereon, is guilty of a misdemeanor and, upon conviction, shall be
fined not less than $1,000, nor more than $5,000, and shall be
imprisoned confined in jail not less than six months nor more than
one year.
(i) The amendments to this section enacted during the second
extraordinary session of 2008 are intended to conform to the
existing proscription to constitutionally permissible limits and
not to create a new offense or offenses.
(j) The effective date of the amendments to this section enacted during the second extraordinary legislative session of 2008
shall be is October 1, 2008.
NOTE: This bill modifies the definition of "express advocacy"
to make it consistent with recent U.S. Supreme Court holdings. The
bill also increases the number of persons who must receive a
broadcast or nonbroadcast communication naming a clearly identified
candidate before it can be considered as an electioneering
communication. Finally, the bill creates an exemption from the
prohibition on corporate political activity for qualified
non-profit corporations that have as their only express purpose,
the promotion of political ideas.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Email
Webmaster | © 2024 West Virginia Legislature **
