ENGROSSED
Senate Bill No. 632
(By Senators Kessler, Dempsey, Hunter, Caruth, Deem, Lanham,
McKenzie and Weeks)
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[Originating in the Committee on the Judiciary;
reported February 17, 2006.]
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A BILL to amend and reenact §3-8-1a, §3-8-2b and §3-8-8 of the Code
of West Virginia, 1931, as amended, all relating generally to
electioneering communications; definitions; excluding
candidates for federal office from requirement to disclose
electioneering communications; and clarifying effect of
electioneering communications provisions on provision
regarding corporate contributions.
Be it enacted by the Legislature of West Virginia:
That §3-8-1a, §3-8-2b 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) "Broadcast, cable, or satellite communication" means a
communication that is publicly distributed by a television station,
radio station, cable television system or satellite system.
(3) "Candidate" means an individual who:
(A) Has filed a certificate of announcement under section
seven, article five of this chapter or a municipal charter;
(B) Has filed 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.
(4) "Candidate's committee" means a political committee
established with the approval of or in cooperation with one pre-
candidate or a candidate or a prospective candidate
to explore the
possibilities of seeking a particular office and/or or to support
or aid his or her nomination or election to an office in one 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 of for the
purpose of contribution limits.
(5) "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".
(6) "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.
(7) "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 airtime on broadcast, cable or satellite radio
and television stations, the cost of disseminating printed
materials, establishing a telephone bank, studio time, use of
facilities and the charges for a broker to purchase airtime.
(8) "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 five thousand
dollars 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.
(9) "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.
(10) (A) "Electioneering communication" means any paid
communication made by broadcast, cable or satellite signal, mass
mailing, telephone bank, leaflet, pamphlet, flyer or outdoor
advertising or published in any newspaper, magazine or other
periodical that:
(i) Refers to a clearly identified candidate for a statewide
office Governor, Secretary of State, Attorney General, Treasurer,
Auditor, Commissioner of Agriculture, Supreme Court of Appeals or the Legislature;
(ii) Is publicly disseminated within:
(a) Thirty days before a primary election at which the
nomination for office sought by the candidate is to be determined;
or
(b) 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.
(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:
(a) A bona fide news account communicated in a publication of
general circulation or on through a licensed broadcasting facility;
and
(b) 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) A communication that is required to be reported to the
State Election Commission or the Secretary of State
as an
expenditure pursuant to any provision of this article, other than
section two-b 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 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.
(11) "Financial agent" means any person individual acting for
and by himself or herself, or any two or more natural persons
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.
(12) "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.
(13) "Independent expenditure" means an expenditure made by a
person an individual other than a candidate or a candidate's
committee in support of or opposition to the nomination or election
of one or more clearly identified candidates and without
consultation or coordination with or at the request or suggestion
of the candidate whose nomination or election the expenditure
supports or opposes or the candidate's agent. Supporting or
opposing the election of a clearly identified candidate includes
supporting or opposing the candidates of a clearly identified
political party. An expenditure which does not meet the criteria
for an independent expenditure is considered a contribution.
(14) "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.
(15) "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.
(16) "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.
(17) "Person" means an individual, partnership, committee,
association and any other organization or group of individuals.
(18) "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 or the passage
or defeat of one or more ballot issues.
(19) "Political party" means a political party as defined by
section eight, article one, chapter three of this code or any
committee established, financed, maintained or controlled by the
party, including any subsidiary, branch or local unit thereof and including national or regional affiliates of the party.
(20) "Political purposes" means supporting or opposing the
nomination, election or defeat of one or more candidates or the
passage or defeat of a ballot issue, supporting the retirement of
the debt of a candidate or political committee or the
administration or activities of an established political party or
an organization which has declared itself a political party and
determining the advisability of becoming a candidate under the pre-
candidacy financing provisions of this chapter.
(21) "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 or more individuals in the state in the case of a
candidacy for statewide office and five hundred or more individuals
in the district in the case of a candidacy for the Legislature.
(22) "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.
(23) "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.
§3-8-2b. Disclosure of electioneering communications.
(a) Every person who has spent a total of five thousand
dollars or more for the direct costs of purchasing, producing or disseminating electioneering communications during any calendar
year shall, within twenty-four hours of each disclosure date, file
with the Secretary of State a statement which contains:
(1) The name of the person making the expenditure, the name of
any person sharing or exercising direction or control over the
activities of the person making the expenditure and the name of the
custodian of the books and accounts of the person making the
expenditure;
(2) If the person making the expenditure is not an individual,
the principal place of business of the partnership, committee,
association, organization or group which made the expenditure;
(3) The amount of each expenditure of more than one thousand
dollars made for electioneering communications during the period
covered by the statement and the name of the person to whom the
expenditure was made;
(4) The elections to which the electioneering communications
pertain and the names, if known, of the candidates referred to or
to be referred to therein; and
(5) The names and addresses of any contributors who
contributed a total of more than one thousand dollars between the
first day of the preceding calendar year and the disclosure date
and whose contributions were used to pay for electioneering
communications.
(b) With regard to the contributors required to be listed
pursuant to subdivision (5), subsection (a) of this section, the
statement shall also include:
(1) The month, day and year that the contributions of any
single contributor exceeded two hundred fifty dollars;
(2) If the contributor is a political action committee, the
name and address the political action committee registered with the
State Election Commission;
(3) If the contributor is an individual, the name and address
of the individual, his or her occupation, the name and address of
the individual's current employer, if any, or, if the individual is
self-employed, the name and address of the individual's business,
if any;
(4) A description of the contribution, if other than money;
(5) The value in dollars and cents of the contribution.
(c)(1) Any person who makes a contribution for the purpose of
funding the direct costs of purchasing, producing or disseminating
an electioneering communication under this section shall, at the
time the contribution is made, provide his or her name and address
to the recipient of the contribution;
(2) Any individual who makes contributions totaling two
hundred fifty dollars or more between the first day of the
preceding calendar year and the disclosure date for the purpose of
funding the direct costs of purchasing, producing or disseminating
electioneering communications shall, at the time the contribution
is made, provide the name of his or her occupation and of his or
her current employer, if any, or, if the individual is self-
employed, the name of his or her business, if any, to the recipient
of the contribution.
(d) In each electioneering communication, a statement shall
appear or be presented in a clear and conspicuous manner that:
(1) Clearly indicates that the electioneering communication is
not authorized by the candidate or the candidate's committee; and
(2) Clearly identifies the person making the expenditure for
the electioneering communication: Provided, That if the
electioneering communication appears on or is disseminated by
broadcast, cable or satellite transmission, the statement required
by this subsection must be both spoken clearly and appear in
clearly readable writing at the end of the communication.
(e) Within five business days after receiving a disclosure of
electioneering communications statement pursuant to this section,
the Secretary of State shall make information in the statement
available to the public through the internet.
(f) For the purposes of this section, a person is considered
to have made an expenditure when the person has entered into a
contract to make the expenditure at a future time.
(g) The Secretary of State is hereby directed to propose
legislative rules and emergency rules implementing this section for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code.
(h) If any person, including, but not limited to, a political
organization (as defined in Section 527(e)(1) of the Internal
Revenue Code of 1986) makes, or contracts to make, any expenditure
for electioneering communications which is coordinated with and
made with the cooperation, consent or prior knowledge of a candidate, candidate's committee or agent of a candidate, the
expenditure shall be treated as a contribution and expenditure by
the candidate. If the expenditure is coordinated with and made with
the cooperation or consent of a state or local political party or
committee, agent or official of that party, the expenditure shall
be treated as a contribution to and expenditure by the candidate's
party.
(i) This section does not apply to candidates for federal
office. This section is not intended to restrict or to expand any
limitations on, obligations of or prohibitions against any
candidate, committee, agent, contributor or contribution contained
in any other provision of this chapter.
§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, or agent or person on behalf of such corporation,
whether incorporated under the laws of this or any other state or
of a foreign country, may pay, give, or lend or authorize to be
paid, given or lent any money or other thing of value belonging to
such the corporation, to any candidate, financial agent, political
committee or other person for the payment of any primary or other
election expenses whatever. No person may solicit or receive such
any payment, contribution or other thing from any corporation or
from any officer, or agent thereof or other person acting on behalf of such the corporation.
(b)(1) The provisions of this section shall do not be deemed
to prohibit a corporation from:
(A) Direct communications Directly communicating, other than
by newspapers of general circulation, radio, television or
billboard advertising likely to reach the general public, by a
corporation to with its stockholders and executive or
administrative personnel and their families on any subject;
(B) Conducting nonpartisan registration and get-out-the-vote
campaigns by a corporation aimed at its stockholders and executives
executive or administrative personnel and their families; and
(C) The solicitation of Soliciting, through any officer, agent
or person acting on behalf of the corporation, contributions to a
separate segregated fund to be utilized used for political
purposes. by any corporate officer, agent or any person on behalf
of a corporation. Any separate segregated fund shall be deemed to
be is considered a political action committee for the purpose of
this article and is subject to all reporting requirements thereof
applicable to political action committees.
(2) It shall be is unlawful for:
(A) For A separate segregated fund to make a primary or other
election contribution or expenditure by utilizing using money or
anything of value secured: (i) By physical force, job
discrimination or financial reprisal; or (ii) by the threat of
force, job discrimination or financial reprisal; or (iii) as a
condition of employment; or by moneys obtained (iv) in any commercial transaction;
(B) For Any person soliciting a stockholder or executive or
administrative personnel and members of their family families for
a contribution to such a separate segregated fund to fail to inform
such the person solicited of the political purposes of the separate
segregated fund at the time of such the solicitation;
(C) For Any person soliciting any other person for a
contribution to a separate segregated fund to fail to inform the
other person solicited at the time of the solicitation of his or
her right to refuse to contribute without any reprisal;
(D) For 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) For 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) For A corporation to engage in job discrimination or to
discriminate in job promotion or transfer because of an employee's
failure to make a contribution to a separate segregated fund;
(G) For A separate segregated fund to make any contribution,
directly or indirectly, in excess of one thousand dollars in
connection with or on behalf of any campaign for nomination or election to or on behalf of any elective office in the state or any
of its subdivisions, or in connection with or on behalf of any
committee or other organization or person engaged in furthering,
advancing, supporting or aiding the nomination or election of any
candidate for any such office;
(H) For A corporation to pay, give or lend or to authorize to
be paid, given or lent 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 shall does not be
deemed to 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 thereof 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 as provided in promulgated in accordance with
said subsection. No corporation may use its property, real or
personal, facilities, equipment, materials or services of a
corporation may be used for the purpose of influencing any voter or
voters: (i) To vote for a particular candidate or in any
particular manner; or (ii) to influence the result of any election.
(3) For the purposes of this section, the term "executive or administrative personnel" means individuals employed by a
corporation who are paid on a salary rather than hourly basis and
who have policy-making, managerial, professional or supervisory
responsibilities.
(c) Any person or corporation violating any provision of this
section shall be is guilty of a misdemeanor and, on conviction,
shall be fined not more than ten thousand dollars. 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 one thousand dollars, nor more than five
thousand dollars, and shall be imprisoned in jail not less than six
months nor more than one year.
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