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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 402
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Passed September 13, 2005; in effect from passage.]
AN ACT
to repeal §3-8-5c of the Code of West Virginia, 1931, as
amended; to amend said code by adding thereto three new
sections, designated §3-8-1a, §3-8-2b and §3-8-14; and to
amend and reenact §3-8-2, §3-8-4, §3-8-5a, §3-8-7, §3-8-8 and
§3-8-12 of said code, all relating to regulating elections;
defining terms; requiring candidates and persons making
electioneering communications to keep and make available for
inspection records of campaign-related contributions and
spending; requiring persons who engage in electioneering
communications to file financial statements with Secretary of
State; contents of statement and filing requirements;
penalties for filing delinquent or incomplete financial
statements; granting the Secretary of State legislative and
emergency rule-making authority; clarifying that
electioneering communications made in coordination with a
candidate or political party are considered contributions to such candidate or political party; increasing penalty for
violations of prohibitions on corporate contributions to
candidates or for electioneering communications; requiring
political organizations to register with the Secretary of
State prior to soliciting or accepting contributions;
prohibiting political organizations from accepting
contributions in excess of one thousand dollars before the
primary and general elections;
making it unlawful to create
more than one political organization with the intent to avoid
or evade contribution limitations; and establishing an
internal operating date.
Be it enacted by the Legislature of West Virginia:
That §3-8-5c of the Code of West Virginia, 1931, as amended,
be repealed; that said code be amended by adding thereto three new
sections, designated §3-8-1a, §3-8-2b and §3-8-14; and that §3-8-2,
§3-8-4, §3-8-5a, §3-8-7, §3-8-8 and §3-8-12 of said code 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 candidate to explore the possibilities of seeking a
particular office and/or to support or aid his or her nomination or
election to an office in one election cycle. If a candidate
directs or influences the activities of more than one committee,
those committees shall be considered one committee of 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 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 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 acting for and by
himself or herself, or any two or more natural persons 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 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 twenty-four month
period that begins the day after a general election and ends on the
day of the subsequent general election.
§3-8-2. Accounts for receipts and expenditures in elections;
requirements for reporting independent expenditures.
(a) Except for: (1) Candidates for party committeeman and
committeewoman; and (2) federal committees required to file under
the provisions 2 U.S.C. §434, all candidates for nomination or
election and all persons supporting, aiding or opposing the
nomination, election or defeat of any candidate shall keep for a
period of six months records of receipts and expenditures which are
made for political purposes. All of the receipts and expenditures
are subject to regulation by the provisions of this article. Verified financial statements of the records and expenditures shall
be made and filed as public records by all candidates and by their
financial agents, representatives or any person acting for and on
behalf of any candidate and by the treasurers of all political
party committees.
(b) In addition to any other reporting required by the
provisions of this chapter, any person making an independent
expenditure in the amount of one thousand dollars or more for any
statewide, legislative or multicounty judicial candidate or in the
amount of five hundred dollars or more for any county office,
single-county judicial candidate, committee supporting or opposing
a candidate on the ballot in more than one county, or any municipal
candidate on a municipal election ballot, after the eleventh day
but more than twelve hours before the day of any election shall
report the expenditure, on a form prescribed by the Secretary of
State, within twenty-four hours after the expenditure is made or
debt is incurred for a communication, to the Secretary of State by
hand-delivery, facsimile or other means to assure receipt by the
Secretary of State within the twenty-four-hour period.
(c)
Any independent expenditure must include a clear and
conspicuous public notice which identifies the name of the person
who paid for the expenditure and states that the communication is
not authorized by the candidate or his or her committee.
(d) Any 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 maintain all financial records and receipts related to
such expenditure for a period of six months following the filing of
a disclosure pursuant to subsection (a) of this section and, upon
request, shall make such records and receipts available to the
Secretary of State or county clerk for the purpose of an audit as
provided in section seven of this article. Any person who
willfully fails to comply with this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than five hundred dollars, or confined in jail for not more than
one year, or both fined and confined.
§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.
§3-8-4. Treasurers and financial agents; written designation
requirements
.
(a) No person may act as the treasurer of any political
committee, or as financial agent for any candidate for nomination or election to any statewide office, to any office encompassing an
election district larger than a county or to any legislative office
or for any person 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
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 financial agent or
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.
(b) 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.
(c) Notwithstanding the provisions of subsections (a) and (b) 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) and (b) of
this section.
§3-8-5a. Information required in financial statement.
(a) Each financial statement required by the provisions of
this article, other than a disclosure of electioneering
communications pursuant to section two-b of this article, shall
contain only the following information:
(1) The name, residence and mailing address and telephone
number of each candidate, financial agent, treasurer or person and
the name, address and telephone number of each association,
organization or committee filing a financial statement.
(2) The balance of cash and any other sum of money on hand at
the beginning and the end of the period covered by the financial
statement.
(3) The name of any person making a contribution and the amount of the contribution. If the total contributions of any one
person amount to two hundred fifty dollars or more, the residence
and mailing address of the contributor and, if the contributor is
an individual, his or her major business affiliation and occupation
shall also be reported. A contribution totaling more than fifty
dollars of currency of the United States or currency of any foreign
country by any one contributor is prohibited and a violation of
section five-d of this article. The statement on which
contributions are required to be reported by this subdivision may
not distinguish between contributions made by individuals and
contributions made by partnerships, firms, associations committees,
organizations or groups.
(4) The total amount of contributions received during the
period covered by the financial statement.
(5) The name, residence and mailing address of any individual
or the name and mailing address of each lending institution making
a loan or of the spouse cosigning a loan, as appropriate, the
amount of any loan received, the date and terms of the loan,
including the interest and repayment schedule, and a copy of the
loan agreement.
(6) The name, residence and mailing address of any individual
or the name and mailing address of each partnership, firm,
association, committee, organization or group having previously
made or cosigned a loan for which payment is made or a balance is
outstanding at the end of the period, together with the amount of
repayment on the loan made during the period and the balance at the end of the period.
(7) The total outstanding balance of all loans at the end of
the period.
(8) The name, residence and mailing address of any individual,
or the name and mailing address of each partnership, firm,
association, committee, organization or group to whom each
expenditure was made or liability incurred, together with the
amount and purpose of each expenditure or liability incurred and
the date of each transaction.
(9) The total expenditure for the nomination, election or
defeat of a candidate or any person supporting, aiding or opposing
the nomination, election or defeat of any candidate in whose behalf
an expenditure was made or a contribution was given for the primary
or other election.
(10) The total amount of expenditures made during the period
covered by the financial statement.
(b) Any unexpended balance at the time of making the financial
statements herein provided for shall be properly accounted for in
that financial statement and shall appear as a beginning balance in
the next financial statement.
(c) Each financial statement required by this section shall
contain a separate section setting forth the following information
for each fund-raising event held during the period covered by the
financial statement:
(1) The type of event, date held and address and name, if any,
of the place where the event was held.
(2) All of the information required by subdivision (3),
subsection (a) of this section.
(3) The total of all moneys received at the fund-raising
event.
(4) The expenditures incident to the fund-raising event.
(5) The net receipts of the fund-raising event.
(d) When any lump sum payment is made to any advertising
agency or other disbursing person who does not file a report of
detailed accounts and verified financial statements as required in
this section, such lump sum expenditures shall be accounted for in
the same manner as provided for herein.
(e) Any contribution or expenditure made by or on behalf of a
candidate for public office, to any other candidate or committee
for a candidate for any public office in the same election shall be
accounted for in accordance with the provisions of this section.
(f) No person may make any contribution except from his, her
or its own funds, unless such person discloses in writing to the
person required to report under this section the name, residence,
mailing address, major business affiliation and occupation of the
person which furnished the funds to the contributor. All such
disclosures shall be included in the statement required by this
section.
(g) Any firm, association, committee or fund permitted by
section eight of this article to be a political committee shall
disclose on the financial statement its corporate or other
affiliation.
(h) No contribution may be made, directly or indirectly, in a
fictitious name, anonymously or by one person through an agent,
relative or other person so as to conceal the identity of the
source of the contribution or in any other manner so as to effect
concealment of the contributor's identity.
(i) No person may accept any contribution for the purpose of
influencing the nomination, election or defeat of a candidate or
for the passage or defeat of any ballot issue unless the identity
of the donor and the amount of the contribution is known and
reported.
(j) When any person receives an anonymous contribution which
cannot be returned because the donor cannot be identified, that
contribution shall be donated to the General Revenue Fund of the
State. Any anonymous contribution shall be recorded as such on the
candidate's financial statement, but may not be expended for
election expenses. At the time of filing, the financial statement
shall include a statement of distribution of anonymous
contributions, which total amount shall equal the total of all
anonymous contributions received during the period.
(k) Any membership organization which raises funds for
political purposes by payroll deduction, assessing them as part of
its membership dues or as a separate assessment, may report the
amount raised as follows:
(1) If the portion of dues or assessments designated for
political purposes equals twenty-five dollars or less per member
over the course of a calendar year, the total amount raised for political purposes through membership dues or assessments during
the period is reported by showing the amount required to be paid by
each member and the number of members.
(2) If the total payroll deduction for political purposes of
each participating member equals twenty-five dollars or less over
the course of a calendar or fiscal year, as specified by the
organization, the organization shall report the total amount
received for political purposes through payroll deductions during
the reporting period and, to the maximum extent possible, the
amount of each yearly payroll deduction contribution level and the
number of members contributing at each such specified level. The
membership organization shall maintain records of the name and
yearly payroll deduction amounts of each participating member.
(3) If any member contributes to the membership organization
through individual voluntary contributions by means other than
payroll deduction, membership dues, or assessments as provided in
this subsection, the reporting requirements of subdivision (3),
subsection (a) of this section shall apply. Funds raised for
political purposes must be segregated from the funds for other
purposes and listed in its report.
(l) Notwithstanding the provisions of section five of this
article or of the provisions of this section to the contrary, an
alternative reporting procedure may be followed by a political
party executive committee or a political action committee
representing a political party in filing financial reports for
fund-raising events if the total profit does not exceed five thousand dollars per year. A political party executive committee
or a political action committee representing a political party may
report gross receipts for the sale of food, beverages, services,
novelty items, raffle tickets or memorabilia, except that any
receipt of more than fifty dollars from an individual or
organization shall be reported as a contribution. A political
party executive committee or a political action committee
representing a political party using this alternative method of
reporting shall report: (i) The name of the committee; (ii) the
type of fund-raising activity undertaken; (iii) the location where
the activity occurred; (iv) the date of the fund raiser; (v) the
name of any individual who contributed more than fifty dollars
worth of items to be sold; (vi) the name and amount received from
any person or organization purchasing more than fifty dollars worth
of food, beverages, services, novelty items, raffle tickets or
memorabilia; (vii) the gross receipts of the fund raiser; and
(viii) the date, amount, purpose and name and address of each
person or organization from whom items with a fair market value of
more than fifty dollars were purchased for resale.
§3-8-7. Failure to file statement; delinquent or incomplete
filing; criminal and civil penalties.
(a) Any person, candidate, financial agent or treasurer of a
political party committee who fails to file a sworn, itemized
statement required by this article within the time limitations
specified in this article or who willfully files a grossly
incomplete or grossly inaccurate statement shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less
than five hundred dollars or imprisoned in jail for not more than
one year, or both, in the discretion of the court. Forty days
after any primary or other election, the Secretary of State, or
county clerk, or municipal recorder, as the case may be, shall give
notice of any failure to file a sworn statement or the filing of
any grossly incomplete or grossly inaccurate statement by any
person, candidate, financial agent or treasurer of a political
party committee and forward copies of any grossly incomplete or
grossly inaccurate statement to the prosecuting attorney of the
county where the person, candidate, financial agent, or treasurer
resides, is located or has its principal place of business.
(b) (1) Any person, candidate, financial agent or treasurer of
a political party committee who fails to file a sworn, itemized
statement as required in this article or who files a grossly
incomplete or grossly inaccurate statement may be assessed a civil
penalty by the Secretary of State of twenty-five dollars a day for
each day after the due date the statement is delinquent, grossly
incomplete or grossly inaccurate. Forty days after any primary or
other election, the county clerk shall give notice to the Secretary
of State of any failure to file a sworn statement or the filing of
any grossly incomplete or grossly inaccurate statement by any
person, candidate, financial agent or treasurer of a political
party committee and forward copies of such delinquent, incomplete
or inaccurate statements to the Secretary of State.
(2) A civil penalty assessed pursuant to the provisions of this section shall be payable to the State of West Virginia and is
collectable in any manner authorized by law for the collection of
debts.
(3) The Secretary of State may negotiate and enter into
settlement agreements for the payment of civil penalties assessed
as a result of the filing of a delinquent, grossly incomplete or
inaccurate statement.
(4) The Secretary of State and county clerk may review and
audit any sworn statement required to be filed pursuant to the
provisions of this article. The State Election Commission shall
propose legislative rules for promulgation, in accordance with the
provisions of chapter twenty-nine-a of this code, to establish
procedures for the assessment of civil penalties as provided in
this section.
(c) No candidate nominated at a primary election who has
failed to file a sworn statement, as required by the provisions of
this article, shall have his or her name placed on the official
ballot for the ensuing election, unless there has been filed by or
on behalf of such candidate, or by his or her financial agent, if
any, the financial statement relating to nominations required by
this article. It is unlawful to issue a commission or certificate
of election, or to administer the oath of office, to any person
elected to any public office who has failed to file a sworn
statement as required by the provisions of this article and no
person may enter upon the duties of his or her office until he or
she has filed such statement, nor may he or she receive any salary or emolument for any period prior to the filing of such statement.
§3-8-8. Corporation contributions forbidden; exceptions;
penalties; promulgation of rules; additional powers
of State Election Commission.
(a) No officer of any corporation, or agent or person on
behalf of such corporation, whether incorporated under the laws of
this or any other state, or 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 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 payment, contribution or other thing from any
corporation, officer or agent thereof, or other person acting on
behalf of such corporation.
(b)(1) The provisions of this section shall not be deemed to
prohibit:
(A) Direct communications, other than by newspapers of general
circulation, radio, television or billboard advertising likely to
reach the general public, by a corporation to its stockholders and
executive or administrative personnel and their families on any
subject;
(B) Nonpartisan registration and get-out-the-vote campaigns by
a corporation aimed at its stockholders and executives or
administrative personnel and their families; and
(C) The solicitation of contributions to a separate segregated
fund to be utilized 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 a political action
committee for the purpose of this article and subject to all
reporting requirements thereof.
(2) It shall be unlawful:
(A) For a separate segregated fund to make a contribution or
expenditure by utilizing money or anything of value secured by
physical force, job discrimination, financial reprisal or the
threat of force, job discrimination or financial reprisal, or as a
condition of employment, or by moneys obtained in any commercial
transaction;
(B) For any person soliciting a stockholder, executive or
administrative personnel and members of their family for a
contribution to such fund to fail to inform such person of the
political purposes of the separate segregated fund at the time of
such solicitation;
(C) For any person soliciting any other person for a
contribution to a separate segregated fund to fail to inform the
other person 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 to solicit contributions to the fund
from any person other than its stockholders and their families and
its executive or administrative personnel and their families or 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 its 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 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 authorize to be
paid, given or lent, any moneys or other things of value belonging
to the corporation to a separate segregated fund for any purpose.
This provision shall 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 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 subsection (d) of this section. No property, real or personal,
facilities, equipment, materials or services of a corporation may
be used for the purpose of influencing any voter or voters to vote
for a particular candidate or in any particular manner or 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 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.
§3-8-12. Additional acts forbidden; circulation of written matter;
newspaper advertising; solicitation of contributions;
intimidation and coercion of employees; promise of
employment or other benefits; limitations on
contributions; public contractors; penalty.
(a) No person may publish, issue or circulate, or cause to be
published, issued or circulated, any anonymous letter, circular,
placard, radio or television advertisement or other publication
supporting or aiding the election or defeat of a clearly identified
candidate.
(b) No owner, publisher, editor or employee of a newspaper or
other periodical may insert, either in its advertising or reading
columns, any matter, paid for or to be paid for, which tends to
influence the voting at any election, unless directly designating
it as a paid advertisement and stating the name of the person
authorizing its publication and the candidate in whose behalf it is
published.
(c) No person may, in any room or building occupied for the
discharge of official duties by any officer or employee of the
State or a political subdivision of the State, solicit orally or by
written communication delivered within the room or building, or in
any other manner, any contribution of money or other thing of value for any party or political purpose, from any postmaster or any
other officer or employee of the federal government, or officer or
employee of the State, or a political subdivision of the State. No
officer, agent, clerk or employee of the federal government, or of
this state, or any political subdivision of the State, who may have
charge or control of any building, office or room, occupied for any
official purpose, may knowingly permit any person to enter any
building, office or room, occupied for any official purpose for the
purpose of soliciting or receiving any political assessments from,
or delivering or giving written solicitations for, or any notice
of, any political assessments to, any officer or employee of the
State, or a political subdivision of the State.
(d) Except as provided in section eight of this article, no
person entering into any contract with the State or its
subdivisions, or any department or agency of the State, either for
rendition of personal services or furnishing any material, supplies
or equipment or selling any land or building to the State, or its
subdivisions, or any department or agency of the State, if payment
for the performance of the contract or payment for the material,
supplies, equipment, land or building is to be made, in whole or in
part, from public funds may, during the period of negotiation for
or performance under the contract or furnishing of materials,
supplies, equipment, land or buildings, directly or indirectly,
make any contribution to any political party, committee or
candidate for public office or to any person for political purposes
or use; nor may any person or firm solicit any contributions for any purpose during any period.
(e) No person may, directly or indirectly, promise any
employment, position, work, compensation or other benefit provided
for, or made possible, in whole or in part, by Act of the
Legislature, to any person as consideration, favor or reward for
any political activity for the support of or opposition to any
candidate, or any political party in any election.
(f) No person may, directly or indirectly, make any
contribution in excess of the value of one thousand dollars in
connection with any campaign for nomination or election to or on
behalf of any statewide office, in connection with any other
campaign for nomination or election to or on behalf of any other
elective office in the state or any of its subdivisions, or in
connection with or on behalf of any person engaged in furthering,
advancing, supporting or aiding the nomination or election of any
candidate for any of the offices.
(g) No political organization (as defined in Section 527(e)(1)
of the Internal Revenue Code of 1986)
may solicit or accept
contributions until it has notified the Secretary of State of its
existence and of the purposes for which it was formed. During the
two-year election cycle, a political organization (as defined in
Section 527 (e) (1) of the Internal Revenue Code of 1986) may not
accept contributions totaling more than one thousand dollars from
any one person prior to the primary election and contributions
totaling more than one thousand dollars from any one person after
the primary and before the general election.
(h) It shall be unlawful for any person to create, establish
or organize more than one political organization (as defined in
Section 527(e)(1) of the Internal Revenue Code of 1986) with the
intent to avoid or evade the contribution limitations contained in
subsection (g) of this section.
(i) Notwithstanding the provisions of subsection (f) of this
section to the contrary,no person may, directly or indirectly,
make contributions to a state party executive committee or state
party legislative caucus committee which, in the aggregate, exceed
the value of one thousand dollars in any calendar year.
(j) The limitations on contributions contained in this section
do not apply to transfers between and among a state party executive
committee or a state party's legislative caucus political committee
from national committees of the same political party: Provided,
That transfers permitted by this subsection may not exceed fifty
thousand dollars in the aggregate in any calendar year to any state
party executive committee or state party legislative caucus
political committee: Provided, however, That the moneys transferred
may only be used for voter registration and get-out-the-vote
activities of the state committees.
(k) No person may solicit any contribution, other than
contributions to a campaign for or against a county or local
government ballot issue, from any nonelective salaried employee of
the state government or of any of its subdivisions: Provided, That
in no event shall any person acting in a supervisory role solicit
a person who is a subordinate employee for any contribution. No person may coerce or intimidate any nonelective salaried employee
into making a contribution. No person may coerce or intimidate any
nonsalaried employee of the state government or any of its
subdivisions into engaging in any form of political activity. The
provisions of this subsection may not be construed to prevent any
employee from making a contribution or from engaging in political
activity voluntarily without coercion, intimidation or
solicitation.
(l) No person may solicit a contribution from any other person
without informing the other person at the time of the solicitation
of the amount of any commission, remuneration or other compensation
that the solicitor or any other person will receive or expect to
receive as a direct result of the contribution being successfully
collected. Nothing in this subsection may be construed to apply to
solicitations of contributions made by any person serving as an
unpaid volunteer.
(m) No person may place any letter, circular, flyer,
advertisement, election paraphernalia, solicitation material or
other printed or published item tending to influence voting at any
election in a roadside receptacle unless it is: (1) Approved for
placement into a roadside receptacle by the business or entity
owning the receptacle; and (2) contains a written acknowledgment of
the approval. This subdivision does not apply to any printed
material contained in a newspaper or periodical published or
distributed by the owner of the receptacle. The term "roadside
receptacle" means any container placed by a newspaper or periodical business or entity to facilitate home or personal delivery of a
designated newspaper or periodical to its customers.
(n) Any person violating any provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in a regional
or county jail for not more than one year, or, in the discretion of
the court, be subject to both fine and confinement.
(o) The provisions of subsection (k) of this section,
permitting contributions to a campaign for or against a county or
local government ballot issue shall become operable on and after
the first day of January, two thousand five.;
(p) The limitations on contributions established by subsection
(g)of this section do not apply to contributions made for the
purpose of supporting or opposing a ballot issue, including a
constitutional amendment.
§3-8-14. Effective date of certain criminal offenses.
The criminal offenses created in sections two, seven and
twelve of this article by the provisions of Enrolled Committee
Substitute for House Bill No. 402 during the fourth extraordinary
session, two thousand five, shall be effective ninety days from
passage.