The Register-Herald, Beckley, West Virginia

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January 19, 2013

U.S. appeals court OKs some W.Va. election ad rules

CHARLESTON — West Virginia can require reports from independent groups for ads that advocate for or against candidates without using such terms as “re-elect” or “vote against” and mandate the disclosure of donors behind broadcast ads that run close to Election Day, a federal appeals court ruled Friday.

The unanimous decision by a three-judge panel of the 4th Circuit U.S. Court of Appeals also suggests that the state can seek reporting for election-timed ads beyond those that appear on radio or TV.

The ruling reverses several findings by U.S. District Judge Thomas Johnston in a challenge brought by the Center for Individual Freedom. The national conservative group has sued over campaign finance requirements in West Virginia and other states, alleging they violate free speech rights. The center also funds political ads, including a $1.6 million campaign targeting then-Attorney General Darrell McGraw before his November defeat.

The group did not respond to a request for comment Friday. The challenge was filed against Secretary of State Natalie Tennant as West Virginia’s elections chief. A lawyer for her office hailed the appeal’s outcome.

“I think the opinion recognizes the importance of disclosing the sources of funding when individuals and corporations seek to influence the electoral process,” the lawyer, Anthony Majestro, said Friday. “The court both upheld the majority of West Virginia’s campaign finance statutes and provided a road map for the Legislature, should it choose to broaden our disclosure laws.”

West Virginia has sought to require disclosures for ads with messages on par with “magic words” long associated with election campaigns. Johnston had ruled that the state was too vague when it tried to define the “functional equivalent” of such express advocacy. Friday’s decision disagreed, in the wake of a 4th Circuit opinion issued last year on the subject.

The state’s campaign finance laws also have focused on broadcast ads that run 30 days before a primary or 60 days before a general election, when they refer to a candidate for state-level or legislative office. Friday’s decision restores a provision limited by Johnston that calls for the names and addresses of those contributing more than $1,000 to groups that issue ads during these time periods.

West Virginia had tried to apply the election-timed disclosure to ads in newspapers, magazines and periodicals, but Johnston struck down that language. While upholding that outcome, Friday’s decision concluded that this provision failed because it did not extend to such other non-broadcast media as direct mail.

“There is no reason why the public would not have a similar interest in knowing the source of campaign-related spending when it takes the form of print communication,” the appeals court ruled. “Therefore, West Virginia can point to its interest in informing the public to justify including print media in its ‘electioneering communication’ definition.”

The ruling noted that this provision came after an earlier attempt to apply the pre-election disclosure to an array of media, which was struck down in 2008 following a challenge by the center.

The most recent set of campaign finance rules exempted grassroots lobbying from the election-timed requirements, and Friday’s decision upholds that provision. West Virginians for Life also took part in the more recent challenge but did not take part in the appeal. As a result, Friday’s ruling did not consider its legal arguments.

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