Published: October 18, 2008 01:47 am         

Judge temporarily blocks state election law

Regulating third-party expenditures, broadcasts of political advertising

CHARLESTON — A federal judge has temporarily blocked a West Virginia election law that regulated third-party expenditures and broadcasts of political advertising.

This spring, a federal judge blocked the state from requiring third parties to report what they spent on non-broadcast ads. Lawmakers responded last month by modifying the law, but on Friday U.S. District Judge Thomas Johnston issued an order that temporarily blocked those changes.

In his order, Johnston called parts of the new law unconstitutionally vague.

House Minority Leader Tim Armstead said he was not surprised since opponents of the bill thought it was unconstitutional when it was approved during June’s special session.

“Certainly we had those concerns when the bill was brought before the Legislature,” said Armstead, R-Kanawha. “I think we all felt we were all for disclosure but we wanted the type of disclosure that would hold constitutional scrutiny.”

Johnston’s order blocks the state from barring corporation-funded ads that use “express advocacy” as defined as language that “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.”

The order does allow the state to bar corporation-funded ads that employ “express advocacy” through phrases such as “vote for the Governor,” “re-elect your Senator” or “support the Democratic nominee for Supreme Court.”

As with the federal ruling issued in April, Johnston’s order rolls back the disclosure requirement for election-time ads to spots that air on radio and broadcast, cable and satellite TV.

Lawyers for the Center for Individual Freedom and West Virginians for Life challenged the law. Each filed separate lawsuits, since consolidated, against Secretary of State Betty Ireland, as the chief elections office, and a representative county prosecutor, to prevent enforcement.

Both groups want to weigh in on the state Supreme Court race, while the center has also targeted state Attorney General Darrell McGraw in prior ads. But each said they would not if they had to disclose their contributors.

“The wise judge has confirmed CFIF’s position that the two central elements of the effort to suppress free speech during this election both are unconstitutional,” said Thomas W. Kirby, who represents the center. “That will not surprise anyone who regards free speech as a basic right and an essential part of how free people govern themselves.”

State Supreme Court candidates, Democrats Margaret Workman and Menis Ketchum, intervened in the case. The center had sought to advertise in their race, while the anti-abortion group sought to target Workman with its ads.

“My clients are happy that the court rejected the attempts to completely overturn West Virginia’s campaign finance statues,” their lawyer Anthony Majestro said. “However, we’re disappointed that the court refused to enforce the provisions of the statue requiring disclosure of the sources of funding with third-party communications made in non-broadcast media.”

House Judiciary Chairwoman Carrie Webster, D-Kanawha, said the ruling was “a blow to the notion that our elections should be clean and free of fraud and deceit.

“We’re going to continue seeing more and more contributions come in from out of state groups and we’re never going to know who they are and how much they’re spending,” Webster said.

     

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