Summary of the Case: The West Virginia disclosure law borrows from the Bipartisan Campaign Reform Act of 2002 (BCRA) the federal definition of “electioneering communication”—advertisements that mention the name of a candidate in the weeks immediately prior to an election—in order to combat the practice of “sham issue ads,” which avoid disclosure requirements by neglecting to expressly advocate election or defeat of a candidate but are nevertheless intended to influence the outcome of an election. West Virginia, like nearly every other state that adopted a definition of “electioneering communication” expanded the definition beyond the federal definition to apply to print media in addition to broadcast media, in recognition of the important role that print media plays in state elections.
West Virginia adopted its disclosure law in the aftermath of a 2004 West Virginia Supreme Court election, during which Massey Energy CEO Don Blankenship bankrolled a group called “And for the Sake of the Kids” with some $3 million dollars in secretive money order to influence the outcome of the election. The state sought to enact tougher disclosure provisions in order to shed light on the sources of funding for political activity by outside groups like Blankenship’s group in state elections. It did so in order to provide the electorate with necessary information to critically evaluate election-related communications and to prevent corruption or the appearance of corruption in its political system.
The district court’s decision in CFIF can be found here.
Brennan Center’s Amicus Brief in CFIF v. Tennant (Fourth Circuit): On July 18, 2011, a federal court narrowed aspects of West Virginia’s statutes that require disclosure of money spent to influence state elections. In doing so, the court found West Virginia’s definition of “electioneering communication” to be overbroad to the extent that it required disclosure of print media. The court also narrowed a provision that permitted West Virginia voters to learn about the source of funding behind electioneering communication, instead imposing a policy modeled on Federal Election Commission rules that have proven ineffective.
West Virginia subsequently appealed the district court’s decision to the Fourth U.S. Circuit Court of Appeals. On December 29, 2011, the Brennan Center joined West Virginia Citizens for Clean Elections, League of Women Voters of West Virginia, West Virginia Citizen Action, Group, and the Ohio Valley Environmental Coalition (with pro bono partners Dewey & LeBeouf) in filing an amicus brief in the Fourth Circuit.
The Brennan Center’s brief argues that the district court was alone among federal courts in striking down similar campaign finance disclosure schemes. Furthermore, the brief 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. West Virginia is one of nineteen states that have enacted “electioneering communications” definitions that go beyond the definition in the Bipartisan Campaign Reform Act of 2002 (BCRA) (out of 21 that have enacted similar disclosure requirements for electioneering communications). In addition, the $1,000 threshold established by West Virginia for disclosure of contributions spent on electioneering communications is the same or higher than was adopted by most other states with similar laws. As the brief explained:
The lower court’s faulty conclusion is the product of legal error. While the district court paid lip service to the proper “exacting scrutiny” standard of review, it in fact applied a stricter standard, failing to afford the proper deference to the reasoned and well-informed judgment of West Virginia’s legislators. The court insisted that a voluminous record of supporting evidence must be included in the formal legislative history to justify these disclosure laws, even though they are far from novel or unsupported. Ultimately, the court engaged in the type of line drawing properly reserved for democratically elected lawmakers.
Amici urged the Court to grant the State of West Virginia’s appeal in its entirety.