SB539 SFA Palumbo 3-25 #1

Baker 7816

Senator Palumbo moved to amend the bill on pages five through seven, by striking out all of section one and inserting a new section, designated section one, to read as follows:

§3-8-1. Provisions to regulate and control elections.

(a) The Legislature finds that:

(1) West Virginia’s population is 1,808,344, ranking 37th among the fifty states.

(2) State Senate districts have a population of approximately one hundred six thousand three hundred seventy-three, and the average Delegate district has a population of approximately thirty-one thousand, one hundred seventy-eight. The size of these districts is substantially smaller than the United States Senatorial and Congressional Districts.

(3) When the relatively small size of the state’s legislative and other voting districts is combined with the economics and typical uses of various forms of electioneering communication, history shows that nonbroadcast media is and will continue to be a widely used means of making campaign related communications to target relevant audiences. Consequently, nonbroadcast communications are prevalent during elections.

(4) Disclosure provisions are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.

(5) When narrowly tailored to minimize any infringement on the right to free speech guaranteed by the United States and West Virginia Constitutions, or upon the rights to engage in political debate and discussion, disclosure of contributions and expenditures by entities that engage in electoral advocacy is an appropriate means to safeguard the electoral process against the appearance of improper influence from large campaign expenditures.

(5) (6) Disclosure of expenditures serve serves a substantial governmental interest in informing the electorate and preventing the corruption of or appearance of corruption in the political process.

(6) (7) Disclosure by persons and entities that make expenditures for communications that expressly advocate the election or defeat of clearly identified candidates or perform its functional equivalent, is a reasonable and minimally restrictive method of furthering First Amendment values by public exposure of the state election system.

(7) (8) Failing to regulate nonbroadcast media messages would permit those desiring to influence elections to avoid the principles and policies that are embodied in existing state law.

(8) (9) The regulation of the various types of nonbroadcast media in addition to broadcast media, is tailored to meet the circumstances found in the State of West Virginia.

(9) (10) Nonbroadcast media such as newspapers, magazines or other periodicals have proven to be effective means of election communication in West Virginia. Broadcast, satellite and nonbroadcast media have all been used to influence election outcomes.

(10) (11) Certain nonbroadcast communications, such as newspaper inserts, can be more effective campaign methods than broadcast media because such communications can be targeted to registered voters or historical voters in the particular district. In contrast, broadcasted messages reach all of the general public, including person ineligible to vote in the district.

(11) (12) Nonbroadcast media communications in the final days of a campaign can be particularly damaging to the public’s confidence in the election process because they reduce or make impossible an effective response.

(12) (13) Identifying those funding nonbroadcast media campaigns in the final days of a campaign may at least permit voters to evaluate the credibility of the message.

(13) (14) In West Virginia, contributions up to the amounts specified in this article allow contributors to express their opinions, level of support and their affiliations.

(14) (15) In West Virginia, campaign expenditures by entities and persons who are not candidates have been increasing. Public confidence is eroded when substantial amounts of such money, the source of which is hidden or disguised, is expended. This is particularly true during the final days of a campaign.

(15) (16) In West Virginia, contributions to political organizations, defined in Section 527(e)(1) of the Internal Revenue Code of 1986, substantially larger than the amounts permitted to be received by a candidate’s political committee have been recorded and are considered by the Legislature to be large contributions.

(16) (17) Independent expenditures intended to influence candidates’ campaigns in the state are increasingly utilizing nonbroadcast media to support or defeat candidates.

(17) (18) Identification of persons or entities funding political advertisements electoral advocacy assists in enforcement of the contribution and expenditure limitations established by this article and simply informs voters of the actual identities of persons or entities advocating the election or defeat of candidates.

(18) (19) Identification of persons or entities funding political advertisements electoral advocacy allows voters to evaluate the credibility of the message contained in the advertisement.

(19) (20) Disclosure of the identity of persons or entities funding political communications regarding candidates electoral advocacy bolsters the right of listeners to be fully informed.

(b) Political campaign contributions, receipts and expenditures of money, advertising, influence and control of employees, and other economic, political and social control factors incident to primary, special and general elections shall be regulated and controlled by the provisions of this article and other applicable provisions of this chapter.;

And,

On pages eleven through fourteen, section one-a, by striking out all of subdivisions (14) and (15) and inserting in lieu thereof two new subdivisions, designated subdivisions (14) and (15), to read as follows:

(12) (14) Electioneering communication. —

(A) “Electioneering communication” means any paid communication made by broadcast, cable or satellite signal, mass mailing, telephone bank, billboard advertisement 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, circuit judge, family court judge, magistrate or any county office;

(ii) Is publicly disseminated within:

(I) Thirty days before a the primary election day at which the nomination for office sought by the candidate is to be determined; or

(II) Sixty days before a the general or special election day 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 are effective 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 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 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) (15) “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 House of Delegates”, “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”;

(B) Communications of campaign slogans or individual words, that 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”, etc.; or

(C) Is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.

Adopted

Rejected