COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 245
(By Senators Chafin, Hunter and Oliverio)
________
[Originating in the Committee on the Judiciary;
reported March 25, 2005.]
________
A BILL to repeal §3-8-5c of the Code of West Virginia, 1931, as
amended; to amend said code by adding thereto two new
sections, designated §3-8-1a and §3-8-2b; 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 the 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; prohibiting corporations from paying for producing
or airing electioneering communications; increasing penalty
for violations of prohibitions on corporate contributions to
candidates or for electioneering communications; and
prohibiting political organizations and political action
committees expressly advocating nomination, election or defeat
of candidate or engaging in electioneering communications from
accepting corporate contributions in excess of one thousand dollars during primary or general election campaign periods.
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be repealed; that said code be amended by adding thereto two new
sections, designated §3-8-1a and §3-8-2b; 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 an issue that is before the voters for
a binding decision.
(2) "Candidate" means an individual who:
(A) has filed a pre-candidacy statement, pursuant to section
five-e of this article; or
(B) has qualified to have his or her name listed on the ballot
of any election; or
(C) has declared his or her intention to seek nomination or
election for any state, regional, county, municipal or district
office which is to be filled at an election through a petition or
write-in procedure.
(3) "Clearly identified" means that the candidate's name,
nickname, photograph or drawing 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".
(4) "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 or not 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.
(5) "Direct costs of producing or airing electioneering
communications" means the following:
(A) Costs charged by a vendor, such as studio rental time,
staff salaries, costs of video or audio recording media and talent;
or
(B) The cost of airtime on broadcast, cable or satellite radio
and television stations, studio time, material costs and the
charges for a broker to purchase the airtime.
(6) "Disclosure date" means either of the following:
(A) The first date during any calendar year when an
electioneering communication is aired after total expenditures for
the direct costs of producing or airing electioneering
communications exceed ten thousand dollars.
(B) Any other date during that calendar year by which total
expenditures for the direct costs of producing or airing
electioneering communications since the previous disclosure date
exceed ten thousand dollars.
(7) "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.
(8) (A) "Electioneering communication" means any paid
broadcast, cable or satellite communication, communication
published in any periodical or newspaper, or communication sent by
mass mailing, that has all the following characteristics:
(i) Refers to a clearly identified candidate for a statewide
office or the Legislature.
(ii) Is made within one of the following time periods:
(a) Sixty days before a general or special election at which
the office sought by the candidate is to be filled; or
(b) Thirty days before a primary election at which the
nomination for office sought by the candidate is to be determined;
(iii) Is targeted to the relevant electorate; and
(iv) Advocates the nomination, election or defeat of the
candidate.
(B) "Electioneering communication" does not include any
communication:
(i) That appears in a news story, commentary or editorial
distributed through the facilities of any broadcast, cable or
satellite television or radio station or published in any newspaper
or periodical not owned or controlled by a political party,
political committee or candidate;
(ii) That constitutes an expenditure or independent
expenditure that is required to be reported to the State Election
Commission or the Secretary of State under any provision of this
article, other than section two-b, or the rules of the State
Election Commission promulgated pursuant to such provision;
(iii) That constitutes a candidate debate or forum conducted
pursuant to rules adopted by the State Election Commission or that
solely promotes that debate or forum and is made by or on behalf of
the person sponsoring the debate or forum;
(iv) That is paid for by any organization operating under
section 501(c)(3) of the Internal Revenue Code of 1986;
(v) That is made while the Legislature is in session which, incidental to advocacy for or against 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; or
(vi) That is a statement or depiction by a membership
organization, in existence prior to the date on which an individual
named or depicted became a candidate, made in a newsletter or other
communication distributed only to bona fide members of that
organization.
(9) "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.
(10) "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.
(11) "General election campaign period" means the period
beginning the day after the primary election and ending on the day
of the general election in that election year.
(12) "Independent expenditure" means an expenditure made by a person other than a candidate or his or her committee in support or
opposition to the nomination or election of one or more clearly
identified candidates and without consultation or coordination with
the candidate or an agent of the candidate whose nomination or
election the expenditure supports or whose opponent's nomination or
election the expenditure opposes. Supporting or opposing the
election of clearly identified candidates includes supporting or
opposing the candidates of a clearly identified political party. A
contribution is not an independent expenditure.
(13) "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.
(14) "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.
(15) "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.
(16) "Person" means an individual, partnership, committee,
association, corporation and any other organization or group of
individuals.
(17) "Political action committee" means a committee organized
by one or more persons for the purpose of advocating or opposing
the nomination or election of one or more candidates.
(18) "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.
(19) "Political purposes" means advocating or opposing the
nomination, election or defeat of one or more candidates,
supporting the retirement of the debt of a candidate or activities
of an established political party or an organization which has
declared itself a political party or supporting the administration
or activities of a political committee.
(20) "Primary election campaign period" means the period
beginning on the first day of the primary election filing period
and ending on the day of the subsequent primary election.
(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.
§3-8-2. Accounts for receipts and expenditures in elections;
requirements for reporting independent expenditures.
(a) Except
for: (1) Candidates for party committeemen and
committeewomen;
in primary and other elections and
(2) federal
committees required to file under the provisions 2 U. S. C. §434,
all candidates for nomination or election and all persons
or
organizations of any kind advocating or opposing
a the nomination,
election or defeat of any candidate shall keep 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,
which is made after the
eleventh day but more than twelve hours before the day of any
election shall
be reported 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 24-hour period.
(c) For purposes of this section, "independent expenditure"
means an expenditure made by a person other than a candidate or
committee for a communication which expressly advocates the
election or defeat of a clearly identified candidate but which is
made independently of a candidate's campaign and which has not been
made with the cooperation or consent of, or in consultation with,
or at the request or suggestion of, any candidate or any of his or
her agents or authorized committees. An expenditure which does not
meet the criteria for independence established in this subsection
is considered a contribution
(d) (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.
§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 producing or airing
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 expenditure is not made by an individual, the
principal place of business of the partnership, committee,
association, corporation, organization or group which made the
expenditure;
(3) The amount of each expenditure of more than one thousand
dollars 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 identified or to
be identified therein;
(5) The names and addresses of all individuals who contributed
a total of more than one thousand dollars between the first day of
the preceding calendar year and the disclosure date to a segregated bank account established to pay for electioneering communications
pursuant to paragraph (J), subdivision (2), subsection (b), section
eight of this article; and
(6) The names and address of any other 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 subdivisions (5) and (6), 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) The name and address of the contributor and, if the
contributor is a political action committee, the name the political
action committee registered with the State Election Commission;
(3) If the contributor is an individual, the name and address
of the individual's current employer, if any, or, if the individual
is self-employed, the individual's occupation and 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 producing or airing 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 producing or airing electioneering
communications shall, at the time the contribution is made, provide
the name of the his or her current employer, if any, or, if the
individual is self-employed, his or her occupation and the name of
the 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 campaign
committee; and
(2) Clearly identifies the person making the expenditure for
the electioneering communication.
(e) Any coordinated electioneering communication is an in-kind
contribution, subject to the applicable contribution limits
prescribed in sections eight and twelve of this article, to the
candidate by the person paying the direct costs of producing or
airing the communication.
(f) Within five business days after receiving a disclosure of
electioneering communications statement pursuant to this section,
the State Election Commission shall make information in the
statement available to the public through the Internet.
(g) For the purposes of this section, a person is considered
to have made a expenditure if the person has entered into a
contract to make the expenditure.
§3-8-4. Treasurers and financial agents; written designation
requirements
.
(a) No person
shall 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 be filled by the voters of
the entire state, or candidates for nomination or election for to
any office encompassing an election district larger than a county
or
candidates for nomination for to any legislative office or
for
any person
or organization advocating 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
him or her 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
he or she that person is to act
as a financial agent or treasurer and
must be is received
by the
Secretary of State before midnight, Eastern Standard Time, of that
day or if mailed,
shall be 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
shall 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
treasurer or 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
must be is received before midnight, Eastern Standard
Time, of that day or if mailed,
shall be 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
or financial
agent for a state or county political executive committee may be
made anytime before the committee either accepts or spends funds
on
behalf of the committee. 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
or
financial agent 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
made filed with either the Secretary of State or the clerk
of the county commission as provided by subsections (a) and (b) of
this section.
(d) As used in this article:
The term "person" means an individual, partnership, committee,
association, corporation, and any other organization or group of
persons; and
The term "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 or
principle at any election, or any proposition submitted to a vote
at a public election.
§3-8-5a. Information required in financial statement.
(a) Each financial statement required by the provisions of
this article shall contain only the following information:
(1) The
first name,
middle initial, if any, and last name
residence and mailing address and telephone number of each
candidate, financial agent, treasurer or person and the
full 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
first name
middle initial, if any, and the last name
in the case of an individual, and the full name of each firm,
association or committee of any person making a contribution and
the amount of
such the contribution.
of such individual, firm,
association or committee, and, if the aggregate of the sum or sums
contributed by any one such individual, firm, association or
committee exceeds If the total contributions of any one person
exceed two hundred fifty dollars,
there shall also be reported the
residence and mailing address
of the contributor and,
in the case
of if the contributor is an individual
, the 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
this provision is
subject to section five-d of this article. The
report statement on
which contributions
are required
to be reported by this subdivision
shall may not distinguish between contributions made by individuals
and contributions made by
partnerships, firms, associations
or
committees,
corporations, organizations or groups.
(4) The total amount of contributions received during the
period covered by the financial statement.
(5) The
first name,
middle initial, if any, and the last name
residence and mailing address of any individual or the
full 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
first name,
middle initial, if any, and the last name
residence and mailing address of any individual or the
full name
and mailing address of each
partnership, firm, association,
or
committee,
corporation, 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
first name,
middle initial, if any, and the last name
residence and mailing address of any individual, or the
full name
and mailing address of each
partnership, firm, association,
or
committee,
corporation, 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
or organization advocating or
opposing the nomination, election or defeat of any candidate
or the
passage or defeat of any issue, thing or item to be voted upon 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
following 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
, firm, association or committee may make any
contribution except from
their his or her own funds, unless such
person
firm, association or committee discloses in writing to the
person required to report under this section the
first name
middle
initial, if any, and the last name in the case of an individual or
the full name in case of a firm, association or committee,
residence,
and mailing address,
and the major business affiliation
and occupation of the person
firm, association or committee which
furnished the funds to
such 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
firm, association or committee 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 issue or thing to be voted upon unless the identity of the
donor and the amount of the contribution is known and reported.
(j) When any
candidate, organization, committee or person
receives
any 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
such 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) For purposes of this section:
(1) "Political purposes" means advocating or opposing the
nomination, election or defeat of one or more candidates,
supporting the retirement of the debt of a candidate or activities
of an established political party or an organization which has
declared itself a political party, supporting the administration or
activities of a political committee or advocating or opposing the
passage of a ballot issue.
(2) "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. This term shall not include
organizations that grant membership upon receiving a contribution.
(3) "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.
(m) (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
the county jail for not
more than one year, or both, in the discretion of the court. Forty
days after any
such 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
such 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
such 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
provided 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
such primary or other election, the county clerk shall give notice
to the Secretary of State of any failure to file
such 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
rule 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
such
person may enter upon the duties of his 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 and regulations; 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,
shall 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 or political committee or other person, for the
payment of any primary or other election expenses whatever. No
person
shall 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
such
separate segregated fund shall be deemed to be a political
committee for the purpose of this article and subject to all
reporting requirements thereof.
(2) It shall be unlawful:
(A) For
such 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
such the separate segregated fund at the time
of such solicitation;
(C) For any person soliciting any other person for a
contribution to
such a
separate segregated fund to fail to inform
such the other person at the time of
such the solicitation of his
or her right to refuse to
so contribute without any reprisal;
(D) For a corporation or a separate segregated fund
established by a corporation to solicit contributions to
such 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
such a 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
such a separate segregated fund;
(G) For
such a
separate segregated fund
directly or indirectly
to make any contribution,
directly or indirectly, in excess of
the
value 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 or advocating the nomination or election of
any candidate for any such office;
and
(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
such the corporation to
such a separate segregated fund for any
purpose. This provision shall not be deemed to prohibit
such 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 and regulations 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
such the corporation solely to establish,
administer and solicit contributions to the fund of
such the
political action committee, subject to the rules
and regulations of
the State
elections Election Commission as provided in subsection
(d) of this section. No
such property, real or personal,
facilities, equipment, materials or services of a corporation
shall
may be
utilized used 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 election, or to influence the result of any
such election.
(I)
Public For public utility companies
and or railroad
companies
may not to form funds or political action committees in
support of political candidates or parties,
and may not or to use
corporate property, real or personal, facilities, equipment,
materials or services of said utility to establish, administer or
solicit contributions to such fund or political action committee.
(J) For a corporation to make any expenditure for the costs of
producing or airing any electioneering communication.
(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
five ten thousand dollars. No corporation
shall may reimburse any person the amount of any
such fine imposed
pursuant to this section.
(d)
The 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
promulgate
propose rules
and regulations 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
,
which rules and regulations consistent, insofar as practicable,
shall be the same as with the rules and regulations promulgated by
the Federal Election Commission to carry out
those similar or
identical provisions of 2 U. S. C. §441b
which are similar or
identical to those provisions contained in this section in order
that the provisions of this section and the regulations promulgated
thereunder and the similar provisions of 2 USC § 441b and the
regulations promulgated thereunder may be uniformly administered
and applied to corporations subject to the cited section of the
Federal Election Campaign Act Amendments of 1976 and to this
section. The State Election Commission shall promulgate such rules
and regulations not later than sixty days after the effective date
of this subsection and in doing so shall be governed by the
provisions of article three, chapter twenty-nine-a of this code.
(e) In addition to
it's the powers and duties
as set forth in
article
one-A one-a of this chapter, the State Election Commission
shall have has the following powers and duties:
1. (1) To investigate, upon complaint or on its own
initiative, any alleged violations or irregularities of this
article.
2. (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. (3) To involve the aid of any circuit court in the
execution of its subpoena power.
4. (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) It shall be the duty of the The Attorney General
to shall,
when requested, provide
such legal and investigative assistance to
the State Election Commission
as it may request and require.
(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
shall disclose discloses the fact of any
complaint, investigation or report or any part thereof, or any
proceedings thereon,
shall be is guilty of a misdemeanor and, upon
conviction
thereof, shall be fined not less than one thousand
dollars, nor more than five thousand dollars, and shall be
imprisoned in
the county 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
expressly advocating 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 or national elective office,
or in excess
of the value of one thousand dollars, 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
committee or other organization
or person engaged in furthering, advancing or advocating the
nomination or election of any candidate for any of the offices.
(g) A political organization (as defined in section 527(e)(1)
of the Internal Revenue Code of 1986) or political action committee
that engages in activities either expressly advocating the election
or defeat of a clearly identified candidate for a statewide office
or the Legislature or in electioneering communications may not
accept contributions totaling more than one thousand dollars from
any person for the primary election campaign period or
contributions totaling more than one thousand dollars for the
general election campaign period.
(g) (h) (1) Notwithstanding the provisions of subsection (f)
of this section to the contrary,
the aggregate contributions made
to a state party executive committee or state party legislative
caucus committee are to be permitted only pursuant to the
limitations imposed by the provisions of this subsection.
(2) No 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.
(h) (i) The limitations on contributions contained in this
section do not apply to transfers between and among a state
political party executive committee or a state
political 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
political party
executive committee or state
political 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
political party committees.
(i) (j) No person may solicit any contribution from any
nonelective salaried employee of the state government or of any of
its subdivisions or 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.
(j) (k) 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.
(k) (l) 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.
(l) (m) 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.
(n) The limitations on contributions established by this
section do not apply to contributions made for the purpose of
advocating a position on a ballot issue, including a constitutional
amendment.
________
(
NOTE: The purpose of this bill is require the disclosure of
electioneering communications; prohibit corporate expenditures for
electioneering communications; and limit contributions to political
action committees and political organizations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§3-8-1a and §3-8-2b are new, therefore, strike-throughs and
underscoring have been omitted.)