Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
       Committee Substitute for Senate Bill 348
               By Senator Nelson [Originating in the Committee on Government Organization; reported February 22, 2024]
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  A BILL to amend and reenact §3-8-1a, §3-8-2b, and §3-8-7 of the Code of West Virginia, 1931, as
         amended, all relating to regulation and control of elections; updating the definition of
         “electioneering communication”; disclosure of electioneering communication; failure to file
         statement; delinquent or incomplete filing; criminal and civil penalties.
     Be it enacted by the Legislature of West Virginia:
     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 advertisement" 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 §3-5-7 of this code or a municipal
 charter;
        (B) Has filed a declaration of candidacy under §3-5-23 of this code;
        (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, municipal, 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
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 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) "Caregiving services" means direct care, protection, and supervision of a child, or other
 person with a disability or a medical condition, for which a candidate has direct caregiving
 responsibility. For the purposes of this article, the caregiving service expense incurred shall be in
 direct connection with the candidate’s campaign activities during the current election cycle.
         (7) "Caucus campaign committee" means a West Virginia House of Delegates or Senate
 political party caucus campaign committee that receives contributions and makes expenditures to
 support or oppose one or more specific candidates or slates of candidates for nomination,
 election, or committee membership.
         (8) "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".
         (9) "Contribution" means a gift, subscription, loan, assessment, payment for services,
 dues, advance, donation, pledge, contract, agreement, forbearance, 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.
         (A) A coordinated expenditure is a contribution for the purposes of this article.
         (B) 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
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 for reporting requirements and contribution limitations.
        (10) "Coordinated expenditure" is an expenditure made in concert with, in cooperation
 with, or at the request or suggestion of a candidate or candidate’s committee and meeting the
 criteria provided in §3-8-9a of this code.
        (11) "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.
        (12)     "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, studio time, use of facilities, and the charges for a broker
 to purchase airtime.
        (13) "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 made expenditures in excess of
 the amount provided in §3-8-2b of this codespent 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 in excess of amounts provided in §3-8-2b of this
 codetotaling $5,000 or more for the direct costs of purchasing, producing, or disseminating
 electioneering communications.
        (14) "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
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 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.
        (15)(A) "Electioneering communication" means any paid communication made by
 broadcast, cable or satellite signal, mass mailing, telephone bank, billboard advertisement, or
 publication 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;, county commissioner, county clerk, circuit clerk, assessor, sheriff, or prosecuting
 attorney;
        (ii) Is publicly disseminated within:
        (I) Thirty days before a primary election in which the nomination for office sought by the
 candidate is to be determined; or
        (II) Sixty days before a general or special election in which the office sought by the
 candidate is to be filled; and
        (iii) Is targeted to the relevant electorate.
        (B) "Electioneering communication" does not include:
        (i) A news story, commentary, or editorial disseminated through the facilities of any
 broadcast, cable or satellite television, 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;
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          (ii) Activity by a candidate committee, party executive committee, a caucus campaign
  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 §3-8-5 of this code, 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, caucus
 committee, or a political action committee required to be reported pursuant to §3-8-2 of this code
 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)(vii) 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
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 focused on issues and voting history.
         (16) "Expressly advocating" means any communication that:
         (A) Uses phrases such as "vote for the Governor", "re-elect your Senator", "support the
 incumbent 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";
         (B) Communicates campaign slogans or individual words that 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", etc.; or
         (C) Is susceptible of no reasonable interpretation other than as an appeal to vote for or
 against a specific candidate.
         (17) "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.
         (18) "Financial transactions" means all contributions or loans received and all repayments
 of loans or expenditures made to promote the candidacy of any person by any candidate or any
 organization advocating or opposing the nomination, election, or defeat of any candidate to be
 voted on.
         (19) "Firewall" means a policy designed and implemented to prohibit the flow of information
 between employees or consultants providing services for the person paying for a communication
 and those employees or consultants currently or previously providing services to a candidate, or to
 a committee supporting or opposing a candidate clearly identified in the communication.
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        (20) "Foreign national" means the following:
        (A) A foreign principal, as such term is defined in 22 U.S.C. § 611(b), which includes:
        (i) A government of a foreign country;
        (ii) A foreign political party;
        (iii) A person outside of the United States, unless it is established that such person:
        (I) Is an individual and a citizen of the United States; or
        (II) That such person is not an individual and is organized under or created by the laws of
 the United States or of any state or other place subject to the jurisdiction of the United States and
 has its principal place of business within the United States; and
        (iv) A partnership, association, corporation, organization, or other combination of persons
 organized under the laws of, or having its principal place of business in, a foreign country.
        (B) An individual who is not a citizen of the United States or a national of the United States,
 as defined in 8 U.S.C. § 1101(a)(22), and who is not lawfully admitted for permanent residence, as
 defined by 8 U.S.C. § 1101(a)(20).
        (21) "Fundraising event" or "fundraiser" means an event such as a dinner, reception,
 testimonial, cocktail party, auction, or similar affair through which contributions are solicited or
 received.
        (22) "In concert or cooperation with or at the request or suggestion of" means that a
 candidate or his or her agent consulted with:
        (A) The sender regarding the content, timing, place, nature, or volume of a particular
 communication or communication to be made; or
        (B) A person making an expenditure that would otherwise offset the necessity for an
 expenditure of the candidate or candidate’s committee.
        (23) "Independent expenditure" means an expenditure by a person:
        (A) Expressly advocating the election or defeat of a clearly identified candidate, including
 supporting or opposing the candidates of a political party; and
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         (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.
         An expenditure which does not meet the criteria for an independent expenditure is
 considered a contribution.
         (24) "Local" refers to the election of candidates to a city, county, or municipal office and any
 issue to be voted on by only the residents of a particular political subdivision.
         (25) "Mass mailing" means a mailing by United States mail, facsimile, or electronic mail of
 more than 500 pieces of mail matter of an identical or substantially similar nature within any 30-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.
         (26) "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.
         (27) "Membership organization political action committee" means a labor organization or a
 trade association, cooperative, or other incorporated membership organization that: Is composed
 of members; expressly states the qualifications for membership in its articles and by-laws; makes
 its articles, by-laws, and other organizational documents available to its members; expressly
 seeks members; acknowledges acceptance of membership, such as by sending membership
 cards to new members or including them on a membership newsletter list; and is organized such
 that it operates a subsidiary entity or segregated fund within the membership organization
 primarily for the purpose of influencing any election on the ballot in the State of West Virginia.
         (28) "Name" means the full first name, mid