Stay the Course West Virginia sues Secretary of State over code - Business, Government Legal News from throughout WV

Stay the Course West Virginia sues Secretary of State over election code

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In a recently filed federal lawsuit, a West Virginia independent expenditure political action committee says a Secretary of State policy that prohibits independent expenditures by corporations limits free speech rights.

Stay the Course West Virginia and its chairman David Bailey along with Pineville Lumber Inc. and Kanawha County voter Thomas Stephen Bailey filed the suit May 23 against Secretary of State Natalie Tennant and Mercer County Prosecutor Scott Ash.

Bailey created Stay the Course West Virginia to make independent expenditures supporting the re-election of certain incumbents before the state's November general election.

However, the state's election code prohibits a person from contributing more than $1,000 to candidates running for any public office, the suit states.

"Any person violating any provision of West Virginia Code… is guilty of a misdemeanor and is subject to a fine of not more than $1,000 and/or confinement in jail for not more than one year," the suit notes.

The suit seeks to prohibit enforcement of the statutes and also seeks class certification of all West Virginia prosecuting attorneys, who would be represented by Ash.

Before 2010, state code provided no corporation could contribute "anything of value to a corporation" to "any candidate financial agent or political committee" and prohibited the solicitation of corporate contributions. The previous law also established a penalty for violation of a fine up to $10,000.

In 2010, lawmakers rewrote code and "does not expressly prohibit" corporate contributions to a political action committee for election expenses.

"Its prohibition of corporate contributions is limited to contributions to ‘any candidate or candidate's campaign,'" the suit notes.

However current code did prohibit solicitation of corporate contributions to "any candidate or candidate's committee." The law kept the penalty of a misdemeanor charge and fine of up to $10,000.

"The current legislative rules prohibit corporations from making ‘a contribution or expenditure … whatsoever in connection with' any primary or general election campaign with the exception of certain specific instances, none of which is applicable here," the suit states.

The rules also prohibit political action committees from accepting corporate contributions.

"These rules are inconsistent with the current 3-8-8 (a) and (b) which prohibit only corporate contributions to any candidate or candidate's campaign," the suit states.

The current Secretary of State policy says "no corporate political activity is permitted except for the establishment of a separate segregated fund," such as a political action committee.

Yet, Stay the Course argues state code "implies" corporations can make independent expenditures instead of political contributions.

 "Specifically, (Section 3-8-2-b) explicitly includes corporations in its definition of the ‘persons' who must report making independent expenditures in excess of $1,000 during a calendar year."

The suit states the Secretary of State's policy violates decisions by the nation's highest court declaring corporations cannot be prohibited from making "unlimited independent expenditures that expressly advocate the election or defeat of a political candidate." Stay the Course also argues the election code policy violates rights to free speech.

Pineville Lumber, the suit states, wants to make an independent expenditure of $5,000 to Stay the Course. Bailey also wants to solicit contributions of more than $1,000 from natural persons and corporations.

Thomas Stephen Bailey also wants to contribute more than $1,000 to Stay the Course.

"Plaintiffs have standing to bring this civil action because the issues raised regarding the First Amendment are significant and plaintiffs face imminent and impending injury in the very near future … if they exercise their right to free speech by making or accepting contributions to the committee," the suit states.

A response has not yet been filed by the Secretary of State's office.

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