Senate Bill No. 2010
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Introduced June 24, 2008.]
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A BILL to amend and reenact §3-8-1, §3-8-1a, §3-8-4, §3-8-5 and
§3-8-8 of the Code of West Virginia, 1931, as amended; and to
amend and reenact §3-9-14 of said code, all relating to the
regulation and control of elections generally; legislative
findings related to the particular circumstances of West
Virginia which warrant regulation of nonbroadcast media;
defining terms; clarifying that statutory prohibitions and
criminal provisions relating to corporate election
communications apply only to express advocacy; and clarifying
offenses and penalties.
Be it enacted by the Legislature of West Virginia:
That §3-8-1, §3-8-1a, §3-8-4, §3-8-5 and §3-8-8 of the Code of
West Virginia, 1931, as amended, be amended and reenacted; and that
§3-9-14 of said code be amended and reenacted, all to read as
follows:
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-1. Provisions to regulate and control elections.
(a) The Legislature finds that:
(1) West Virginia has a relatively small population and has a
correspondingly small legislative and other voting districts.
(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 more prevalent during elections.
(4) 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.
(5) The regulation of the various types of nonbroadcast media
embodied within the amendments enacted during the Second
Extraordinary Session of two thousand eight, in addition to
broadcast media, is tailored to meet the unique circumstances found
in the State of West Virginia.
(6) Nonbroadcast means of communicating with potential voters
is just as much intended to influence the outcome of elections as
are broadcast means.
(7) In West Virginia, contributions up to the amounts
specified in this article adequately allow contributors to express
their opinions, level of support and their affiliations.
(8) In West Virginia, candidates can raise sufficient moneys
to fund effective campaigns from contributions no larger than the
amounts specified in this article.
(9) In West Virginia, campaign expenditures by entities and
persons who are not candidates have been increasing and 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.
(10) Large contributions and large expenditures by persons or
committees, other than the candidate, reduce public confidence in
the electoral process and increase the appearance that candidates
and elected officials will not act in the best interests of the
state's citizens generally.
(11) 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.
(12) Robust debate of issues, candidate interaction with the
electorate, and public involvement and confidences in the electoral
process have decreased as campaign expenditures by persons or
committees, other than the candidate, have increased.
(13) Independent expenditures intended to influence
candidates' campaigns in the state are increasingly utilizing
nonbroadcast media to support or defeat candidates.
(14) Citizen interest, participation and confidence in the
electoral process are lessened by excessively long and expensive
campaigns.
(15) Identification of persons or entities funding political
advertisements 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.
(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.
§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 a candidate
or a prospective candidate to explore the possibilities of seeking
a particular office or to support or aid his or her nomination or
election to an office in an election cycle. If a candidate directs or influences the activities of more than one active committee in
a current campaign, those committees shall be considered one
committee for the purpose of contribution limits.
(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:
Provided, That a nonmonetary
contribution is to be considered at fair market value for reporting
requirements and contribution limitations.
(7) "Corporate political action committee" means a political
action committee that is a separate segregated fund of a
corporation that may only accept contributions from its restricted
group as outlined by the rules of the State Election Commission.
(8) "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 costs of disseminating printed
materials, establishing a telephone bank, studio time, use of
facilities and the charges for a broker to purchase airtime.
(9) "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.
(10) "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.
(11) (A) "Electioneering communication" means any paid
communication made by broadcast, cable or satellite signal, mass
mailing, telephone bank,
leaflet, pamphlet, flyer or outdoor
advertising billboard advertising, or published in any newspaper,
magazine or other periodical that:
(i) Refers to a clearly identified candidate for Governor,
Secretary of State, Attorney General, Treasurer, Auditor,
Commissioner of Agriculture, Supreme Court of Appeals or the
Legislature;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election at which the
nomination for office sought by the candidate is to be determined;
or
(II) Sixty days before a general or special election at which the office sought by the candidate is to be filled; and
(iii) Is targeted to the relevant electorate.
(B) "Electioneering communication" does not include:
(i) A news story, commentary or editorial disseminated through
the facilities of any broadcast, cable or satellite television or
radio station, newspaper, magazine or other periodical publication
not owned or controlled by a political party, political committee
or candidate:
Provided, That a news story disseminated through a
medium owned or controlled by a political party, political
committee or candidate is nevertheless exempt if the news is:
(I) A bona fide news account communicated in a publication of
general circulation or through a licensed broadcasting facility;
and
(II) Is part of a general pattern of campaign-related news
that gives reasonably equal coverage to all opposing candidates in
the circulation, viewing or listening area;
(ii) Activity by a candidate committee, party executive
committee or caucus committee, or a political action committee that
is required to be reported to the State Election Commission or the
Secretary of State as an expenditure pursuant to section five of
this article or the rules of the State Election Commission or the
Secretary of State promulgated pursuant to such provision:
Provided, That independent expenditures by a party executive committee or caucus committee or a political action committee
required to be reported pursuant to subsection (b), section two of
this article are not exempt from the reporting requirements of this
section;
(iii) A candidate debate or forum conducted pursuant to rules
adopted by the State Election Commission or the Secretary of State
or a communication promoting that debate or forum made by or on
behalf of its sponsor;
(iv) A communication paid for by any organization operating
under Section 501(c)(3) of the Internal Revenue Code of 1986;
(v) A communication made while the Legislature is in session
which, incidental to promoting or opposing a specific piece of
legislation pending before the Legislature, urges the audience to
communicate with a member or members of the Legislature concerning
that piece of legislation;
(vi) A statement or depiction by a membership organization, in
existence prior to the date on which the individual named or
depicted became a candidate, made in a newsletter or other
communication distributed only to bona fide members of that
organization;
(vii) A communication made solely for the purpose of
attracting public attention to a product or service offered for
sale by a candidate or by a business owned or operated by a candidate which does not mention an election, the office sought by
the candidate or his or her status as a candidate; or
(viii) A communication, such as a voter's guide, which refers
to all of the candidates for one or more offices, which contains no
appearance of endorsement for or opposition to the nomination or
election of any candidate and which is intended as nonpartisan
public education focused on issues and voting history.
(12) "Expressly advocating" means any communication that:
(A) Uses phrases such as "vote for the Governor," "re-elect
your Senator," "support the Democratic nominee for Supreme Court,"
"cast your ballot for the Republican challenger for House of
Delegates," "Smith for House," "Bob Smith in '04," "vote Pro-Life"
or "vote Pro-Choice" accompanied by a listing of clearly identified
candidates described as Pro-Life or Pro-Choice, "vote against Old
Hickory," "defeat" accompanied by a picture of one or more
candidates, "reject the incumbent," or communications of campaign
slogans or individual words, that in context can have no other
reasonable meaning than to urge the election or defeat of one or
more clearly identified candidates, such as posters, bumper
stickers, advertisements, etc. which say "Smith's the One," "Jones
'06," "Baker"; or
(B) When taken as a whole and with limited reference to
external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the
election or defeat of one or more clearly identified candidates
because
(i) The electoral portion of the communication is
unmistakable, unambiguous, and suggestive of only one meaning; and
(ii) Reasonable minds could not differ as to whether it
encourages actions to elect or defeat one or more clearly
identified candidates or encourages some other kind of action.
(12) (13) "Financial agent" means any individual acting for
and by himself or herself, or any two or more individuals acting
together or cooperating in a financial way to aid or take part in
the nomination or election of any candidate for public office, or
to aid or promote the success or defeat of any political party at
any election.
(14) "Functional equivalent" means a communication that is
susceptible to no other reasonable interpretation other than as an
appeal to vote for or against an individual whose name is certified
pursuant to section nine, article five of this chapter, to appear
on the ballot at that election. "Functional equivalent" does not
mean a communication that:
(A) References no election, candidacy, political party,
opposing candidate or voting by the general public;
(B) Takes no position on any candidate's or officeholder's character, qualifications, or fitness for office; and
(C) Either:
(i) Focuses on a legislative, executive, or judicial matter or
issue;
and
(I) Urges a candidate to take a particular position or action
with respect to the matter or issue, or
(II) Urges the public to adopt a particular position and to
contact the candidate with respect to the matter or issue; or
(ii) Proposes a commercial transaction, such as purchase of a
book, video, or other product or service, or such as attendance
(for a fee) at a film exhibition or other event.
(13) (15) "Fund-raising event" means an event such as a
dinner, reception, testimonial, cocktail party, auction or similar
affair through which contributions are solicited or received by
such means as the purchase of a ticket, payment of an attendance
fee or by the purchase of goods or services.
(14) (16) "Independent expenditure" means an expenditure by a
person:
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
(A) Expressly advocating the election or defeat of a clearly
identified candidate; and
(B) That is not made in concert or cooperation with or at the
request or suggestion of such candidates, the candidates'
authorized political committee, or his or her agents, or a
political party committee or its agents.
Supporting or opposing the election of a clearly identified
candidate includes supporting or opposing the candidates of a
political party. An expenditure which does not meet the criteria
for an independent expenditure is considered a contribution.
(15) (17) "Mass mailing" means a mailing by United States
mail, facsimile or electronic mail of more than five hundred pieces
of mail matter of an identical or substantially similar nature
within any thirty-day period.
For purposes of this subdivision,
substantially similar includes communications that include
substantially the same template or language, but vary in
nonmaterial respects such as communications customized by the
recipient's name, occupation, or geographic location.
(16) (18) "Membership organization" means a group that grants
bona fide rights and privileges, such as the right to vote, to
elect officers or directors and the ability to hold office, to its
members and which uses a majority of its membership dues for purposes other than political purposes. "Membership organization"
does not include organizations that grant membership upon receiving
a contribution.
(17) (19) "Name" means the full first name, middle name or
initial, if any, and full legal last name of an individual and the
full name of any association, corporation, committee or other
organization of individuals, making the identity of any person who
makes a contribution apparent by unambiguous reference.
(18) (20) "Person" means an individual, partnership,
committee, association and any other organization or group of
individuals.
(19) (21) "Political action committee" means a committee
organized by one or more persons for the purpose of supporting or
opposing the nomination or election of one or more candidates. The
following are types of political action committees:
(A) A corporate political action committee, as that term is
defined by subdivision (7) of this section;
(B) A membership organization, as that term is defined by
subdivision
(16) (18) of this section;
(C) An unaffiliated political action committee, as that term
is defined by subdivision
(27) (31) of this section.
(20) (22) "Political committee" means any candidate committee,
political action committee or political party committee.
(21) (23) "Political party" means a political party as that
term is defined by section eight, article one of this chapter or
any committee established, financed, maintained or controlled by
the party, including any subsidiary, branch or local unit thereof
and including national or regional affiliates of the party.
(22) (24) "Political party committee" means a committee
established by a political party or political party caucus for the
purposes of engaging in the influencing of the election, nomination
or defeat of a candidate in any election.
(23) (25) "Political purposes" means supporting or opposing
the nomination, election or defeat of one or more candidates or the
passage or defeat of a ballot issue, supporting the retirement of
the debt of a candidate or political committee or the
administration or activities of an established political party or
an organization which has declared itself a political party and
determining the advisability of becoming a candidate under the
precandidacy financing provisions of this chapter.
(24) (26) "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.
(25) (27) "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.
(26) (28) "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.
(27) (29) "Unaffiliated political action committee" means a
political action committee that is not affiliated with a
corporation or a membership organization.
§3-8-4. Treasurers and financial agents; written designation
requirements.
(a) No person may act as the treasurer of any political
action committee or political party committee supporting, aiding or
opposing the nomination, election or defeat of any candidate for an
office encompassing an election district larger than a county
unless a written statement of organization, on a form to be
prescribed by the Secretary of State, is filed with the Secretary
of State at least twenty-eight days before the election at which
that person is to act as a treasurer and is received by the
Secretary of State before midnight, eastern standard time, of that
day or, if mailed, is postmarked before that hour. The form shall include the name of the political committee; the name of the
treasurer; the mailing address, telephone number and e-mail
address, if applicable, of the committee and of the treasurer if
different from the committee information; the chairman of the
committee; the affiliate organization, if any; type of committee
affiliation, as defined in subdivision (19) (21), section one-a of
this article, if any; and whether the committee will participate
in statewide, county or municipal elections. The form shall be
certified as accurate and true and signed by the chairman and the
treasurer of the committee: Provided, That a change of treasurer
or financial agent may be made at any time by filing a written
statement with the Secretary of State.
(b) No person may act as the treasurer for any candidate for
nomination or election to any statewide office, or to any office
encompassing an election district larger than a county or to any
legislative office unless a written statement designating that
person as the treasurer or financial agent is filed with the
Secretary of State at least twenty-eight days before the election
at which that person is to act as a treasurer and is received by
the Secretary of State before midnight, eastern standard time, of
that day or if mailed, is postmarked before that hour: Provided,
That a change of treasurer or financial agent may be made at any
time by filing a written statement with the Secretary of State.
(c) No person may act as treasurer of any committee or as
financial agent for any candidate to be nominated or elected by the
voters of a county or a district therein, except legislative
candidates, or as the financial agent for a candidate for the
nomination or election to any other office, unless a written
statement designating him or her as the treasurer or financial
agent is filed with the clerk of the county commission at least
twenty-eight days before the election at which he or she is to act
and is received before midnight, eastern standard time, of that day
or if mailed, is postmarked before that hour: Provided, That a
change of treasurer may be made at any time by filing a written
statement with the clerk of the county commission.
(d) Notwithstanding the provisions of subsections (a), (b) and
(c) of this section, a filing designating a treasurer for a state
or county political executive committee may be made anytime before
the committee either accepts or spends funds. Once a designation
is made by a state or county political executive committee, no
additional designations are required under this section until a
successor treasurer is designated. A state or county political
executive committee may terminate a designation made pursuant to
this section by making a written request to terminate the
designation and by stating in the request that the committee has no
funds remaining in the committee's account. This written request shall be filed with either the Secretary of State or the clerk of
the county commission as provided by subsections (a), (b) and (c)
of this section.
§3-8-5. Detailed accounts and verified financial statements
required.
(a) Every candidate, treasurer, person and association of
persons, organization of any kind, including every corporation,
directly, or indirectly, by an independent expenditure, supporting
a political committee established pursuant to paragraph (C),
subdivision (1), subsection (b), section eight of this article or
engaging in other activities permitted by this section and also
including the treasurer or equivalent officer of the association or
organization, advocating or opposing the nomination, election or
defeat of any identified candidate expressly advocating, or its
functional equivalent, the election or defeat of a clearly
identified candidate for state, district, county or municipal
office and the treasurer of every political committee shall keep
detailed accounts of every sum of money or other thing of value
received by him or her, including all loans of money or things of
value and of all expenditures and disbursements made, liabilities
incurred, by the candidate, financial agent, person, association or
organization or committee, for political purposes, or by any of the
officers or members of the committee, or any person acting under its authority or on its behalf.
(b) Every person or association of persons required to keep
detailed accounts under this section shall file with the officers
hereinafter prescribed a detailed itemized sworn statement:
(1) Of all financial transactions, whenever the total exceeds
five hundred dollars, which have taken place before the last
Saturday in March, to be filed within six days thereafter and
annually whenever the total of all financial transactions relating
to an election exceeds five hundred dollars;
(2) Of all financial transactions which have taken place
before the fifteenth day preceding each primary or other election
and subsequent to the previous statement, if any, to be filed
within four business days after the fifteenth day;
(3) Of all financial transactions which have taken place
before the thirteenth day after each primary or other election and
subsequent to the previous statement, if any, to be filed within
four business days after the thirteenth day; and
(4) Of all financial transactions, whenever the total exceeds
five hundred dollars or whenever any loans are outstanding, which
have taken place before the forty-third day preceding the general
election day, to be filed within four business days after the
forty-third day.
(c) Every person who announces as a write-in candidate for any elective office and his or her financial agent or election
organization of any kind shall comply with all of the requirements
of this section after public announcement of the person's candidacy
has been made.
(d) For purposes of this section, the term "financial
transactions" includes all contributions or loans received and all
repayments of loans or expenditures made to promote the candidacy
of any person by any candidate or any organization advocating or
opposing the nomination, election or defeat of any candidate to be
voted on.
(e) Candidates for the office of conservation district
supervisor elected pursuant to the provisions of article
twenty-one-a, chapter nineteen of this code are required to file
only the reports required by subdivisions (2) and (3), subsection
(b) of this section immediately prior to and after the primary
election: Provided, That during the election in the year two
thousand eight, the statements required by this subsection shall be
filed immediately prior to and after the general election.
§3-8-8. Corporation contributions forbidden; exceptions;
penalties; promulgation of rules; additional powers
of State Election Commission.
(a) Notwithstanding any provision of section two-b of this
article, no officer, agent or person acting on behalf of any corporation, whether incorporated under the laws of this or any
other state or of a foreign country, may pay, give, lend or
authorize to be paid, given or lent any money or other thing of
value belonging to the corporation for the purpose of expressly
advocating, or its functional equivalent, the election or defeat of
a clearly identified candidate for state, district, county or
municipal office, to any candidate, financial agent, political
committee or other person. for the payment of any primary or other
election expenses whatever No person may solicit or receive any
payment, contribution or other thing from any corporation or from
any officer, agent or other person acting on behalf of the
corporation.
(b)(1) The provisions of this section do not prohibit a
corporation from:
(A) Directly communicating with its stockholders and executive
or administrative personnel and their families on any subject:
Provided, That the communication is not by newspapers of general
circulation, radio, television or billboard advertising likely to
reach the general public.
(B) Conducting nonpartisan registration and get-out-the-vote
campaigns aimed at its stockholders and executive or administrative
personnel and their families; and
(C) Soliciting, through any officer, agent or person acting on behalf of the corporation, contributions to a separate segregated
fund to be used for political purposes. Any separate segregated
fund is considered a political action committee for the purpose of
this article and is subject to all reporting requirements
applicable to political action committees.
(2) It is unlawful for:
(A) A separate segregated fund to make a primary or other
election contribution or expenditure by using money or anything of
value secured: (i) By physical force, job discrimination or
financial reprisal; (ii) by the threat of force, job discrimination
or financial reprisal; (iii) as a condition of employment; or (iv)
in any commercial transaction;
(B) Any person soliciting a stockholder or executive or
administrative personnel and members of their families for a
contribution to a separate segregated fund to fail to inform the
person solicited of the political purposes of the separate
segregated fund at the time of the solicitation;
(C) Any person soliciting any other person for a contribution
to a separate segregated fund to fail to inform the person
solicited at the time of the solicitation of his or her right to
refuse to contribute without any reprisal;
(D) A corporation or a separate segregated fund established by
a corporation: (i) To solicit contributions to the fund from any person other than the corporation's stockholders and their families
and its executive or administrative personnel and their families;
or (ii) to contribute any corporate funds;
(E) A corporation or a separate segregated fund established by
a corporation to receive contributions to the fund from any person
other than the corporation's stockholders and their immediate
families and its executive or administrative personnel and their
immediate families;
(F) A corporation to engage in job discrimination or to
discriminate in job promotion or transfer because of an employee's
failure to make a contribution to a separate segregated fund;
(G) A separate segregated fund to make any contribution,
directly or indirectly, in excess of one thousand dollars in
connection with or on behalf of any campaign for nomination or
election to any elective office in the state or any of its
subdivisions, or in connection with or on behalf of any committee
or other organization or person engaged in furthering, advancing,
supporting or aiding the nomination or election of any candidate
for any such office;
(H) A corporation to pay, give or lend or to authorize
payment, giving or lending of any moneys or other things of value
belonging to the corporation to a separate segregated fund for any
purpose. This provision does not prohibit a separate segregated fund from using the property, real or personal, facilities and
equipment of a corporation solely to establish, administer and
solicit contributions to the fund, subject to the rules of the
State Election Commission as provided in subsection (d) of this
section: Provided, That any such corporation shall also permit any
group of its employees represented by a bona fide political action
committee to use the real property of the corporation solely to
establish, administer and solicit contributions to the fund of the
political action committee, subject to the rules of the State
Election Commission promulgated in accordance with said subsection.
No corporation may use its property, real or personal, facilities,
equipment, materials or services for the purpose of 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
expressly advocating, or its functional equivalent, the election or
defeat of a clearly identified candidate.
(3) For the purposes of this section, the term "executive or
administrative personnel" means individuals employed by a
corporation who are paid on a salary rather than hourly basis and
who have policy-making, managerial, professional or supervisory
responsibilities.
(c) Any person or corporation violating any provision of this
section is guilty of a misdemeanor and, on conviction, shall be fined not more than 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.
ARTICLE 9. OFFENSES AND PENALTIES
§3-9-14. Unlawful acts by corporations; penalties.
Except as provided in section eight, article eight of this
chapter, any corporation which shall, by its officers, agents or
otherwise, offer, give or use, or cause to be offered, given or used, or place or cause to be placed, in the possession, under the
control or at the disposal of another, to be offered, given or
used, directly or indirectly, money or other thing of value, for
the purpose of influencing any voter or voters to vote for a
particular candidate, or in any particular manner, or upon any
particular side of any question to be decided at any such election,
or to influence the result of any such election expressly
advocating the election or defeat of a clearly identified
candidate, it shall be guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than five thousand nor more than
twenty thousand dollars for every such offense, at the discretion
of the jury.
(b) As used in this section, the following terms have the
following definitions:
(1) "Clearly identified" means that:
(A) The name of the candidate involved appears;
(B) A photograph or drawing of the candidate appears; or
(C) The identity of the candidate is apparent by unambiguous
reference.
(2) "Expressly advocating" means any communication that
(A) Uses phrases such as "vote for the Governor," "re-elect
your Senator," "support the Democratic nominee for Supreme Court,"
"cast your ballot for the Republican challenger for House of Delegates," "Smith for House," "Bob Smith in '04," "vote Pro-Life"
or "vote Pro-Choice" accompanied by a listing of clearly identified
candidates described as Pro-Life or Pro-Choice, "vote against Old
Hickory," "defeat" accompanied by a picture of one or more
candidates, "reject the incumbent," or communications of campaign
slogans or individual words, which in context can have no other
reasonable meaning than to urge the election or defeat of one or
more clearly identified candidates, such as posters, bumper
stickers, advertisements, etc. which say "Smith's the One," "Jones
'06," "Baker"; or
(B) When taken as a whole and with limited reference to
external events, such as the proximity to the election, could only
be interpreted by a reasonable person as containing advocacy of the
election or defeat of one or more clearly identified candidates
because
(i) The electoral portion of the communication is
unmistakable, unambiguous, and suggestive of only one meaning; and
(ii) Reasonable minds could not differ as to whether it
encourages actions to elect or defeat one or more clearly
identified candidates or encourages some other kind of action.
NOTE: The purpose of this bill is to provide the rationale for the regulation of nonbroadcast media; to provide requirements for
direct advocacy of the election or defeat of an identifiable
candidate; and to clarify provisions relating to corporate election
communications.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.