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House Bill 4130 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 4130
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Introduced January 19, 2010; referred to the
Committee on the Judiciary then Finance.]
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
Treasurer's Unclaimed Property Trust 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; providing for penalties; 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 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 paid the per diem and expense reimbursement
established for the Legislature in section seven, article two-a,
chapter four of this code for 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.
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, including certain general revenue and fees paid by
lawyers and citizens who use the courts, furthers important state
interests in protecting the integrity of judicial elections and
serves to protect the public fisc.
§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
election 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 who are registered voters in this state.
(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 of not
less than $10 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
S
tate 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
S
tate Election Commission. Funds may
also be accepted from any gift, grant, bequest, endowment fund or
donation which may be received by the
S
tate 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
S
tate 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 unclaimed property administrator of the State
Treasurer's Office shall transfer the amount of $1 million from the
Unclaimed Property Trust Fund 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
S
tate 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.
§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. The maximum individual exploratory
contribution which may be accepted from any person including
immediate family members is $1,000. A participating candidate may
contribute or obligate up to $1,000 of his or her own money for
exploratory purposes. Any exploratory contributions 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 $25 or
more shall include the contributor's signature, printed name, street
address, zip code, telephone number, occupation and name of
employer. Receipts for exploratory
contributions of less than $25
shall contain, at a minimum, the contributor's signature, printed
name, street address and zip code. Contributions which are not
acknowledged by a proper receipt do not qualify as exploratory
contributions.
(c) An exploratory contribution from one person may not be made
in the name of another person.
(d) At the end 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 that month to the Secretary of State.
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
exploratory contributions may 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
$10 nor more than $100. 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
S
tate 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. For qualifying
contributions of less than $25, the contributors
'
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. A minimum of ten percent of the
qualifying contributions 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 end 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 that month to the Secretary of State. If the candidate decides not to run for office
all unspent or unobligated qualifying contributions shall be sent
to the
S
tate Election Commission for deposit in the fund. If the
candidate decides to run for office as a nonparticipating candidate
the 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 forty-eight hours
after the close of the qualifying period.
§3-12-10. Certification of candidates.
(a) To be certified, a participating candidate shall apply to
the
S
tate 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 of
qualifying contributions, the
S
tate 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 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
S
tate 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) If the
S
tate Election Commission certifies that a
participating candidate is eligible to receive public campaign
financing under the provisions of this section, the
S
tate Election
Commission shall within forty-eight hours issue a check for or transfer to the candidate's campaign depository account an amount
equal to the initial public 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
S
tate 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
S
tate
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
S
tate Election Commission determines
that the candidate whose contribution is challenged has sufficient
qualifying contributions to be certified as a candidate under this
section without considering the challenge. 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
S
tate 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
S
tate 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
S
tate Election
Commission.
(i) The determination of any issue before the
S
tate Election
Commission is the final administrative determination. Any person
adversely affected by a decision of the
S
tate 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
S
tate Election Commission. Any candidate seeking
to withdraw shall file a written request with the
S
tate 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
S
tate 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 shall make payments from the
fund for the 2012 primary election campaign period available to a
certified candidate within forty-eight hours after the date on which
the candidate is certified.
(1) In a contested primary election, a certified candidate may
receive initial campaign financing from the fund in an amount not
to exceed $200,000.
(2) In an uncontested primary election, a certified candidate
may receive campaign financing from the fund equal to twenty-five
percent of the amount available to a candidate in a contested
primary election.
(b) The State Election Commission shall make payments from the
fund for the 2012 general election campaign period available to a
certified candidate within forty-eight hours after the primary
election results are certified by the Secretary of State.
(1) In a contested general election, a certified candidate may
receive from the fund an amount not to exceed $350,000.
(2) In an uncontested general election, a certified candidate
may receive from the fund campaign financing equal to ten percent
of the amount available to a candidate in a contested general
election for the same office.
(c) The State Election Commission shall distribute 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 distribute 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
distribute 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 that a nonparticipating candidate's
campaign expenditures or obligations, in the aggregate, have
exceeded by twenty percent the initial funding available under
section eleven of this article to any certified candidate running
for the same office, the commission shall immediately release
additional funds in the amount of the reported excess to any
opposing certified candidate for the same office.
(f) If the
S
tate Election Commission determines from any
reports filed pursuant to this chapter 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 section eleven of this article to
any certified candidate running for the same office, the commission
shall immediately release 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 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 section eleven of this article to
any certified candidate running for the same office, the
S
tate
Election Commission shall immediately release 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 are limited to two times the initial funding for a
certified candidate.
§3-12-12. Restrictions on contributions and expenditures.
(a) A certified candidate or his or her committee may not
accept contributions from any private source, including the personal
funds of the candidate and the candidate's immediate family, during
the primary or general election campaign periods except as permitted by this article.
(b) After filing the declaration of intent and 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 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
S
tate
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
S
tate 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 last day of each month, a report of all exploratory and
qualifying contributions along with their receipts and an accounting
of all expenditures and obligations. The reports shall be on forms
or in a format prescribed by the Secretary of State.
(c) No later than seventy-two hours 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.
(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 except those required by subdivision
three, 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
S
tate 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
S
tate 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
S
tate 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
S
tate Election Commission; Secretary of
State.
(a) In addition to its other duties, the
S
tate 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
S
tate 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.
(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 to assure that a
minimum of $2.8 million is 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.
(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
S
tate 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
S
tate 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
S
tate 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
S
tate 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
S
tate Election
Commission may order the candidate to pay to the
S
tate 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
S
tate Election
Commission shall order the candidate to pay to the
S
tate 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
S
tate 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
S
tate Election Commission or
returned to the fund under this article, the
S
tate Election
Commission may order the candidate to pay an amount equal to three
times the amount that should have been paid to the
S
tate Election
Commission or returned to the fund.
(d) In addition to any other penalties imposed by law, the
S
tate 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
S
tate 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.
NOTE: The purpose of this bill is to
provide alterative
campaign financing options for candidates for the West Virginia
Supreme Court of Appeals in 2012 through public funds funded through
attorney fees, special court fees, and funds from the Treasurer's
Unclaimed Property Trust Fund. Candidates participating in the
Pilot Project would be required to raise a certain amount of
campaign funds to qualify for the program and receive public funds.
Candidates accepting public funds are thereafter prohibited from
raising or spending money from private sources.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.