Fourth Circuit to hear case over key parts of W.Va. election ad laws

Jessica M. Karmasek Jul. 17, 2012, 8:30am




RICHMOND, Va. (Legal Newsline) - A decision striking down key provisions of West Virginia election laws that attempt to regulate political ads by special interest groups will be heard by a federal appeals court in October.

U.S. District Judge Thomas Johnston's memorandum opinion, filed in July 2011, followed up on a preliminary ruling he issued shortly before the 2008 general election.

Another judge had issued a preliminary injunction against an earlier version of the state's election ad rules in April 2008.


The state's rules were challenged by West Virginians for Life and an out-of-state group, the Center for Individual Freedom. CFIF says its mission "is to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution."

CFIF sought to invalidate a number of provisions of West Virginia's campaign finance laws as unconstitutionally vague and/or overbroad.

It hoped to overturn laws that require groups that spend a certain amount of money on election ads to disclose their financial sources.

Specifically, it challenged the state's prohibition on corporate spending and reporting and disclosure requirements for expenses incurred for advocating or opposing the nomination, election or defeat of any candidate for independent expenditures "in support of or opposition to the nomination or election" of a candidate and for "electioneering communications."

Critics of the laws say forcing groups to disclose their financial backers violates the right to free speech because those backers will be subject to revenge by the candidates they opposed.

In 2008, CFIF ran ads targeting current West Virginia Attorney General Darrell McGraw.

The ads criticized McGraw's controversial 2004 settlement with Purdue Pharma over allegations that its prescription painkiller OxyContin was creating addicts and harming the state's Medicaid program.

McGraw threatened legal action against the group for the spots.

But proponents argue that out-of-state special interest groups shouldn't be allowed to spend whatever they want to influence the outcome of a West Virginia election without disclosing who they are and who they represent.

In April 2008, U.S. District Judge David Faber granted CFIF's request for a preliminary injunction against the disclosure laws.

In a separate action, WVFL alleged that its speech had been chilled by the state's campaign finance laws because it feared prosecution if it proceeded with its planned ads.

In 2008, the pro-life group wanted to run an ad depicting then-state Supreme Court candidate Margaret Workman as the author of a decision that requires taxpayers to pay for abortions for women on Medicaid.

The group wanted to run the ad, but refused to disclose its donors.

WVFL filed a motion for preliminary injunction seeking relief from several of the amended provisions, such as West Virginia's ban on corporate express advocacy; reporting requirements for express advocacy; definition of political committee, political action committee and unaffiliated PAC; definition of electioneering communication; and reporting requirements for electioneering communications.

Specifically, the group alleged that those provisions are vague, overbroad and unconstitutional.

The two lawsuits were eventually consolidated and reassigned to Johnston.


Johnston, in his 92-page ruling last year, dissolved his preliminary injunction order entered October 2008.

Specifically, he denied WVFL's motion for summary judgment as to the political action committee definitions.

The reach of state code, he wrote, "is limited to committees organized 'for the purpose of supporting or opposing the election or nomination of one or more candidates.'"

The language, he said, is equivalent to "the sole purpose of supporting or opposing a candidate" and is narrower than "the major purpose" test approved by the U.S. Supreme Court.

The judge granted motions for summary judgment on the issue of the "expressly advocating" definition.

"Subsection (B) of the 'expressly advocating' definition, W. Va. Code 3-8-1a(12), is not constitutionally overbroad, as plaintiffs suggest," Johnston wrote.

After examining other relevant case law, the judge concluded that the plaintiffs cannot demonstrate that subsection (C) is constitutionally overbroad either.

However, relying on U.S. Supreme Court rulings, Johnston found that subsection (C) is unconstitutionally vague for employing the "appeal to vote" test as a freestanding test. He severed the subsection from the remainder of the definition.

The judge admitted his holding was "reached with some hesitation."

Courts of appeals, he explained in a footnote, have expressed "fractured" and somewhat obscure opinions in the context of election-related speech freedoms.

"The ultimate conclusion that West Virginia goes too far in imposing a freestanding 'appeal to vote' test was also informed by practical considerations, inquiring into the demands placed on political speakers in West Virginia and how those demands square with constitutional command," Johnston wrote.

"It should be apparent from the length of time elapsed between the court's hearing on the summary judgment motions and the issuance of this opinion that the court underwent significant analytical struggle and did not reach the present decision lightly."

In his ruling, Johnston said the state Legislature's failure to justify the inclusion of non-targeted print media sources renders the definition of "electioneering communication" unconstitutionally overbroad.

Pursuant to state code, he severed the definition's reference to communications appearing in newspapers, magazines and other periodicals, and the motions for summary judgment were granted in part.

Johnston also determined that the "grassroots lobbying" exemption to the "electioneering communication" definition is neither vague nor insufficiently tailored to withstand constitutional scrutiny. The "voter guide" exemption contained in state code contains two clauses that impermissibly depend on "intent-and-effect" tests, he said.

The phrases "intended as nonpartisan public education" and "appearance of" are therefore severed from the exemption, he concluded.

The judge said CFIF lacks standing to challenge the "bona fide news account" exemption in state code.

Also, the "501(c)(3) organization" exemption is sufficiently tailored to meet West Virginia's interest in regulating election-related speech, and CFIF lacks standing to challenge the "operating under" language, he said.

In sum, Johnston denied CFIF's renewed motion for summary judgment as to the grassroots lobbying, bona fide news account and 501(c)(3) organization exemptions, but granted the motion as to the voter guide exemption.

As to the reporting requirements, CFIF's renewed motion for summary judgment was granted in part, "such that the names and other information of corporate contributors must only be disclosed pursuant to that subsection if the individuals contributed in response to a solicitation or earmarked the funds for use in electioneering communications."

As to the plaintiffs' other challenges to the reporting requirements, the motions for summary judgment were denied.

None of the remaining provisions are unconstitutionally vague or overbroad, Johnston said.


The defendants in the case, including West Virginia Secretary of State Natalie Tennant, filed a notice of appeal with the U.S. District Court for the Southern District of West Virginia on Sept. 1, 2011.

"Notice is hereby given that all defendants in these consolidated actions hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Amended Judgment Order entered herein on Aug. 3, 2011, together with the partial summary judgment granted on July 18, 2011 and its associated Memorandum Opinion and Summary Judgment Order, all of which became final on Aug. 3, 2011," the notice stated.

Soon after, the case was transferred to the Fourth Circuit.

According to the court's docket, the case has been tentatively scheduled for oral argument during the Oct. 23-26 session.

Any motion that would affect the scheduling of argument for that session, including motions to continue, submit on the briefs or voluntarily dismiss, must be filed by July 23, according to a one-page notice filed by the court Friday.

The Brennan Center for Justice at New York University's School of Law is among those that have submitted amicus briefs to the Fourth Circuit.

In December, it joined the West Virginia Citizens for Clean Elections, League of Women Voters of West Virginia, West Virginia Citizen Action Group and the Ohio Valley Environmental Coalition in filing friend-of-the-court briefs.

The Brennan Center's brief, in particular, argues that the district court was alone among federal courts in striking down similar campaign finance disclosure schemes.

It also argues that West Virginia's disclosure law is well within the mainstream among states that have adopted similar laws; laws which have been upheld repeatedly by the federal courts.

From Legal Newsline: Reach Jessica Karmasek by email at

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