COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 538
(By Senators Kessler, Minard, Foster, Edgell,
D. Facemire and Oliverio)
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[Originating in the Committee on the Judiciary;
reported February 25, 2010.]
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A BILL to amend and reenact §3-8-1a and §3-8-5a of the Code of West
Virginia, 1931, as amended, all relating generally to
elections; defining "charitable organization"; and making
technical corrections throughout.
Be it enacted by the Legislature of West Virginia:
That §3-8-1a and §3-8-5a of the Code of West Virginia, 1931,
as amended, 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) "Billboard" means a commercially available outdoor
advertisement, sign or similar display regularly available for lease
or rental to advertise a person, place or product.
(3) "Broadcast, cable or satellite communication" means a
communication that is publicly distributed by a television station,
radio station, cable television system or satellite system.
(4) "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.
(5) "Candidate's committee" means a political committee
established with the approval of or in cooperation with a candidate
or a prospective candidate to explore the possibilities of seeking
a particular office or to support or aid his or her nomination or
election to an office in an election cycle. If a candidate directs
or influences the activities of more than one active committee in
a current campaign, those committees shall be considered one
committee for the purpose of contribution limits.
(6) "Charitable organization" means a person who is or holds
itself out to be a benevolent, educational, philanthropic, humane, patriotic, religious or eleemosynary organization, or any person who
solicits or obtains contributions solicited from the public for
charitable purposes, or any person who in any manner employs any
appeal for contributions which may be reasonably interpreted to
suggest that any part of such contributions will be used for
charitable purposes. A chapter, branch, area, office or similar
affiliate or any person soliciting contributions within the state
for a charitable organization which has its principal place of
business outside the state is a charitable organization for the
purposes of this article.
(6) (7) "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."
(7) (8) "Contribution" means a gift subscription, assessment,
payment for services, dues, advance, donation, pledge, contract,
agreement, forbearance or promise of money or other tangible thing
of value, whether conditional or legally enforceable, or a transfer
of money or other tangible thing of value to a person, made for the
purpose of influencing the nomination, election or defeat of a
candidate. An offer or tender of a contribution is not a
contribution if expressly and unconditionally rejected or returned. A contribution does not include volunteer personal services provided
without compensation:
Provided, That a nonmonetary contribution is
to be considered at fair market value for reporting requirements and
contribution limitations.
(8) (9) "Corporate political action committee" means a
political action committee that is a separate segregated fund of a
corporation that may only accept contributions from its restricted
group as outlined by the rules of the State Election Commission.
(9) (10) "Direct costs of purchasing, producing or
disseminating electioneering communications" means:
(A) Costs charged by a vendor, including, but not limited to,
studio rental time, compensation of staff and employees, costs of
video or audio recording media and talent, material and printing
costs and postage; or
(B) The cost of airtime on broadcast, cable or satellite radio
and television stations, the costs of disseminating printed
materials, establishing a telephone bank, studio time, use of
facilities and the charges for a broker to purchase airtime.
(10) (11) "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 $5,000 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 $5,000 or more for the direct costs of purchasing,
producing or disseminating electioneering communications.
(11) (12) "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.
(12) (13) (A) "Electioneering communication" means any paid
communication made by broadcast, cable or satellite signal, mass
mailing, telephone bank, billboard advertising, or published in any
newspaper, magazine or other periodical that:
(i) Refers to a clearly identified candidate for Governor,
Secretary of State, Attorney General, Treasurer, Auditor,
Commissioner of Agriculture, Supreme Court of Appeals or the
Legislature;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election at which the
nomination for office sought by the candidate is to be determined;
or
(II) Sixty days before a general or special election at which
the office sought by the candidate is to be filled; and
(iii) Is targeted to the relevant electorate:
Provided, That
for purposes of the general election of 2008 the amendments to this
article shall be effective October 1, 2008.
(B) "Electioneering communication" does not include:
(i) A news story, commentary or editorial disseminated through
the facilities of any broadcast, cable or satellite television or
radio station, newspaper, magazine or other periodical publication
not owned or controlled by a political party, political committee
or candidate:
Provided, That a news story disseminated through a
medium owned or controlled by a political party, political committee
or candidate is nevertheless exempt if the news is:
(I) A bona fide news account communicated in a publication of
general circulation or through a licensed broadcasting facility;
and
(II) Is part of a general pattern of campaign-related news that
gives reasonably equal coverage to all opposing candidates in the
circulation, viewing or listening area;
(ii) Activity by a candidate committee, party executive
committee or caucus committee, or a political action committee that
is required to be reported to the State Election Commission or the
Secretary of State as an expenditure pursuant to section five of
this article or the rules of the State Election Commission or the
Secretary of State promulgated pursuant to such provision:
Provided, That independent expenditures by a party executive
committee or caucus committee or a political action committee
required to be reported pursuant to subsection (b), section two of
this article are not exempt from the reporting requirements of this
section;
(iii) A candidate debate or forum conducted pursuant to rules adopted by the State Election Commission or the Secretary of State
or a communication promoting that debate or forum made by or on
behalf of its sponsor;
(iv) A communication paid for by any organization operating
under Section 501(c)(3) of the Internal Revenue Code of 1986;
(v) A communication made while the Legislature is in session
which, incidental to promoting or opposing a specific piece of
legislation pending before the Legislature, urges the audience to
communicate with a member or members of the Legislature concerning
that piece of legislation;
(vi) A statement or depiction by a membership organization, in
existence prior to the date on which the individual named or
depicted became a candidate, made in a newsletter or other
communication distributed only to bona fide members of that
organization;
(vii) A communication made solely for the purpose of attracting
public attention to a product or service offered for sale by a
candidate or by a business owned or operated by a candidate which
does not mention an election, the office sought by the candidate or
his or her status as a candidate; or
(viii) A communication, such as a voter's guide, which refers
to all of the candidates for one or more offices, which contains no
appearance of endorsement for or opposition to the nomination or
election of any candidate and which is intended as nonpartisan
public education focused on issues and voting history.
(14) "Expressly advocating" means any communication that:
(A) Uses phrases such as "vote for the Governor," "reelect
your Senator," "support the Democratic nominee for Supreme Court,"
"cast your ballot for the Republican challenger for House of
Delegates," "Smith for House," "Bob Smith in '04," "vote Pro-Life"
or "vote Pro-Choice" accompanied by a listing of clearly identified
candidates described as Pro-Life or Pro-Choice, "vote against Old
Hickory," "defeat" accompanied by a picture of one or more
candidates, "reject the incumbent," or communications of campaign
slogans or individual words, that in context can have no other
reasonable meaning than to urge the election or defeat of one or
more clearly identified candidates, such as posters, bumper
stickers, advertisements, etc. which say "Smith's the One," "Jones
'06," "Baker"; or
(B) When considered in its entirety, the communication can only
be interpreted by a reasonable person as advocating the election or
defeat of one or more clearly identified candidates because:
(i) The electoral portion of the communication is unmistakable,
unambiguous, and suggestive of only one meaning; and
(ii) Reasonable minds could not differ as to whether it
encourages actions to elect or defeat one or more clearly identified
candidates.
(14) (15) "Financial agent" means any individual acting for and
by himself or herself, or any two or more individuals acting
together or cooperating in a financial way to aid or take part in
the nomination or election of any candidate for public office, or
to aid or promote the success or defeat of any political party at any election.
(15) (16) "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.
(16) (17) "Independent expenditure" means an expenditure by a
person:
(A) Expressly advocating the election or defeat of a clearly
identified candidate; and
(B) That is not made in concert or cooperation with or at the
request or suggestion of such candidate, his or her agents, the
candidate's authorized political committee or a political party
committee or its agents.
Supporting or opposing the election of a clearly identified
candidate includes supporting or opposing the candidates of a
political party. An expenditure which does not meet the criteria
for an independent expenditure is considered a contribution.
(17) (18) "Mass mailing" means a mailing by United States mail,
facsimile or electronic mail of more than five hundred pieces of
mail matter of an identical or substantially similar nature within
any thirty-day period. For purposes of this subdivision,
substantially similar includes communications that contain
substantially the same template or language, but vary in nonmaterial
respects such as communications customized by the recipient's name,
occupation, or geographic location.
(18) (19) "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.
(19) (20) "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.
(20) (21) "Person" means an individual, partnership, committee,
association and any other organization or group of individuals.
(21) (22) "Political action committee" means a committee
organized by one or more persons for the purpose of supporting or
opposing the nomination or election of one or more candidates. The
following are types of political action committees:
(A) A corporate political action committee, as that term is
defined by subdivision (8) of this section;
(B) A membership organization, as that term is defined by
subdivision (18) of this section;
(C) An unaffiliated political action committee, as that term
is defined by subdivision (29) of this section.
(22) (23) "Political committee" means any candidate committee,
political action committee or political party committee.
(23)(24) "Political party" means a political party as that term is defined by section eight, article one of this chapter or any
committee established, financed, maintained or controlled by the
party, including any subsidiary, branch or local unit thereof and
including national or regional affiliates of the party.
(24) (25) "Political party committee" means a committee
established by a political party or political party caucus for the
purposes of engaging in the influencing of the election, nomination
or defeat of a candidate in any election.
(25)(26) "Political purposes" means supporting or opposing the
nomination, election or defeat of one or more candidates or the
passage or defeat of a ballot issue, supporting the retirement of
the debt of a candidate or political committee or the administration
or activities of an established political party or an organization
which has declared itself a political party and determining the
advisability of becoming a candidate under the precandidacy
financing provisions of this chapter.
(26) (27) "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.
(27) (28) "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.
(28) (29) "Two-year election cycle" means the 24-month period
that begins the day after a general election and ends on the day of
the subsequent general election.
(29) (30) "Unaffiliated political action committee" means a
political action committee that is not affiliated with a corporation
or a membership organization.
§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
in any one election cycle amount to more than $250, 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 $50 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 person to
whom each expenditure was made or liability incurred, including
expenditures made on behalf of a candidate or political committee
that otherwise are not made directly by the candidate or political committee, 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 $25 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 $25 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
committee in filing financial reports for fund-raising events if the
total profit does not exceed $5,000 per year. A political party
committee may report gross receipts for the sale of food, beverages,
services, novelty items, raffle tickets or memorabilia, except that
any receipt of more than $50 from an individual or organization
shall be reported as a contribution. A political party committee
using this alternative method of reporting shall report:
(i) (1) The name of the committee;
(ii) (2) The type of fund-raising activity undertaken;
(iii) (3) The location where the activity occurred;
(iv) (4) The date of the fundraiser;
(v) (5) The name of any individual who contributed more than $50 worth of items to be sold;
(vi) (6) The name and amount received from any person or
organization purchasing more than $50 worth of food, beverages,
services, novelty items, raffle tickets or memorabilia;
(vii) (7) The gross receipts of the fundraiser; and
(viii) (8) The date, amount, purpose and name and address of
each person or organization from whom items with a fair market value
of more than $50 were purchased for resale.
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(NOTE: The purpose of this bill is to define a charitable
organization in regards to an inaugural committee's disbursement of
excess contributions and to correct a mislabeling of subdivisions
of the code regarding information required in a financial statement.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)