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Introduced Version House Bill 2810 History

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hb2810 intr
H. B. 2810


(By Delegates Hatfield, Brown, Webster, Perdue,
Hrutkay and Browning)

[Introduced March 1, 2005; referred to the
Committee on the Judiciary.]



A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §3-8A-1, §3-8A-2, §3-8A-3, §3-8A-4 and §3-8A-5, all relating to disclosure requirements for political campaign advertisements; and providing criminal and civil penalties.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated
§3-8A-1, §3-8A-2, §3-8A-3, §3-8A-4 and §3-8A-5, all to read as follows:
ARTICLE 8A. DISCLOSURE REQUIREMENTS FOR POLITICAL CAMPAIGN ADVERTISEMENTS.

§3-8A-1. Definitions.

As used in this article:
(1) "Advertisement" means any message appearing in the print media, on television or on radio that constitutes a contribution or expenditure under this article.
(2) "Candidate" means an individual who has filed a precandidacy statement pursuant to the provisions of section five-e, article eight of this chapter, has qualified to have his or her name listed on the ballot of any election, or who has declared his or her intention to seek nomination or election through a petition or write-in procedure for any state, regional, county, municipal or district office which is to be filled at an election.
(3) "Full-screen" means the only picture appearing on the television screen during the oral disclosure statement contains the disclosing person, that the picture occupies all visible space on the television screen, and that the image of the disclosing person occupies at least fifty percent of the vertical height of the television screen.
(4) "Political committee" means all of those persons and entities required to keep accounts and file financial statements pursuant to the provisions of section five, article eight of this chapter.
(5) "Political party organization" means any political party executive committee or any political committee that operates under the direction of a political party executive committee or political party chair.
(6) "Print media" means billboards, cards, newspapers, newspaper inserts, magazines, mass mailings, pamphlets, fliers, periodicals and outdoor advertising facilities. A "mass mailing" is a mailing with more than five hundred pieces.
(7) "Radio" means any radio broadcast station that is subject to the provisions of 47 U.S.C. §§315 and 317.
(8) "Scan line" means a standard term of measurement used in the electronic media industry calculating a certain area in a television advertisement.
(9) "Sponsor" means a candidate, political committee, political party organization, political action committee, public question committee, individual or other entity that purchases an advertisement.
(10) "Television" means any television broadcast station, cable television system, wireless-cable multipoint distribution system, satellite company or telephone company transmitting video programming that is subject to the provisions of 47 U.S.C. §§315 and 317.
(11) "Unobscured" means the only printed material that may appear on the television screen is a visual disclosure statement required by law, and nothing is blocking the view of the disclosing person's face.
§3-8A-2. Basic disclosure requirements for all political campaign advertisements.

(a) Basic Requirements. -- It is unlawful for any sponsor to sponsor an advertisement in the print media or on radio or television that constitutes an expenditure or contribution required to be disclosed under this article unless all the following conditions are met:
(1) It bears the legend or includes the statement:
"Paid for by ______ [Name of candidate, political committee, political party organization, political action committee, public question committee, individual, or other sponsor]."
In television advertisements, this disclosure shall be made by visual legend.
(2) The name used in the labeling required in subdivision (1) of this subsection is the name that appears on the financial statement of the individual or organization filed under the provisions of section five, article eight of this chapter.
(3) The sponsor states in the advertisement its position for or against a public question, provided that this subdivision applies only if the advertisement is made for or against a public question.
(4) In a print media advertisement supporting or opposing the nomination or election of one or more clearly identified candidates, the sponsor states whether it is authorized by a candidate. The visual legend in the advertisement shall state either "Authorized by [name of candidate], candidate for [name of office]" or "Not authorized by a candidate." This subdivision does not apply if the sponsor of the advertisement is the candidate the advertisement supports or that candidate's political committee.
(5) In a print media advertisement that identifies a candidate the sponsor is opposing, the sponsor discloses in the advertisement the name of the candidate who is intended to benefit from the advertisement. This subdivision applies only when the sponsor coordinates or consults about the advertisement or the expenditure for it with the candidate who is intended to benefit. If an advertisement described in this section is jointly sponsored, the disclosure statement shall name all the sponsors.
(b) Size Requirements. -- In a print media advertisement covered by subsection (a) of this section, the height of all disclosure statements required by that subsection shall be at least five percent of the height of the printed space of the advertisement, but not less than twelve points in size. In an advertisement in a newspaper or a newspaper insert, the total height of the disclosure statement need not constitute five percent of the printed space of the advertisement if the type of the disclosure statement is at least twenty-eight points in size. If a single advertisement consists of multiple pages, folds or faces, the disclosure requirement of this section applies only to one page, fold or face. In a television advertisement covered by subsection (a) of this section, the visual disclosure legend shall constitute thirty-two scan lines in size. In a radio advertisement covered by subsection (a) of this section, the disclosure statement shall last at least two seconds, if the statement is spoken so that its contents may be easily understood.
(c) Misrepresentation of Authorization. -- Any candidate, political committee, political party organization, political action committee, public question committee, individual or other sponsor making an advertisement in the print media or on radio or television bearing any legend required by subsection (a) of this section that misrepresents the sponsorship or authorization of the advertisement is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than one hundred thousand dollars or confined in jail for not more than one year, or both fined and confined.
§3-8A-3. Disclosure requirements for television and radio advertisements supporting or opposing the nomination or election of one or more clearly identified candidates.

(a) Expanded disclosure requirements. -- Any political campaign advertisement on radio or television shall comply with the expanded disclosure requirements set forth in this section. To the extent that it provides the same information required by section two of this article, a statement made pursuant to this section satisfies the requirements of section two of this article for the same advertisement.
(b) Disclosure requirements for television. --
(1) Candidate advertisements on television. -- Television advertisements purchased by a candidate or by a political committee supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the candidate and containing at least the following words: "I am (or "This is____") [name of candidate], candidate for [name of office], and I (or "my campaign____") sponsored this ad." This subdivision applies only to an advertisement that mentions the name of, shows the picture of, transmits the voice of, or otherwise refers to an opposing candidate for the same office as the sponsoring candidate.
(2) Political party advertisements on television. -- Television advertisements purchased by a political party organization supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the chair, executive director or treasurer of the political party organization and containing at least the following words: "The [name of political party organization] sponsored this ad opposing/supporting [name of candidate] for [name of office]." The disclosed name of the political party organization shall include the name of the political party as it appears on the ballot.
(3) Political action committee advertisements on television. -- Television advertisements purchased by a political action committee supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the chief executive officer or treasurer of the political action committee and containing at least the following words: "The [name of political action committee] political action committee sponsored this ad opposing/supporting [name of candidate] for [name of office]." The name of the political action committee used in the advertisement shall be the name that appears on the financial statement filed under the provisions of section five, article eight of this chapter.
(4) Advertisements on television by an individual. -- Television advertisements purchased by an individual supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the individual and containing at least the following words: "I am [individual's name], and I sponsored this advertisement opposing/supporting [name of candidate] for [name of office]."
(5) Advertisements on television by another sponsor. -- Television advertisements purchased by a sponsor other than a candidate, a political committee, a political party organization, a political action committee or an individual which supports or opposes the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the chief executive or principal decision maker of the sponsor and containing at least the following words: "[Name of sponsor] sponsored this ad."
(6) All advertisements on television. -- In any television advertisement described in subdivisions (1) through (4) of this subsection, an unobscured, full-screen picture containing the disclosing individual, either in photographic form or through the actual appearance of the disclosing individual on camera, shall be featured throughout the duration of the disclosure statement.
(c) Disclosure requirements for radio. --
(1) Candidate advertisements on radio. -- Radio advertisements purchased by a candidate or by a political committee supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the candidate and containing at least the following words: "I am (or "This is____") [name of candidate], candidate for [name of office], and this ad was paid for (or "sponsored" or "furnished") by [name of political committee that paid for the advertisement]." This subdivision applies only to an advertisement that mentions the name of, transmits the voice of, or otherwise refers to an opposing candidate for the same office as the sponsoring candidate.
(2) Political party advertisements on radio. -- Radio advertisements purchased by a political party organization supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the chair, executive director or treasurer of the political party organization and containing at least the following words: "This ad opposing/supporting [name of candidate] for [name of office] was paid for (or "sponsored" or "furnished") by [name of political party]." The disclosed name of the political party organization shall include the name of the political party as it appears on the ballot.
(3) Political action committee advertisements on radio. -- Radio advertisements purchased by a political action committee supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the chief executive officer or treasurer of the political action committee and containing at least the following words: "This ad opposing/supporting [name of candidate] for [name of office] was paid for (or "sponsored" or "furnished") by [name of political action committee] political action committee." The name of the political action committee used in the advertisement shall be the name that appears on the financial statement filed under the provisions of section five, article eight of this chapter.
(4) Advertisements on radio by an individual. -- Radio advertisements purchased by an individual supporting or opposing the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the individual and containing at least the following words: "I am [individual's name], and this ad opposing/supporting [name of candidate] for [name of office] was paid for (or "sponsored" or "furnished") by me."
(5) Advertisements on radio by another sponsor. -- Radio advertisements purchased by a sponsor other than a candidate, a political committee, a political party organization, a political action committee or an individual which supports or opposes the nomination or election of one or more clearly identified candidates shall include a disclosure statement spoken by the chief executive or principal decision maker of the sponsor and containing at least the following words: "[Name of sponsor] paid for (or "sponsored" or "furnished") this ad."
(d) Placement of Disclosure Statement in Television and Radio Advertisements. -- In advertisements on television, a sponsor may place the disclosure statement required by this section at any point during the advertisement, except if the duration of the advertisement is more than five minutes, the disclosure statement shall be made both at the beginning and end of the advertisement. The sponsor may provide the oral disclosure statement required by this section at the same time as the visual disclosure required under the Communications Act of 1934, 47 U.S.C. §§315 and 317, is shown. But any visual disclosure legend shall be at least 32 scan lines in size. For advertisements on radio, the placement of the oral disclosure statement shall comply with the requirements of the Communications Act of 1934, 47 U.S.C. §§315 and 317.
(e) Choice of supporting or opposing a candidate. -- In its oral disclosure statement, a sponsoring political party organization, political action committee, individual or other noncandidate sponsor shall choose either to identify an advertisement as supporting or opposing the nomination or election of one or more clearly identified candidates.
(f) Joint sponsors. -- If an advertisement described in this section is jointly sponsored, the disclosure statement shall name all the sponsors and the disclosing individual shall be one of those sponsors. If a candidate is one of the sponsors, that candidate shall be the disclosing individual, and if more than one candidate is the sponsor, at least one of the candidates shall be the disclosing individual.
(g) Legal remedy. -- Pursuant to the conditions established in subdivisions (1), (2), and (3) of this subsection, a candidate for an elective office who complied with the television and radio disclosure requirements throughout that candidate's entire campaign has a monetary remedy in a civil action against: (i) An opposing candidate or political committee whose television or radio advertisement violates these disclosure requirements; and (ii) against any political party organization, political action committee, individual, or other sponsor whose advertisement for that elective office violates these disclosure requirements:
(1) Any plaintiff candidate in a race in an action under this section shall complete and file a Notice of Complaint Regarding Failure to Disclose on Television or Radio Campaign Advertising with the Secretary of State after the airing of the advertisement but no later than the five days after the day on which the election occurred. The timely filing of this notice preserves the candidate's right to bring an action in circuit court any time within ninety days after the election.
(2) (A) Upon receiving a favorable verdict, the plaintiff candidate shall receive a monetary award of actual damages. The price of actual damages shall be calculated as the total dollar amount of television and radio advertising time that was aired and that the plaintiff candidate correctly identifies as being in violation of the disclosure requirements of this section. The plaintiff candidate shall also receive an award that trebles the amount of actual damages if:
(i) The plaintiff candidate can establish having notified or attempted to notify the sponsor of the advertisement properly by return-receipt mail about the failure of a particular advertisement or advertisements to comply with the disclosure requirements of this section; and
(ii) After the notice or attempted notice, the advertisement continued to be aired.
(B) The treble damages shall be calculated from the date on which the return-receipt notice was accepted or rejected by a defendant sponsoring candidate or political committee, political party organization, political action committee or individual. The plaintiff candidate or political committee shall send a copy of any return-receipt mailing to the Secretary of State as provided in subdivision (1) of this subsection within five days after the notice is returned to the possession of the candidate or political committee.
(C) The plaintiff candidate may bring the civil action personally or authorize his or her political committee to bring the civil action.
(3) A candidate who violates the disclosure requirements of this article and that candidate's campaign committee are jointly and severally liable for the payment of damages and attorneys' fees. If the candidate is held personally liable for any payment of damages or attorneys' fees, the candidate may not use or be reimbursed by funds from the candidate's campaign committee in paying any amount.
(h) Relation to the Communications Act of 1934. -- Television advertisements by a sponsor supporting or opposing the nomination or election of one or more clearly identified candidates shall comply with the oral disclosure requirements in this section. Those advertisements shall also comply with disclosure requirements under the Communications Act of 1934, 47 U.S.C. §§315 and 317 by use of visual legends. The content of those visual legends is specified by the Communications Act of 1934, 47 U.S.C. §§315 and 317, and this article. The size of those visual legends is determined by this article, which satisfies requirements under the Communications Act of 1934, 47 U.S.C. §§315 and 317. In the case of radio advertisements, the oral disclosure requirements under this section incorporate the content requirements under the Communications Act of 1934, 47 U.S.C. §§315 and 317.
(i) No additional liability of television or radio outlets. -- Television or radio outlets are not liable under this article for carriage of political advertisements that fail to include the disclosure requirements provided in this article.
(j) No criminal liability. -- Nothing in this section regarding the disclosure requirements in subsections (b) and (c) of this section creates criminal liability.
§3-8A-4. Scope of disclosure requirements.
The disclosure requirements of this article apply to any sponsor of an advertisement in the print media or on radio or television the cost or value of which constitutes an expenditure or contribution required to be disclosed under this article, except that the disclosure requirements of this article:
(1) Do not apply to an individual who makes uncoordinated independent expenditures aggregating less than one thousand dollars in a political campaign; and
(2) Do not apply to an individual who incurs expenses with respect to a public question.
§3-8A-5. Evidence that communications are "to support or oppose the nomination or election of one or more clearly identified candidates."

(a) Either of the following is a means, but not necessarily the exclusive or conclusive means, of proving that an individual or other entity acted "to support or oppose the nomination or election of one or more clearly identified candidates:"
(1) Evidence of financial sponsorship of communications to the general public that use phrases such as "vote for," "reelect," "support," "cast your ballot for," "(name of candidate) for (name of office)," "(name of candidate) in (year)," "vote against," "defeat," "reject," "vote pro-(policy position)" or "vote anti-(policy position)" accompanied by a list of candidates clearly labeled "pro-(policy position)" or "anti-(policy position)," or communications of campaign words or slogans, such as posters, bumper stickers, advertisements, etc., which say "(name of candidate)'s the One," "(name of candidate)!" or the names of two candidates joined by a hyphen or slash.
(2) Evidence of financial sponsorship of communications whose essential nature expresses electoral advocacy to the general public and goes beyond a mere discussion of public issues in that they direct voters to take some action to nominate, elect or defeat a candidate in an election. If the course of action is unclear, contextual factors such as the language of the communication as a whole, the timing of the communication in relation to events of the day, the distribution of the communication to a significant number of registered voters for that candidate's election, and the cost of the communication may be considered in determining whether the action urged could only be interpreted by a reasonable person as advocating the nomination, election or defeat of that candidate in that election.
(b) Notwithstanding the provisions of subsection (a) of this section, a communication is not subject to regulation as a contribution or expenditure under this article if it:
(1) Appears in a news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper or magazine, unless those facilities are owned or controlled by any political party or political committee;
(2) Is distributed by a corporation solely to its stockholders and employees; or
(3) Is distributed by any organization, association or labor union solely to its members or to subscribers or recipients of its regular publications, or is made available to individuals in response to their request, including through the Internet.




NOTE: The purpose of this bill is to provide disclosure requirements for political campaign advertisements. The bill also provides criminal penalties and civil remedies.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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