W.Va. AG asked for opinion on campaign finances

Jessica M. Karmasek Feb. 9, 2011, 10:52am


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Secretary of State Natalie Tennant has sent a letter to state Attorney General Darrell McGraw asking for his help in interpreting state code, specifically those laws on campaign finances.

Tennant, in her three-page letter sent Thursday, wrote, "The unique situation of our special election for Governor has raised issues of code interpretation for which the Secretary of State can find no West Virginia legal precedent."

Current code, she said, does not appear to have contemplated concurrent campaigning for multiple offices, including two different elections for governor. Various sections of code may be in conflict with other sections and with current circumstances.

The Secretary of State points to five specific questions relating to: the receipt of contributions before the formation of a committee, pre-candidacy exploratory committees, legal uses of campaign funds, legal uses of excess campaign funds, and various Securities and Exchange Commission rules.

First, she asked, may a candidate create a pre-candidacy committee that does not identify the office sought, or the election year in which some office will be sought, that the candidate is considering?

In the past, she explained in the letter, candidates have been allowed to organize a committee for an "unspecified" office and for an "unspecified" election year. The only restrictions are that the contributions and expenditures may not have occurred more than four years -- or one term, whichever is less -- prior to the election as provided by state code.

Second, Tennant asked the attorney general, may candidates have multiple pre-candidacy committees active at the same time?

Some candidates, she explained, have committees open for exploring a run for office for the 2012 election and this year's special election.

Also, if multiple pre-candidacy committees may be active at the same time, do certain sections of state code limit an individual's contribution to $1,000 in the aggregate for all pre-candidacy committees for the same person?

Fourth, Tennant asked, if multiple committes may be active at the same time, may the candidate transfer funds from one committee to another?

According to her interpretation, three state code sections may prohibit the latter.

One section, she said, makes it "unlawful" for any such committee to collect, receive or disburse money for any purpose before it is registered with the Secretary of State's Office.

This section may be read to prohibit the transfer of contributions from one committee to another when the second committee had not been formed at the time of receipt of the original contribution, Tennant explained.

On the other hand, she pointed out, it may be argued that the date of the transfer is the date of the receipt of the contribution by the new committee; not the date of the original contribution to the first committee.

Finally, Tennant asked McGraw, may a candidate with a committee for the 2012 election use those funds for his or her 2011 campaign once he or she has filed a certificate of announcement?

Pointing to a section of state code, she said pre-candidacy committee monies become part of the regular campaign once a person files such a certificate.

It is uncertain when McGraw's office will respond to Tennant's letter.

Meanwhile, Acting Gov. Earl Ray Tomblin, joined by legislative leaders, signed House Bill 2853 into law Monday afternoon. The bill sets this year's special primary and gubernatorial election dates.

The primary -- instead of a nominating convention -- will be held May 14. The gubernatorial election will be held Oct. 4.

Last week, the House of Delegates approved the Senate's so-called "compromise bill" calling for the two dates.

The Senate approved the bill, which kept intact the House's date for a primary. The bill, however, kept the Senate's date for the gubernatorial election.

Earlier in the week, both chambers suspended the constitutional rule requiring that a bill be read on three separate days to speed up voting.

Tomblin previously issued a proclamation on Jan. 21 calling for a special gubernatorial election on Oct. 4 and June 20 for a primary.

His proclamation was in line with a ruling issued by the state Supreme Court on Jan. 18 that West Virginians will elect a new governor this year.

Tomblin, who took over for now-U.S. Sen. Joe Manchin, who resigned with more than a year left in his term, had argued that an election wasn't needed until 2012. Now, according to the Supreme Court ruling, a governor must be elected by Nov. 15.

As of Wednesday, five candidates had filed precandidate forms to run for governor. They include, according to the Secretary of State's website:

- Former Secretary of State Betty Ireland, a Republican from Kanawha County;

- Jesse Johnson, a member of the Mountain Party from Kanawha County;

- State Delegate Patrick Lane, a Republican from Kanawha County;

- Putnam County Prosecutor Mark Sorsaia, a Republican; and

- Tennant, a Democrat from Kanawha County.

Also, as of Wednesday, four candidates had filed certificates of announcement and paid the corresponding filing fee and are considered official candidates for governor. They include:

- Clark Barnes, a Republican from Randolph County;

- Arne Moltis, a Democrat from Kanawha County;

- House Speaker Rick Thompson, a Democrat from Wayne County; and

- Tomblin, a Democrat from Logan County.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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