THOMAS E. JOHNSTON, District Judge.
Pending before the Court are Plaintiff Center for Individual Freedom, Inc.'s (CFIF) Renewed Motion for Summary Judgment [Docket 210] and Plaintiffs Zane Lawhorn and West Virginians for Life, Inc.'s (WVFL) Second Motion for Summary Judgment [Docket 209]. On February 11, 2011, the parties argued both motions at a hearing before the Court. (Docket 225.) The parties agree that no issues of fact remain outstanding and that the Court can properly dispose of the case on summary judgment.
1. PAC and Related Definitions. The Court finds no reason to depart from its preliminary injunction order. The reach of W. Va.Code § 3-8-1a(19) is limited to committees organized "for the purpose of supporting or opposing the election or nomination of one or more candidates." Id. (emphasis added). This language is equivalent to "the sole purpose of supporting or opposing a candidate," and it is narrower than "the major purpose" test approved by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). WVFL's Second Motion for Summary Judgement [Docket 209] is
2. "Expressly Advocating" Definition. Subsection (B) of the "expressly advocating" definition, W. Va.Code § 3-8-1a(12), is not constitutionally overbroad, as Plaintiffs suggest. Likewise, after examining Citizens United and other relevant case law, the Court concludes that Plaintiffs cannot demonstrate that subsection (C) is constitutionally overbroad either. However, relying on the opinions in WRTL II authored by Chief Justice Roberts and Justice Scalia, the Court finds that subsection (C) is unconstitutionally vague for employing the "appeal to vote" test as a freestanding test. In WRTL II, two justices upheld the "appeal to vote" test only within the "bright-line" context of electioneering communications, and three justices indicated their disapproval of the test's constitutionality in any context. The motions for summary judgment [Dockets 209, 210] are therefore
3. Corporate Expenditure Ban. In the wake of Citizens United, the West Virginia Legislature repealed the ban on certain corporate speech. There being no live issue for the Court to resolve, Plaintiffs' motions for summary judgment [Dockets 209, 210] are
4. "Electioneering Communication" Definition. The West Virginia Legislature's failure to justify the inclusion of non-targeted print media sources renders the definition of "electioneering communication" unconstitutionally overbroad. Pursuant to W. Va.Code § 2-2-10(cc), the definition's reference to communications appearing in newspapers, magazines, and other periodicals is
5. "Electioneering Communication" Exemptions. The "grassroots lobbying" exemption to the "electioneering communication" definition, W. Va.Code § 3-8-1a(11)(B)(v) is neither vague nor insufficiently tailored to withstand constitutional scrutiny. The "voter guide" exemption contained in W. Va.Code § 3-8-1a(11)(B)(viii) contains two clauses that impermissibly depend on "intent-and-effect" tests of the kind criticized in WRTL II. The phrases "intended as nonpartisan public education" and "appearance of" are therefore
6. Reporting Requirements. CFIF's Renewed Motion for Summary Judgment [210] is
7. Preliminary Injunction Dissolution. The Court's preliminary injunction order, entered on October 17, 2008, is
This action is the consolidation of two similar actions, Center for Individual Freedom, Inc. v. Tennant et al., Case No. 1:08-cv-00190, and West Virginians for Life, Inc. v. Tennant et al., Case No. 1:08-cv-01133. CFIF is a non-partisan, non-profit organization organized under § 501(c) of the Internal Revenue Code. (Docket 1 ¶¶ 3, 3(b) in Case No. 1:08-cv-00190.)
CFIF filed its initial action on March 21, 2008, seeking to invalidate a number of provisions of West Virginia's campaign finance laws as unconstitutionally vague and/or overbroad.
In anticipation of the May 13, 2008, primary election, CFIF filed a motion for a preliminary injunction holding those laws unconstitutional facially and as applied to a number of communications CFIF intended to publish in the days leading up to the primary. By order, the West Virginia Association for Justice (WVAJ), West Virginia American Federation of Labor and Congress of Industrial Organizations (WV AFL-CIO), West Virginia Council of Churches (WVCOC), West Virginia Education Association (WVEA), West Virginia Citizens Action Group (WVCAG), Ohio Valley Environmental Coalition (OVEC), (Docket 13), West Virginia Employment Lawyers Association (WVELA) and West Virginia State Democratic Executive Committee (WVSDEC), (Docket 45), were permitted to participate as amici curiae. Also by order, Robert M. Bastress, Jr., Margaret L. Workman, Menis E. Ketchum,
Judge Faber heard argument on the motion for a preliminary injunction on April 9, 2008. On April 22, 2008, 2008 WL 1837324, Judge Faber entered an order granting in part and denying in part CFIF's motion. More specifically, Judge Faber enjoined defendants Betty Ireland and Timothy D. Boggess
On June 28, 2008, in a second extraordinary session, the West Virginia Legislature passed H.B. No. 219, amending West Virginia Code sections 3-8-1, 3-8-1a, 3-8-4, 3-8-5, and 3-9-14.
WVFL, like CFIF, is a non-partisan, non-profit organization organized under § 501(c) of the Internal Revenue Code. (Docket 1 ¶ 9 in Case No. 1:08-cv-01133.) Zane Lawhorn, who is also a named Plaintiff in this case, is a resident of Princeton, West Virginia, and wishes to receive WVFL's communications. (Id. ¶¶ 12-13.) WVFL's stated purpose "is to present information upon which individuals and the general public may make informed decisions about such topics as fetal development, abortion and its alternatives, and euthanasia." (Id. ¶ 25). WVFL alleges that its speech has been chilled by West Virginia's campaign finance laws because it reasonably fears prosecution by Defendants if it proceeds with its planned communications. (Id. ¶ 44.)
On September 30, 2008, WVFL filed a verified complaint and motion for preliminary injunction seeking relief from several of the amended provisions, such as West Virginia's ban on corporate express advocacy, W. Va.Code §§ 3-8-1a(13), 3-8-8, W. Va.Code R. § 146-1-3, reporting requirements for express advocacy, W. Va.Code §§ 3-8-2b, 3-8-5a, 3-8-5b, definition of political committee, political action committee (PAC), and unaffiliated PAC, §§ 3-8-1a(21), (22), (29), definition of electioneering communication, §§ 3-8-1a(12), (26), and reporting requirements for electioneering communications, §§ 3-8-1a(20), 3-8-2(a), 3-8-2(d), 3-8-2b(a)-(g), 3-8-5, 3-8-5b. Specifically, WVFL alleged that those provisions are vague and overbroad and accordingly unconstitutional both facially and as applied.
Shortly after WVFL filed its complaint, CFIF filed an emergency motion for a preliminary injunction on October 6, 2008, challenging some of those same provisions, namely the ban on corporate express advocacy and the definition of electioneering communications, §§ 3-8-1a(13), (12), (26), 3-8-8, and the reporting requirements resulting therefrom. In support of its emergency motion, CFIF stated that Attorney General McGraw engaged in a series of threats and retaliatory acts in response to CFIF's earlier ads. (Docket 90-2 ¶ 2.)
On October 7, 2008, CFIF v. Ireland, No. 1:08-cv-00190, was reassigned to the undersigned District Judge and consolidated with WVFL v. Ireland, No. 1:08-cv-01133.
First, the Court applied a limiting principle in interpreting West Virginia's ban on corporate express advocacy, holding that the West Virginia legislature impliedly excepted corporations, such as WVFL, that meet the criteria set forth by the Supreme Court in Federal Election Commission v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238, 263, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986). (Docket 125 at 14-15.) This holding approximated the Supreme Court's holding in Federal Election Commission v. McConnell, 540 U.S. 93, 209-11, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003), and quashed WVFL's argument that the corporate advocacy ban was overbroad as applied to it.
Second, the Court agreed with CFIF and WVFL that West Virginia's definition of express advocacy, as it then stood, was vague and overbroad for a multitude of reasons. Relying heavily on Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL II), 551 U.S. 449, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007), and North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir.2008), the Court found West Virginia's express advocacy definition overbroad for failing to limit its application to electioneering communications as defined by the Bipartisan Campaign Reform Act of 2002 (BCRA). (Docket 125 at 19-20.) Furthermore, because West Virginia's definition of express advocacy relied on contextual factors and employed the interpretation of a "reasonable person" to determine the boundaries of express advocacy, the Court held W. Va.Code § 3-8-1a(13)(B) unconstitutionally vague on its face. (Docket 125 at 20-23.)
Third, the Court upheld West Virginia's definitions of "political action committee," "political committee," and "unaffiliated political action committee" as sufficiently tailored. In reaching this conclusion, the Court noted that West Virginia's definition was narrower than the "major purpose" test that was expounded in Buckley v. Valeo. (Docket 125 at 24-29.) West Virginia's definition captures only those committees with the sole purpose of supporting or opposing a candidate's nomination, rather than those with the major purpose of supporting or opposing nomination, as Buckley condoned. Additionally, and contrary to the arguments of CFIF and WVFL, the phrase "supporting or opposing" was held sufficiently definite to pass constitutional muster. (Docket 125 at 29-31.)
Fourth, the Court struck down West Virginia's definition of "electioneering communication" as overbroad because it encompassed more varied media than those contained in BCRA's definition (which the
On February 4, 2009, WVFL and Zane Lawhorn filed their Motion for Summary Judgment. (Docket 152.) CFIF filed a separate Motion for Summary Judgment on the same day. (Docket 154.) In August 2009, the Fourth Circuit issued a preliminary injunction opinion in Real Truth About Obama, Inc. v. Federal Election Commission (RTAO), 575 F.3d 342 (4th Cir.2009), which potentially impacts the resolution of this case. In consideration of RTAO, on September 16, 2009, 2009 WL 3017705, the Court granted WVFL's motion to stay this case pending resolution of a petition for rehearing en banc before the Fourth Circuit and a petition for writ of certiorari before the Supreme Court in RTAO. (Docket 184). On May 6, 2010, WVFL advised the Court that the Supreme Court granted the certiorari petition in RTAO, vacated the Fourth Circuit panel decision, and remanded the case to the Fourth Circuit in light of the recent Citizens United decision. Consequently, on May 26, 2010, the Court dissolved the stay. Only CFIF and WVFL/Zane Lawhorn remain as plaintiffs.
In the 2010 regular session, the West Virginia legislature again revisited certain provisions of the election chapter. In particular, W. Va.Code § 3-9-14 was repealed, and §§ 3-8-1 (purposes), 3-8-1a (definitions), 3-8-2 (requirements for reporting independent expenditures), 3-8-8 (corporate contribution ban), and 3-8-12 (anonymous advertising ban) were amended, effective June 11, 2010. See 2010 W. Va. Acts ch. 76 (H.B. 4647). Both WVFL and CFIF maintain that their challenges remain live issues because the 2010 amendments did little to remedy the constitutional infirmities they perceive in West Virginia's election laws. On September 14, 2010, WVFL and Zane Lawhorn filed their Second Motion for Summary Judgment, arguing many of the same points from the preliminary injunction stage. (Docket 209.) On the same day, CFIF filed its Renewed Motion for Summary Judgment. (Docket 210.) The Court held a lengthy hearing on both summary judgment motions on February 11, 2011, where it heard argument from counsel for Plaintiffs and the West Virginia defendants.
Summary judgment is proper where the pleadings, depositions, and affidavits in the record show that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Conversely, summary judgment is inappropriate if there exist factual issues that reasonably may be resolved in favor of either
At the hearing on the summary judgment motions pending before the Court, all parties agreed that there are no outstanding factual issues to be resolved. Instead, the remaining questions are purely questions of law for the Court's interpretation and analysis. Accordingly, this case is ripe for disposition on these motions.
WVFL and CFIF challenge certain of West Virginia's election laws as impermissibly vague. It is a fundamental tenet of constitutional law that a statute or regulation "is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). A vagueness challenge arises under the Due Process Clause of either the Fifth or Fourteenth Amendment. See Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2718, 177 L.Ed.2d 355 (2010). Laws are impermissibly vague if they fail to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited." Grayned, 408 U.S. at 108, 92 S.Ct. 2294. A vagueness challenge can also be asserted on the basis that a statute or regulation permits "arbitrary and discriminatory enforcement" by "impermissibly delegat[ing] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis." Id. When assessing a statute or regulation that "interferes with the right of free speech or of association, a more stringent vagueness test should apply." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). This "more stringent vagueness test" requires more than fair notice, but "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). Additionally, "even to the extent a heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of [either] the Fifth [or Fourteenth] Amendment for lack of notice." Holder, 130 S.Ct. at 2719. To be certain, vagueness turns on considerations of clarity, not government reach.
A statute may be attacked as unconstitutionally vague on its face only in limited circumstances. Courts are not "roving commissions assigned to pass judgment on the validity of the Nation's laws." Broadrick v. Oklahoma, 413 U.S. 601, 610-11, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). A party who cannot complain that its own conduct was ensnared by an impermissibly vague statute generally is prohibited from arguing that the statute may injure others who are not before the court. See L.A. Police Dep't v. United Reporting Publ'g Corp., 528 U.S. 32, 38, 120 S.Ct. 483, 145 L.Ed.2d 451 (1999) ("[A] person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court."); Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness."). The Supreme Court has carved out an exception to this general rule when First
In addition to vagueness, the litigants in this case challenge West Virginia's election laws as overbroad. When a statute or regulation is challenged as overbroad, a court's task "is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186. "If it does not, then the overbreadth challenge must fail." Id. In addressing an overbreadth challenge, the court is to first construe the challenged law to determine its proper scope, then ask whether the law burdens a substantial amount of protected activity. Williams, 553 U.S. at 293, 297, 128 S.Ct. 1830. The potential vagueness of a law impacts a court's overbreadth analysis because uncertain boundaries (vagueness) can chill constitutionally protected speech without actually infringing on any constitutional rights. See Williams, 553 U.S. at 304, 128 S.Ct. 1830 ("[O]rdinarily a plaintiff ... cannot complain of the vagueness of the law as applied to the conduct of others, [but] we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech."); see also Hoffman Estates, 455 U.S. at 494 n. 6, 102 S.Ct. 1186 (noting that "the vagueness of a law affects overbreadth analysis").
A threshold issue for courts weighing fundamental rights against government interests is the level of means-end scrutiny to apply in specific circumstances. The distinction relevant to this case centers on whether each challenged law amounts to (1) a prohibition or restriction on speech or certain speakers or (2) a disclaimer, disclosure, or reporting requirement, which may burden the ability to speak but "imposes no ceiling on campaign-related activities" and "do[es] not prevent anyone from speaking." Citizens United v. Fed. Election Comm'n, 558 U.S. ___, ___, 130 S.Ct. 876, 914, 175 L.Ed.2d 753 (2010) (citations omitted).
Political "[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people." Citizens United, 130 S.Ct. at 898 (citing Buckley, 424 U.S. at 14-15, 96 S.Ct. 612 ("In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential.")). For this reason, when a law burdens core political speech, courts apply strict scrutiny, under which "the Government must prove that [the law] furthers a compelling interest related to the process of governing." Fed. Election Comm'n v. Wisc. Right to Life, Inc. (WRTL II), 551 U.S. 449, 464, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007); see also McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (when law burdens core political speech, a court will "uphold the restriction only if it is narrowly tailored to serve an overriding state interest"). For instance, the Supreme Court has applied strict scrutiny to strike down content-based restrictions on speech and restrictions based on the identity of the speaker. See, e.g., United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (striking down content-based restriction); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 784, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (striking down restriction distinguishing among corporate and non-corporate speakers).
On the other hand, because disclosure and disclaimer requirements are a less restrictive alternative to more comprehensive regulations of speech, challenges to such requirements are reviewed under a less rigorous test that has been termed "exacting scrutiny." See, e.g., Citizens United, 130 S.Ct. at 914 ("The Court has subjected [disclosure] requirements to `exacting scrutiny'"); Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); accord Doe v. Reed, ___ U.S. ___, ___, 130 S.Ct. 2811, 2814, 177 L.Ed.2d 493 (2010). This standard "requires a `substantial relation' between the disclosure requirement and a `sufficiently important' governmental interest." Citizens United, 130 S.Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66, 96 S.Ct. 612). To withstand exacting scrutiny, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Davis v. Fed. Election Comm'n, 554 U.S. 724, 744, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citing Buckley, 424 U.S. at 68, 96 S.Ct. 612). The Citizens United Court cited at least one government interest that is significant in the analysis: "`[P]rovid[ing] the electorate with information' about the sources of election-related spending." 130 S.Ct. at 914 (quoting Buckley, 424 U.S. at 64, 96 S.Ct. 612).
WVFL challenges several subsections of W. Va.Code § 3-8-1a, which provides the definitions for "political committee," "political action committee" (or "PAC"), and "unaffiliated political action committee." W. Va.Code §§ 3-8-1a(19), (20), (26). WVFL requests "[a] declaratory judgment that ... [these definitions] ... are unconstitutional as applied to [WVFL's] communications and facially, are void, and are set aside." (Docket 128 ¶ 238.) The West Virginia legislature did not amend these definitions in 2010, except to renumber them. At the summary judgment hearing, West Virginia fully endorsed the Court's preliminary injunction holding on this issue, and the Court can find no reason to depart from that analysis. Accordingly, the Court adopts in full the discussion and analysis of these arguments set forth in the preliminary injunction order, as set forth below:
(Docket 125 at 23-32.)
As to the Court's overbreadth holding, at the summary judgment hearing, WVFL argued that the Court's interpretation of the PAC definition, as set forth above, cannot be correct because it would permit foolish results. In particular, WVFL stated that, under the Court's construction of W. Va.Code § 3-8-1a(19), an organization could spend 99% of its treasury to "support or oppose the nomination or election of one or more candidates" (and 1% on, say, charitable activity) but not fall within the definition of "PAC" because supporting or opposing a candidate's nomination or election is not the organization's sole purpose. In lieu of the Court's interpretation, WVFL proposes that the Court refuse to "read[] `only' ... into West Virginia law" and hold § 3-8-1a(19) unconstitutionally overbroad for capturing organizations that have simply a purpose of supporting or opposing a candidate's nomination or election. (Docket 211 at 32-34.) Contrary to WVFL's suggestion, the Court is not reading anything into the PAC definition.
As to the Court's vagueness holding, WVFL makes no new arguments and simply reiterates that the phrase "support or oppose" is unconstitutionally vague as a matter of law. Based on the analysis in the Court's preliminary injunction order, and with particular emphasis on the Supreme Court's holding in McConnell, WVFL's argument remains unpersuasive. The PAC definition is sufficiently definite to withstand constitutional scrutiny, and accordingly, WVFL's Second Motion for Summary Judgment [Docket 209] is
Plaintiffs challenge West Virginia's definition of "expressly advocating," contained in W. Va.Code § 3-8-1a(12). That section, which was amended by the Legislature in 2010, admittedly in response to the Court's preliminary injunction hearing,
Id. The West Virginia Code incorporates the phrase "expressly advocating" into the definition of "independent expenditure" and nowhere else. An "independent expenditure" is "an expenditure ... by a person ... [e]xpressly advocating the election or defeat of a clearly identified candidate... [and not made by or in cooperation with a candidate or PAC]." W. Va. Code § 3-8-1a(15). Independent expenditures are the subject of fairly extensive disclosure and disclaimer requirements once certain annual dollar amounts are reached.
All parties agree that subsection (A) of the "expressly advocating" definition embodies the "magic words" of express advocacy embraced by the Supreme Court in Buckley, and it is therefore per se constitutional. Plaintiffs CFIF and WVFL allege that subsections (B) and (C) are unconstitutionally vague and subsection (C) is unconstitutionally overbroad, both facially and as applied. In particular, Plaintiffs take issue with the phrase "reasonable meaning" in subsection (B) and the entirety of subsection (C), arguing that the language is vague, imprecise, and impermissibly relies on "intent and effect" tests, as condemned by the Supreme Court in WRTL II. Additionally, Plaintiffs assert that subsection (C) exceeds the scope of constitutionally permissible election regulation by capturing communications that "appeal to vote" but are neither express advocacy nor electioneering communications. (Docket 210 at 13-15.) Finally, Plaintiffs allege that the reporting requirements that attend expressly advocating, W. Va.Code §§ 3-8-2 and 3-8-5,
The 2010 amendments broke former subsection (A) into current subsections (A) and (B) and removed an instruction in the latter subsection to evaluate communications "in context." (Docket 193-1 at 13.) The 2010 amendments also thoroughly revised what was subsection (B), currently subsection (C), to approximate Chief Justice Roberts's "appeal to vote" test from WRTL II. See 551 U.S. at 469-70, 127 S.Ct. 2652 ("[A] court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."). In the preliminary injunction order, the Court held old subsection (B) unconstitutionally vague for failing to incorporate the definition of electioneering communication from BCRA, as required by Leake, and for referring to context and incorporating other vague standards of the kind decried in WRTL II. (Docket 125 at
Any discussion regarding the proper definition of express advocacy and associated reporting requirements must necessarily begin with Buckley. At the time Buckley was decided, it was well established that "compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment." 424 U.S. at 64, 96 S.Ct. 612. The Supreme Court examined Congress's purpose for enacting reporting and disclosure requirements in FECA — "promot[ing] full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process," id. at 78-79, 96 S.Ct. 612 — and determined that the purpose was insufficient to restrict the speech of persons and groups engaging only in issue advocacy. Id. ("To fulfill the purposes of the Act [the disclosure requirements] need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.") Accordingly, the Court limited the definition of "expenditure" to "reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate [and that are] directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate." Id. at 80, 96 S.Ct. 612 (footnote omitted).
Buckley's bright line "magic words" test stood as the law on this issue for over twenty-five years, until Congress passed BCRA, and the Supreme Court revisited the issue in McConnell. In McConnell, the Court rejected the idea that "the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy" and determined that the "magic words" test was "functionally meaningless" as a limit of government reach because persons and organizations could avoid reporting simply by not using those particular words. Id. at 192, 124 S.Ct. 619. Then, finding that the governmental interests articulated in Buckley applied in full to the new provisions of BCRA requiring reporting and disclosure of expenditures for ads that "are intended to influence voters' decisions and have that effect," the Court expanded the legitimate sweep of such requirements to reach the "functional equivalent of express advocacy." Id. at 206, 124 S.Ct. 619. In other words, McConnell upheld BCRA's reporting and disclosure requirements as a valid exercise of government regulatory authority "to the extent that" the electioneering communication ads to be regulated "are the functional equivalent of express advocacy." Id. The McConnell Court also stated that the definition of "electioneering communication" was not unconstitutionally vague. Id. at 103 (electioneering communication definition is "both easily understood and objectively determinable.").
Since WRTL II was decided, the Fourth Circuit has had occasion to apply the Supreme Court's holding to a case strikingly similar to the one at bar. In North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir.2008), a non-profit corporation challenged, among other things, North Carolina's two-pronged test to determine whether "an individual acted `to support or oppose the nomination or election of one or more clearly identified candidates.'" Id. (quoting N.C. Gen.Stat. § 163-278.14A(a)). The Fourth Circuit held that
Leake, 525 F.3d at 281-82. Applying that test and recognizing that WRTL II "was entertaining an `as-applied challenge'" to a statute held facially valid in McConnell, the Fourth Circuit struck down North Carolina's regulation as facially vague and overbroad. Leake, 525 F.3d at 285. The Court based its holding on the "multiple First Amendment deficiencies that North Carolina's definition displays," including "determin[ing] whether speech is regulable based on how a `reasonable person' interprets the speech's `essential nature' in light of four `contextual factors.'" Id. at 285-86.
Most recently, the Supreme Court decided Citizens United v. Federal Election
Prior to the 2010 amendments, W. Va.Code § 3-8-1a(12)(B) included in the definition of "expressly advocating" "communications... which in context can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidates." Id. (words "in context" deleted in 2010). That provision was subject to constitutional attack, because the Supreme Court has warned that "contextual factors ... should seldom play a significant role in the inquiry" into whether a communication is express advocacy. WRTL II, 551 U.S. at 473-74, 127 S.Ct. 2652. However, the words "in context" have been removed, and the provision therefore presents no infirmities for too heavily referencing context.
Section 3-8-1a(12)(B), as part of old § 3-8-1a(12)(A), was not specifically challenged by Plaintiffs in their initial pleadings (although current § 3-8-1a(12)(C) was specifically challenged). Nonetheless, the Court finds that subsection (B) of the "expressly advocating" definition is sufficiently clear to avoid constitutional problems. First, although "reasonable interpretation," which is part of subsection (C), focuses on a listener's perception or understanding of a communication, the phrase "reasonable meaning" is confined to the words of a communication themselves. That is, rather than inviting a myriad of interpretations, subsection (B) uses as a measure the plain meaning of a communication's words. Second, subsection (B) features several examples of the communications to which it refers, providing additional guidance to speakers as to whether their speech will fall within the definition. Finally, subsection (B) was originally part of subsection (A), which clearly contemplates Buckley-style words of express advocacy. By splitting old subsection (A) into current subsections (A) and (B), the legislature evinced no intent to capture a broader swath of speech; instead, the purpose of the alteration appears to have been clarity. For these reasons, the Court
Plaintiffs argue that subsection (C) of West Virginia's "expressly advocating"
In further considering the proper scope and meaning of the "appeal to vote" test, it is necessary to reiterate the foundational principles announced in Buckley. There, the Supreme Court recognized that it must weigh two countervailing interests: on the one hand, government's interest in regulating elections to prevent corruption and the appearance of corruption; and on the other hand, public debate and cross-pollination on issues essential to our system of government. See 424 U.S. at 26, 45, 96 S.Ct. 612. In striking a balance between those competing interests and squaring them with the First Amendment, the Court recognized the government's regulatory interest but limited its ability to enforce that interest to communications that are "unambiguously campaign related." Id. at 80, 96 S.Ct. 612. That government regulation of election speech must be "unambiguously campaign related" has never been overruled or circumscribed by the Supreme Court, and it is the foundation for regulating both "express advocacy," demarcated by Buckley's "magic words," and the "functional equivalent of express advocacy," marked by Chief Justice Roberts's "appeal to vote" test. Importantly, this line of analysis pertains to the breadth of permissible election regulation, not the clarity which is required of all government regulation.
Also as to the breadth of permissible election regulation, McConnell held that "electioneering communications," as defined in BCRA, may be regulated only insofar as they are the "functional equivalent of express advocacy." Id. at 206, 124 S.Ct. 619. The "functional equivalent" test was thus devised in the context of BCRA's "electioneering communication" definition, and its purpose was to anchor the election regulations at issue in that case to Buckley's "unambiguously campaign related" boundary, which was previously restricted to only "magic words express advocacy." WRTL II addressed an as-applied challenge to the very same federal electioneering communication regulations as McConnell, and it prescribed the "appeal to vote" test as a proxy for "functional equivalence." Although the Chief Justice's opinion in WRTL II emphasizes that the "functional equivalent" test was never applied outside the context of BCRA's electioneering communications regulations (in either McConnell or WRTL II),
The Supreme Court's vagueness holdings run through many of the same decisions, and a brief summary is again warranted at the outset. First, Buckley held that the "magic words of express advocacy" are not unconstitutionally vague. 424 U.S. at 44 n. 52 and 80 n. 108, 96 S.Ct. 612 (setting forth express advocacy as constitutionally firm standard). Second, McConnell held that "electioneering communications," as defined by BCRA, are not unconstitutionally vague. 540 U.S. at 103, 124 S.Ct. 619. Then, in WRTL II, the Court issued a highly enlightening decision, market by two divergent opinions, which guide the Court's analysis of vagueness in this case.
The main thrust of Chief Justice Roberts's WRTL II opinion was that "a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." 551 U.S. at 469-70, 127 S.Ct. 2652. Chief Justice Roberts was joined only by Justice Alito in the substantive portion of the WRTL II opinion. Justice Scalia filed a separate opinion, joined by Justices Kennedy and Thomas, concurring in part and concurring in the judgment. Specifically, although Chief Justice Roberts and Justice Alito saw "no occasion to revisit" McConnell, the concurrence expressed a desire to overrule McConnell's "functional equivalent" holding as unconstitutionally vague. Id. at 504, 127 S.Ct. 2652 (Scalia,
Id. at 493, 127 S.Ct. 2652 (Scalia, J., concurring). The fractured holding of the WRTL II Court leaves the "appeal to vote" test on shaky ground, at least as to the vagueness issue identified and addressed by all five justices joining in the judgment.
Subsection (C) of West Virginia's definition of "expressly advocating" is the Chief Justice's "appeal to vote" test from WRTL II, verbatim. Justice Scalia's WRTL II concurrence makes it abundantly clear that three justices would strike down W. Va.Code § 3-8-1a(12)(C) as unconstitutionally vague. See 551 U.S. at 493, 127 S.Ct. 2652 (Scalia, J., concurring). In addition, according to Chief Justice Roberts and Justice Alito, that the "appeal to vote" test was triggered only once a communication met the "bright line" requirements of BCRA's "electioneering communication" definition was a significant, if not dispositive, reason the test survived vagueness scrutiny in their plurality opinion in WRTL II. See id. at 474 n. 7, 127 S.Ct. 2652. WRTL II thus approved the "appeal to vote" test only within the confines of a BCRA "electioneering communication," which previously was upheld as facially valid, i.e., not vague, in McConnell.
Although the Court's overbreadth analysis above permits the possibility of implementing the "appeal to vote" test to anchor other election regulations to Buckley's "unambiguously campaign related" requirement, a stand-alone "appeal to vote" test cannot survive a vagueness challenge.
In its pleadings and at the preliminary injunction stage of this case, WVFL argued that W. Va.Code § 3-8-8(a) imposed
Since that time, the Supreme Court's decision in Citizens United unequivocally established the unconstitutionality of such a ban on corporate expenditures. West Virginia acknowledged the monumental shift in this area of election-related speech, and in 2010, it amended W. Va.Code § 3-8-8(a) to impose disclosure requirements on corporate expenditures instead. Nothing further is required of the Court on this issue, and Plaintiffs' motions for summary judgment [Dockets 209, 210] are therefore
Both CFIF and WVFL challenge West Virginia's definition of "electioneering communication." W. Va.Code § 3-8-1a(11) provides, in pertinent part:
Id. This definition was first amended in the June 28, 2008, second extraordinary session in response to Judge Faber's Order granting a preliminary injunction on the motion of CFIF. (Docket 38.) In that order, Judge Faber held that West Virginia's definition of "electioneering communication" was vague and overbroad because, unlike its federal counterpart in BCRA,
In response to Judge Faber's order, West Virginia removed leaflets, pamphlets, flyers, and outdoor advertisements from the list of types of communications that are included in the definition of an "electioneering communication." See W. Va. Code 3-8-1a(12)(2008). The 2008 definition of "electioneering communication" thus differed from its federal counterpart by including mass mailings, telephone banks, billboard advertisements, newspapers, magazines, and other periodicals as types of communications defined as "electioneering communications" and therefore subject to disclosure requirements.
In the preliminary injunction phase of this litigation, Plaintiffs CFIF and WVFL contended that West Virginia's inclusion of print media, in addition to broadcast media, chilled the speech of organizations wishing to engage in those communications without adhering to burdensome and invasive reporting requirements. (Docket 110 at 43.) In particular, WVFL sought to broadcast a radio advertisement, send out a mass mailing, and circulate petitions. (Id. at 44.) WVFL sought "a declaratory judgment and an injunction against the electioneering communication definition and reporting requirements." (Id.)
In the preliminary injunction order, the Court held the new "electioneering communication" definition unreasonably overbroad and supported by inadequate justification. (Docket 125 at 35-41.) The Court's preliminary injunction holding reviews the applicable case law and undertakes a relevant analysis, and it is therefore reproduced, in large part,
(Docket 125 at 35-40.)
In the 2010 regular session, the West Virginia Legislature again amended the provisions of the "electioneering communication" definition, presumably to comport with the October 2008 preliminary injunction order in this case. House Bill 4647 strikes the inclusion of "mass mailing[s], telephone bank[s], and billboard advertising" from the definition of "electioneering communication". (Docket 193-1.) However, West Virginia's definition of "electioneering communication" still retains "any paid communication ... published in any newspaper, magazine or other periodical," which exceeds the corresponding definition in BCRA. It remains true that the Legislature has a compelling interest in safeguarding
Preliminarily, West Virginia argues that Plaintiffs lack standing to challenge the definition of "electioneering communication," as amended and restricted to newspapers, magazines, and periodicals (as well as broadcast media). (Docket 194 at 16-17.) This contention relies on the fact that WVFL never asserted, in its complaint or otherwise, that it was contemplating print-source communications in newspapers, magazines, or periodicals. (Id.) However, the Court need not address the standing of WVFL, because it is clear that CFIF has standing to challenge the remaining portions of West Virginia's print-source regulation. As betrayed in an affidavit submitted by the Defendant itself, CFIF has engaged in the prohibited print-source communication in past elections, and it will presumably continue to utilize that media type in the future, especially if disclosures are not required as to those methods of communication in particular. (Docket 176-1 at 14.)
As to the substance of the overbreadth challenge, Citizens United made it clear that exacting scrutiny, and not strict scrutiny, is applicable to disclosure requirements. See, e.g., Citizens United, 130 S.Ct. at 914 ("The Court has subjected [disclosure] requirements to `exacting scrutiny'"). Electioneering communications, as defined by West Virginia law, are subject only to disclosure. See W. Va. Code §§ 3-8-2(f), -2b. Exacting scrutiny "requires a `substantial relation' between the disclosure requirement and a `sufficiently important' governmental interest." Id. at 914 (quoting Buckley, 424 U.S. at 64, 66, 96 S.Ct. 612). To survive the challenge to the remaining print-media sources, West Virginia must prove that imposing the disclosure requirements on newspapers, magazines, and periodicals
In addressing a similar overbreadth argument, the Supreme Court struck down a Massachusetts law that prohibited corporate speech on referenda issues. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 789-93, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). The Court invalidated the Massachusetts law by reasoning that it was (1) not based on "inherently persuasive" arguments, (2) not supported by precedent, and (3) not supported by an adequate "record or legislative findings." See id. at 789, 98 S.Ct. 1407. The Court will analyze those three possible bases for upholding West Virginia's law in turn. First, the argument that regulating print media is essential to effectively curbing corruption and the appearance of corruption in elections is not inherently persuasive to the Court. Documents demonstrate that print media is not heavily utilized for campaign-related
Since the entry of the Court's preliminary injunction order, Defendants have submitted additional affidavits from legislators, state executive officials, and various officers in the state Democratic Party. Those affidavits exhibit largely the same assertions as their predecessors, including conclusory statements such as "West Virginia campaigns rely extensively on non-broadcast media," Docket 176-1 at 12, and anecdotal statements such as "I unequivocally believe that non-broadcast media such as phone banks, mass mailings, and billboards are extremely effective forms of political communication," id. at 30-31. Furthermore, several of the affidavits expressly refer to print media sources that were removed from the "electioneering communication" definition in 2010, such as direct mail. (E.g., Docket 176-1 at 15-19.) Although several of the affidavits illustrate the potential of non-broadcast media as an effective electioneering tool, none of them presents anything more than anecdotal claims that, in the experience of several individuals who have run campaigns in the past, print media is widely used and must be regulated. These individuals very well may be correct, but West Virginia is not entitled to circumscribe the First Amendment rights of its citizens on the basis of legislators' and campaign officials' firmly held beliefs. Such justification will not suffice.
West Virginia also heavily relies on a spreadsheet, compiled and submitted by Nicholas Casey, chairman of the West Virginia State Democratic Party. (Docket 176-1 at 61-63; Docket 216-1.) That spreadsheet reflects candidate spending during select 2006 and 2008 "state, competitive district races" and third party spending in those races, as compiled by Mr. Casey and his staff from publicly-available information. In analyzing the data in that spreadsheet, Mr. Casey makes several conclusions. Specifically, he states that, in statewide races, broadcast media "plays a significant role; representing 61.6% of spending [by candidates]" and "[t]argeted print media, particularly mass mailings, [are] not as significant representing only 10.6% of spending." (Docket 176-1 at 59.) Notably, although Mr. Casey's affidavit is ostensibly aimed at justifying forms of print media that are no longer part of West Virginia's "electioneering communications" (namely, targeted mass mailings), it acknowledges the small role that print media plays in state-wide elections. This assertion is even more accurate as to "print/newspaper" sources, which represented a mere 2.3% of candidate spending in the attached chart. Mr. Casey continues to state that "[i]n regards to competitive district races, broadcast media
Mr. Casey's affidavit and the corresponding charts most acutely highlight two points: first, as to third-party spending, which is most relevant for the "electioneering communication" definition,
A final document submitted by West Virginia is remarkable for this line of analysis. During the Senate Debate on House Bill 4647, Senator Evan Jenkins, a democrat from Cabell County and member of the Senate Judiciary Committee, remarked at the dearth of evidence supporting the Legislature's actions:
(Docket 198-1 at approx. 12:30-16:00.) These comments, although certainly not binding or limiting on the Court, illustrate a lack of foundation for the Legislature's actions. No such foundation has been laid in the time since Senator Jenkins's statement.
It appears that West Virginia has certainly filed a sufficient amount of information for the inclusion of broadcast media (and perhaps mass mailings) in West Virginia's definition of "electioneering communication." However, much less has been offered in support of the inclusion of newspaper and periodical communications. In general, what has been offered is (1) conclusory, as in the case of the legislative findings; (2) anecdotal instead of empirical, such as the testimonials of several legislators and other officials; or (3) not specifically applicable to West Virginia or the narrow class of media still at issue. Additionally, and perhaps most fatally, the sparse empirical data in the record indicates that spending on non-targeted print sources like newspapers and magazines is so insignificant that West Virginia's inclusion of newspaper and periodicals cannot be substantially related to any significant governmental purpose. It must be re-emphasized that these criticisms, fatal as they may be, do not speak to the West Virginia Legislature's ability to regulate non-broadcast media. Rather, as the Citizens United Court instructed, courts "must decline to draw ... constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker." 130 S.Ct. at 891. Nothing in that holding, however, obviates the duty of government to tailor laws in accordance with constitutional command.
In the absence of more concrete data supporting the inclusion of newspapers, magazines, and periodicals, the Court
CFIF mounts two additional challenges to West Virginia's definition of "electioneering communication," both of which argue that certain aspects of the definition are unconstitutionally vague. First, CFIF challenges the portion of the "electioneering communication" definition that restricts its application to communications that are "publicly disseminated within ... [t]hirty days before a primary election ... or ... [s]ixty days before a general or special election." W. Va.Code § 3-8-1a(11)(A)(ii). According to CFIF, the phrase "publicly disseminated" is vague as to print media because it fails to pinpoint when print media is disseminated. (E.g., Docket 198 at 8.) This subsection, argues CFIF, is insufficient to "give the person of ordinary intelligence a reasonable opportunity to know," Grayned, 408 U.S. at 108, 92 S.Ct. 2294, when a print-source communication is "publicly disseminated" and therefore subject to disclosure requirements as an electioneering communication. Although the Court acknowledges that CFIF's argument is not wholly without merit, a resolution is no longer required. The Court held that inclusion of "newspaper[s], magazine[s] or other periodical[s]" in the definition of "electioneering communication" is not constitutionally justified (as the record now stands) and renders the "electioneering communication" definition fatally overbroad. The Court therefore struck those forms of print-media from the definition. Accordingly, this argument is moot.
Second, CFIF challenges the definition of "targeted to the relevant electorate,"
West Virginia mimics the "targeted to the relevant electorate" threshold structure that BCRA created, but several differences are readily observable. First, W. Va.Code § 3-8-1a(11) requires that every "electioneering communication" be "targeted to the relevant electorate"; BCRA requires only that geographically-sensitive elections (i.e., Senate and House elections) be "targeted to the relevant electorate."
Although not advanced by CFIF in great detail, the argument is twofold. First, an average citizen is unable to determine whether the "targeted" definition is satisfied as to a particular broadcast, and he is therefore unable to know in advance whether an advertisement is an "electioneering communication" under W. Va.Code § 3-8-1a(11). See Grayned, 408 U.S. at 108, 92 S.Ct. 2294 (laws are impermissibly vague if they fail to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited."). Second, even if the average citizen successfully inquires with a particular broadcast outlet as to their viewership figures in the relevant locale, there is no indication that West Virginia will adopt the word of that outlet as legally binding. In other words, State officials are free to make ad hoc determinations as to whether a communication "can be received" by the threshold number of individuals, even if that determination conflicts with the broadcast outlet's information. Id. (vagueness challenge can be also be asserted on the basis that a statute or regulation permits "arbitrary and discriminatory enforcement" by "impermissibly delegat[ing] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis."). Both aspects of vagueness contained in W. Va.Code § 3-8-1a(24) could chill political speech protected by the First Amendment, speech that the West Virginia Legislature presumably intended to protect by imposing the thresholds in the first place.
Although the parties argue that there exist no remaining questions of material fact, the Court is without sufficient information to grant summary judgment on this issue. There is no indication of what, if any, mechanisms exist to gauge the reach of various broadcast media in West Virginia. The Court is aware of several public and private organizations that provide audience measurement services and compile and release select data. It is unclear
While W. Va.Code § 3-8-1a(11)(A) sets forth the general definition of an "electioneering communication," subsection (11)(B) goes on to list certain communications that are exempt from the definition and therefore not subject to the reporting requirements in later sections of the election chapter. CFIF challenges four of those exemptions as vague and/or overbroad.
First, CFIF challenges the so-called "grassroots lobbying exemption" to the definition of "electioneering communication." W. Va.Code § 3-8-1a(11)(B)(v) provides that "electioneering communication" does not include "[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." In essence, then, the grassroots lobbying exception permits what would otherwise be an electioneering communication
Laws are impermissibly vague if they fail to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited." Grayned, 408 U.S. at 108, 92 S.Ct. 2294. In support of its vagueness argument, CFIF cites to the Fourth Circuit's decision in North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 712-13 (4th Cir.1999), a decision striking down North Carolina's definition of a political committee as vague and overbroad. The statute at issue in Bartlett defined political committee as any group "the primary or incidental purpose of which is to support or oppose any candidate... or to influence or attempt to influence the result of an election." Id. (citing N.C. Gen.Stat. § 163-278.6(14) (emphasis added)). The Fourth Circuit in Bartlett first held the use of "incidental" vague and overbroad because it "expressly sweeps within [the] ambit [of the definition] those groups that only incidentally engage in express advocacy." Id. at 712. From the discussion in Bartlett, it is clear that the court interpreted "incidental" as meaning "accidental," "unplanned," or "minor," such that an organization with even a very minor purpose of engaging in express advocacy fell within the definition of political
As for CFIF's challenge to the phrase "support or oppose," as used to modify particular speech, the Supreme Court settled the matter in McConnell. There, the Court addressed a challenge to the definition of "federal election activity," which included "a public communication that refers to a clearly identified candidate for Federal office ... and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office...." McConnell, 540 U.S. at 169-70, 124 S.Ct. 619; see 2 U.S.C. § 431(20)(A)(iii). In rejecting a vagueness challenge to the quoted provision, the McConnell Court noted that "[t]he words `promote,' `oppose,' `attack,' and `support' clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision." Id. at 170 n. 64, 124 S.Ct. 619 (emphasis added). The Court continued that "[t]hese words `provide explicit standards for those who apply them' and `give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.'" Id. (quoting Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294). It is important to emphasize that the Supreme Court in McConnell upheld the terms "promote," "oppose," "attack," and "support" when used to classify particular speech, not simply when used to categorize an organization as a political entity based on its primary or major purpose. Thus, the West Virginia Legislature need not provide any clarification of "support or oppose" because the Supreme Court has recognized this phrase is sufficiently clear on its face.
CFIF additionally argues that the grassroots lobbying exemption unfairly and unconstitutionally discriminates on the basis of the content of a communication and its viewpoint. CFIF's challenges the legislature's choice to limit this exemption to communications that (1) refer to pending legislation rather than including proposed legislation or amendments, (2) are addressed to legislators rather than all government officials, and (3) are made while the legislature is in session rather than at any time. (Docket 210 at 21-22.) According to CFIF, the grassroots lobbying exemption is subject to strict scrutiny
"Disclaimer and disclosure requirements may burden the ability to speak, but they `impose no ceiling on campaign-related activities,' and `do not prevent anyone from speaking.'" Citizens United, 130 S.Ct. at 914 (quoting Buckley, 424 U.S. at 64, 96 S.Ct. 612; McConnell, 540 U.S. at 201, 124 S.Ct. 619). As opposed to content-based restrictions on speech, which the Supreme Court has subjected to strict scrutiny, see e.g., Playboy Entm't Grp., 529 U.S. at 813, 120 S.Ct. 1878, the Court has subjected disclosure and disclaimer requirements to exacting scrutiny, which requires only a "substantial relation" between the disclosure requirement and a "sufficiently important" governmental interest. See Citizens United, 130 S.Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66, 96 S.Ct. 612). To withstand exacting scrutiny, "the strength of the government interest must reflect the seriousness of the actual burden on First Amendment rights." Davis, 554 U.S. at 744, 128 S.Ct. 2759 (citing Buckley, 424 U.S. at 68, 96 S.Ct. 612). West Virginia is correct that the grassroots lobbying exemption relates to disclosure and disclaimer requirements and does not impose any manner of ban on speech, and it is therefore subject only to exacting scrutiny. Thus, CFIF's challenge will succeed only if West Virginia cannot adequately justify the imposition of disclosure and disclaimer requirements on communications that do not meet the grassroots lobbying exemption, in light of the exemption for qualifying communications. In other words, to save the exemption, it must be shown that there exists substantial relation between the exemption scheme and a sufficiently important government interest.
The Supreme Court long ago identified at least three government interests that are "sufficiently important" to justify disclosure and disclaimer requirements like those at issue in West Virginia's electioneering communications scheme. "First, disclosure provides the electorate with information `as to where political campaign money comes from and how it is spent ...' in order to aid the voters." Buckley, 424 U.S. at 66, 96 S.Ct. 612 (quoting H.R.Rep. No. 92-564, at 4 (1971)). "Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity." Id. at 67, 96 S.Ct. 612 (citing S.Rep. No. 93-689, at 2 (1974)). "Third, and not least significant, record keeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations" of other election regulations. Id. at 67-68, 96 S.Ct. 612. The Supreme Court in Buckley, although engaging in an exacting scrutiny analysis like the one required here, went on to proclaim that "[t]he disclosure requirements, as a general matter, directly serve substantial governmental interests." Id. at 68, 96 S.Ct. 612 (emphasis added).
Having established that reporting requirements may serve several sufficiently
The grassroots lobbying exemption contained in W. Va.Code § 3-8-1a(11)(B)(v) represents a judgment by the West Virginia legislature that (1) the State does not have a sufficiently great interest in requiring disclosure of certain issue-based or legislative communications and (2) the carve-out to recognize that insufficient interest should be narrowly cabined. The requirements that an exempted grassroots communication be made while the legislature is in session and that it relate to a pending piece of legislation ensure that the communication concerns a relevant and pressing issue. Both requirements severely restrict the ability of speakers to construct "sham issue ads" that fit the exemption but operate as electioneering speech, and they therefore further the government interests that West Virginia is pursuing with its reporting requirements. Stated another way, by circumscribing the scope of the exemption as it has, West Virginia acknowledges that communications occurring outside the legislative session or concerning issues other than the active legislative agenda are more likely to be "sham issue ads," and it therefore subjects those communications to disclosure and disclaimer requirements. In terms of the exacting scrutiny analysis, the Court is satisfied that West Virginia's choice to exempt such a narrow class of communications from the reporting requirements is substantially related to furthering the government interests discussed above — both because it imposes reporting requirements on communications more likely to be "sham issue ads" and because the exemption spares from reporting requirements those communications least likely to be "sham issue ads." The Court
CFIF next challenges the so-called "voter guide exemption" contained in W. Va. Code § 3-8-1a(11)(B)(viii). That section excludes from the definition of "electioneering communication" and attendant reporting requirements any "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 focused on issues and voting history." W. Va.Code § 3-8-1a(11)(B)(viii). In particular, CFIF challenges this exemption as vague because it requires "no appearance of endorsement" and impermissibly relies on the intent of the speaker. (Docket 210 at 24-25.) West Virginia's only response is to state that CFIF lacks standing to challenge this exemption because it never published, attempted to publish, or stated
Article III of the U.S. Constitution confines the judicial power of the United States to the resolution of actual cases or controversies. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The case or controversy restriction includes the concept of standing, which requires that the party invoking federal jurisdiction have a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (citation omitted). In a prospective statutory challenge, standing generally requires that the plaintiff face a genuine threat of imminent prosecution. See, e.g., Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). However, in First Amendment cases, standing requirements are relaxed, such that a person need not "expose herself to arrest or prosecution" before bringing a First Amendment challenge because "a credible threat of present or future prosecution itself works an injury that is sufficient to confer standing, even if there is no history of past enforcement," namely self-censorship. N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 13 (1st Cir.1996) (citations omitted); see also N.C. Right to Life, Inc. v. Bartlett, 168 F.3d at 710 (citing Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973)).
Although West Virginia correctly points out CFIF has, at no point during the pendency of this case, asserted an intent to publish a "voter's guide," the relevant language is not so limited. By its very words, W. Va.Code § 3-8-1a(11)(B)(viii) exempts any communication that (1) refers to all candidates for the relevant office, (2) contains no appearance of endorsement for any candidate, and (3) is intended for nonpartisan education. In order to establish standing, then, a plaintiff need only assert that its speech is chilled by the demands of West Virginia's allegedly unconstitutional law. Here, CFIF has stated that "[b]ecause CFIF's speech sometimes addresses the positions or actions of candidates, its ads could take a form that might be deemed voter guides." (Docket 180 at 22.) CFIF also alleges that it generally desires to avoid West Virginia's reporting requirements and therefore desires not to engage in any speech that could be classified an "electioneering communication." (Docket 220 at 15.) CFIF has thus hedged its speech, some of which may be excepted from the definition of "electioneering communication" by the voter guide exemption, to avoid the accompanying reporting requirements. "Since the statute[] challenged by the plaintiffs threaten[s] to subject them to [preclusive disclosure requirements], and the plaintiffs are therefore `chilled' from engaging in potentially protected First Amendment political expression, standing exists in this case." Leake, 525 F.3d at 280 n. 2.
At this point in the Court's analysis, it has been said several times that intent-based tests are unconstitutionally vague because they "chill core political speech by opening the door to a trial on every ad." WRTL II, 551 U.S. at 468, 127 S.Ct. 2652. The Supreme Court in WRTL II emphasized that election-related speech standards "must be objective, focusing on the substance of the communication rather than the amorphous considerations of intent and effect." Id. at 469, 127 S.Ct. 2652 (citing Buckley, 424 U.S. at 43-44, 96 S.Ct. 612). "A test focused on the speaker's intent could lead to the bizarre result that identical ads aired at the same time could
CFIF additionally challenges the prong of the voter guide exemption that requires a communication to "contain[] no appearance of endorsement for or opposition to ... any candidate." W. Va.Code § 3-8-1a(11)(B)(viii) (emphasis added). According to CFIF, "[r]equiring a speaker to judge how a message will appear to others creates fatal uncertainty." (Docket 210 at 25.) In support of that argument, CFIF cites to WRTL II, where the Supreme Court stated:
551 U.S. at 469, 127 S.Ct. 2652. West Virginia makes no attempt to defend its law on the merits. Although CFIF is correct in stating that West Virginia may not impose an effect-on-the-listener based test, it is unclear that W. Va.Code § 3-8-1a(11)(B)(viii) does so. The term "appearance" could mean either "occurrence," "display," "manifestation," or "an external show," in which case the statute would not necessarily call for an effect-on-the-listener test, or it could mean "indication" or "perception, idea, [or] notion of what a thing appears to be," in which case the statute would depend on listener-based criteria. See generally Oxford English Dictionary (2d ed. 1989 & Mar. 2011 online ed.), available at http://www.oed.com/view/Entry/9555?redirectedFrom=appearance# eid. This ambiguity, however, only serves to compound the vagueness problem that CFIF highlights in its briefing. The statute arguably calls for listener-based evaluation of the content of speech. Because a speaker cannot know whether the statute requires such listener-based evaluations or not, and because the statute may reasonably be read as so requiring, the Court
CFIF next challenges W. Va.Code § 3-8-1a(11)(B)(i), which embodies an exemption for "bona fide news accounts." According to CFIF, this provision is unconstitutionally vague because the determination of what constitutes a "bona fide news account" is not clear on its face and ultimately lies within the sole discretion of state regulators. (Docket 210 at 26-27.) West Virginia responds that CFIF lacks standing to assert such a challenge, arguing that the provision is really an "exception to an exception to [an] exemption." (Docket 176 at 32-33.) W. Va.Code § 3-8-1a(11)(B)(i) provides that "electioneering communication" does not include:
Id. As West Virginia asserts, this provision sets forth several rules related to the scope of "electioneering communication." The first clause establishes that news stories, commentaries, and editorials are generally exempt from the definition of "electioneering communication" when they are published or broadcast in media outlets that are not owned or controlled by a candidate, political party, or political committee. Stated conversely, the first clause establishes the general rule that news stories, commentaries, and editorials published or broadcast in media outlets that are owned or controlled by a candidate, political party, or political committee fall within the definition of "electioneering communication." The second clause then goes on to state an exception to the general rule: even if a news story is disseminated by a candidate-owned or political committee-owned media outlet, it does not fall within the definition of "electioneering communication" if it is (1) a bona fide news account and (2) part of a general pattern of news coverage that affords reasonably equal coverage to all candidates. See W. Va. Code § 3-8-1a(11)(B)(i).
CFIF does not challenge the general exemption applicable to all news stories, commentaries, and editorials published in non-candidate, non-political committee owned or controlled media outlets. Instead, CFIF challenges the phrase "bona fide news account," which appears in the exception to the exemption, as vague. However, as stated above, the exception only applies to news stories (not commentaries or editorials) disseminated by media outlets owned or controlled by candidates for office, political parties, or political committees. CFIF has never alleged, nor can it, that it disseminates or intends to disseminate news stories in media outlets owned or controlled by candidates or political parties or committees. As opposed to commentaries and editorials, which are frequently contributed by the public at large, news stories are generally authored by freelance journalists and writers employed by the media outlet. CFIF has never alleged that it acts in either capacity. As such, CFIF cannot demonstrate that it publishes or intends to publish a
CFIF's final challenge to the "electioneering communication" exemptions is to W. Va.Code § 3-8-1a(11)(B)(iv), which excludes any "communication paid for by any organization operating under § 501(c)(3) of the Internal Revenue Code." CFIF argues that the 501(c)(3) exemption "violates equal protection" and is unconstitutionally vague because CFIF is uncertain what it means to "operate under" § 501(c)(3). (Docket 210 at 27-28.) In addition, CFIF argues that West Virginia has not and cannot articulate a reasonable basis for exempting communications by § 501(c)(3) organizations but not § 501(c)(4) organizations, such as CFIF itself. (Id.) West Virginia responds by stating that the 501(c)(3) exemption mirrors federal law, is not unconstitutionally vague, and stands with good reason. (Docket 176 at 35-40.) In particular, West Virginia points to federal tax law as supplying the rationale for the 501(c)(3) exemption, which West Virginia argues is sufficient to survive exacting scrutiny. (Id.)
26 U.S.C. § 501(c)(3) provides for the exemption from federal income tax of organizations organized and operated exclusively for religious, charitable, scientific, or educational purposes. See id. Section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign in support of or opposition to any candidate for public office. See 26 C.F.R. 1.501(c)(3)-1 (2006); Rev. Rul. 2007-41 (June 18, 2007). If a qualified organization engages in such campaign-related speech, the Internal Revenue Service (IRS) will deny or revoke the organization's § 501(c)(3) status. See Internal Revenue Serv., IRS Continues Program on Political Campaign Activity by Charities; Stresses Education and Enforcement (Apr. 17, 2008), available at http://www.irs.gov/newsroom/article/0,,id=181570,00.html. Certain non-partisan activities, such as preparing and distributing voter guides or engaging in other issue-driven voter education activities, are permitted of § 501(c)(3) organizations, provided they are carried out in an unbiased manner. See Rev. Rul. 2007-41, at 2-3. "Section 501(c)(3) organizations may take positions on public policy issues ... [h]owever, [they] must avoid any issue advocacy that functions as political campaign intervention." Id. at 8. In short, section 501(c)(3) organizations may only engage in pure issue advocacy. U.S. Treasury Department guidance lists key factors in determining whether a communication results in prohibited political campaign intervention, including: (1) whether a statement identifies a candidate for public office; (2) whether the statement expresses approval or disapproval for a candidate's actions or views; (3) whether the statement is delivered near in time to an election; (4) whether the statement references voting or an election; and (5) whether the statement relates to specific legislation, put forward by
West Virginia essentially argues that because § 501(c)(3) absolutely prohibits an organization from participating or intervening in any political campaign on behalf of or in opposition to candidates for public office, no organization can simultaneously meet the definition of a § 501(c)(3) organization and engage in an "electioneering communication" under State law. Instead, any § 501(c)(3) organization that engages in election-related communications (i.e., anything other than pure issue advocacy) will be divested of its tax-exempt status by the IRS and will no longer qualify for the exemption to West Virginia's definition of "electioneering communication." The Court agrees with West Virginia. W. Va.Code § 3-8-1a(11)(B)(iv) represents the Legislature's recognition that § 501(c)(3) organizations may only engage in issue advocacy, and its interest in requiring "electioneering communication" disclosures for such communications is therefore insufficient to burden the speech with reporting requirements. As stated in its brief, West Virginia relies on the Federal Election Commission's justification for including a similar exemption in BCRA — without the exemption, restrictions on electioneering communications "could inadvertently stifle the ability of charitable organizations to carry out their core functions by limiting or prohibiting their advertising." Electioneering Communications: Explanation and Justification, 67 Fed.Reg. 65,190-01, 65,199(I)(F)(2) (Oct. 23, 2002). Commentary on the proposed federal rule illustrate that the § 501(c)(3) exemption ensures fundraising appeals, public service announcements, documentaries, and other educational programming that feature (but do not endorse or oppose) candidates are not captured by the "electioneering communication" definition and therefore discouraged or restricted. Id. at 65,199. West Virginia additionally argues that requiring disclosures from § 501(c)(3) organizations would result in multiple and unnecessary layers of enforcement. The FEC was also aware of this rationale in crafting the federal exemption; it characterized as "compelling" the testimony of one witness, which stated, "already the tax rules are complicated enough. If you throw in election law on top of that, there are many [§ 501(c)(3)] groups that will just throw up their hands and say we're not going to get involved (in grassroots lobbying activity), it's just too risky, it's too much to take on." 67 Fed.Reg. at 65,200. These arguments demonstrate that West Virginia's electioneering communication definition, as well as the § 501(c)(3) exemption, bear a substantial relation to important government interests, sufficient to withstand exacting scrutiny. Although the West Virginia Legislature has not set forth comprehensive findings for enacting such an exemption, the § 501(c)(3) exemption finds support in analogous federal law.
Finally, CFIF argues that the phrase "operating under" is unconstitutionally vague because the term is not defined and federal tax law does not require IRS approval to claim § 501(c)(3) status while an application is pending. According to guidance published by the Treasury Department, "[w]hen the IRS approves a timely filed exemption application, [tax] exempt status is recognized back to the date the organization was created. Thus, while an application is pending, the organization can treat itself as exempt from federal income tax under section 501(c)(3)." Internal Revenue Serv., Contributions to Organization
The challenges addressed thus far relate to the definitional portions of the West Virginia Code. Plaintiffs also challenge the contours of the burdens imposed on campaign-related speech once those definitions are accepted as legitimate. As stated previously, election-related disclosure and disclaimer requirements are constitutional if they survive exacting scrutiny, meaning they are substantially related to a sufficiently important government interest. See, e.g., Doe v. Reed, 130 S.Ct. at 2818.
W. Va.Code § 3-8-2(b) imposes disclosure and disclaimer requirements on individuals and organizations making independent expenditures "in an aggregate amount of value in excess of $1,000 during a calendar year." W. Va.Code § 3-8-2b imposes similar requirements on individuals and organizations that have spent more than $5,000 during a calendar year on electioneering communications. See id. § 3-8-2b(a). Both reporting provisions require disclosure of "the name of any person sharing or exercising direction or control over the activities of the person making the expenditure." W. Va.Code § 3-8-2(b)(1)(A), 3-8-2b(b)(1). Plaintiffs challenge the "sharing or exercising direction or control over the activities" language in both sections, arguing that it is vague and seeking a permanent injunction to prevent enforcement of the reporting requirements. (Docket 210 at 30-31.)
West Virginia's reporting requirements are largely modeled on those in BCRA. As CFIF pointed out in its supporting memorandum, "recognizing the vagueness inherent in the federal statute, the [FEC] subsequently promulgated its own regulation clarifying that disclosure is limited to `officers, directors, executive directors or their equivalent, partners, and in the case of unincorporated organizations, owners of the entity or person making the disbursement for the electioneering communication.'" (Docket 210 at 31 (quoting 11 C.F.R. § 104.20(a)(3)).) During the pendency of this action, West Virginia has implemented a similar provision, albeit in the relevant administrative reporting forms rather than the state administrative code. The Secretary of State's independent expenditure and electioneering communication forms expressly state that "`[p]ersons sharing or exercising direction or control' means officers, directors, executive directors or their equivalent, partners, and in the case of unincorporated organizations, owners of the entity or person making the disbursement for the electioneering communication [or independent expenditure]." (Docket 227 at 6, 9.) West Virginia additionally filed an affidavit of Dave Nichols, Manager of Elections in the Secretary of State's Office, swearing that the forms have been officially adopted and implemented by the Secretary of State, as
When state law has been authoritatively construed so as to render it constitutional or an easily understood and uniformly applied practice has developed that has virtually the force of a judicial construction, state law must be read in light of those limits when challenged on First Amendment grounds. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Although City of Lakewood concerned the discretion of agency officials to burden speech rather than statutory vagueness, its holding sheds light on the sufficiency of the Secretary of State's reporting forms. Not only do the forms represent binding agency action, as the Secretary of State is required by state law to prescribe such forms and enforce them, they also evidence the implementation of an easily understood and uniformly applied practice for reporting independent expenditures and electioneering communications. In addressing a similar challenge to a federal criminal statute, the Fourth Circuit noted that statutory vagueness can be cured by regulatory guidance, and it refused to limit such regulatory guidance to "published regulations," instead citing "longstanding [government] practice" in its discussion. See United States v. McAusland, 979 F.2d 970, 974-75 (4th Cir.1992) ("While we agree that the existence of a published regulation ... prevents the statute from being vague as applied, we do not believe it is the exclusive method of preventing vagueness."). The Supreme Court has additionally instructed that "[i]n evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered." Hoffman Estates, 455 U.S. at 494 n. 5, 102 S.Ct. 1186 (citing Grayned, 408 U.S. at 110, 92 S.Ct. 2294); see also Boos v. Barry, 485 U.S. 312, 330, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) ("[F]ederal courts are without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent." (emphasis added)). In light of these precedents, the Court must conclude that the West Virginia Secretary of State has issued sufficiently binding reporting forms, such that any vagueness in the phrase "sharing or exercising direction or control over the activities" is remedied. The narrowing construction is reasonable and readily apparent, and a reasonably intelligent individual seeking to make independent expenditures or engage in electioneering speech is on notice as to what must be reported to the Secretary of State in exchange for his speech.
CFIF also separately challenges the word "activities" in the same phrase, arguing that it could encompass either "only political/policy speech of an organization" or "everything that the organization does." (Docket 210 at 30.) This argument is unavailing for the reasons set forth above. The Secretary of State's forms makes clear that the required reporting of "the name of any person sharing or exercising direction of control over the activities of the person making the expenditure," as used in the relevant code sections, is limited to directors, partners, and business executives. Quite simply, there is no longer any ambiguity as to which activities the
WVFL also argues that certain reporting requirements imposed upon independent expenditures and electioneering communications by W. Va.Code §§ 3-8-2 and 3-8-2b, respectively, are "patently unreasonable" and "severely burden First Amendment rights." (Docket 211 at 51.) Without any further explanation of its argument, WVFL asks the Court to hold those reporting requirements unconstitutional and unenforceable. West Virginia responds that WVFL did not properly plead this challenge in either its original or amended complaint, and it is therefore not a part of this lawsuit. (Docket 216 at 25 n. 25.)
W. Va.Code § 3-8-2 contains three separate reporting requirements applicable to anyone making independent expenditures.
Similarly, W. Va.Code § 3-8-2b contains two reporting requirements applicable to electioneering communications, which by definition are communications clearly referring to a candidate for statewide office disseminated within thirty days of a primary election or sixty days of a special or general election. See W. Va.Code § 3-8-1a(11)(A). First, reporting is required of every person who has spent a total of $5,000 or more during any calendar year on electioneering communications. See W. Va.Code § 3-8-2b(a)(1). Second, reporting is required of every person who has spent a total of $1,000 or more during the two weeks immediately preceding the day of an election. See W. Va.Code § 3-8-2b(a)(2). For both reporting requirements — the $5,000 long-term requirement and the $1,000 short-term requirement — an individual is required to file a report with the Secretary of State only "within twenty-four hours of each disclosure date." W. Va.Code § 3-8-2b(a)(2). "Disclosure date" is defined as either "[t]he first date during any calendar year on which any electioneering communication is disseminated after the person paying for the communication has spent a total of $5,000 or more [on electioneering communications]" or "[a]ny other date during that calendar year after any previous disclosure date on which the person has made additional expenditures totaling $5,000 or more [on electioneering communications]." W. Va. Code § 3-8-1a(9). In other words, an electioneering communications report must be filed within twenty-four hours of each increment of $5,000 spent on electioneering communications in a calendar year.
As an initial matter, WVFL's amended complaint specifically seeks a declaratory
The brevity of WVFL's challenge to the reporting requirements extends to its summary judgment briefing, where the organization cursorily states that the disclosure requirements are "patently unreasonable" because "the burden of the independent-expenditure reporting requirements and the electioneering-communication reporting requirements are so great that the government's interest does not reflect the burden on speech." (Docket 211 at 51.)
The provisions challenged, because they concern reporting and disclosure requirements, are subject to exacting scrutiny. See, e.g., Buckley, 424 U.S. at 64, 96 S.Ct. 612. The Court is tasked, therefore, with determining whether the reporting requirements set forth above bear a "substantial relation" to "important state interests," not to determine whether the requirements are the least restrictive means of advancing those interests. See N.C. Right to Life Comm. Fund for Ind. Political Expenditures v. Leake (NCRL-FIPE), 524 F.3d 427, 439 (4th Cir.2008). The state interests served by reporting requirements such as these are familiar. As the Supreme Court aptly stated in Buckley v. Valeo:
424 U.S. at 66-68, 96 S.Ct. 612. West Virginia's reporting requirements closely approximate those found in federal law, and they are substantially related to the three categories of government interest enumerated by the Buckley Court. As to the electioneering communications reporting requirement, the Supreme Court in McConnell upheld a nearly identical provision that required a report to be filed within twenty-four hours of the date on
WVFL cites to Citizens for Responsible Gov. State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir.2000), a case in which the Tenth Circuit invalidated a state reporting requirement because of a provision mandating separate notice to the candidates in an affected race and a "patently unreasonable" twenty-four hour deadline for all reports. Id. at 1197. Several differences exist between the statute at issue in Davidson and the reporting requirements challenged in the present action. First, and perhaps most compelling, West Virginia's reporting requirements feature threshold amounts and limited time frames, which severely hedge their applicability. The invalidated statute in Davidson required twenty-four hour disclosure for any expenditure in excess of $1,000. See id. In contrast, West Virginia imposes twenty-four hour reporting only on electioneering communications that aggregate $5,000 in a calendar year, W. Va. Code § 3-8-2b(a)(1), and electioneering communications and independent expenditures that aggregate $1,000 (or $500 in the case of county or municipal elections) in the final two weeks of an election, W. Va.Code §§ 3-8-2(c)(1), 3-8-2b(a)(2). West Virginia also imposes a more relaxed, forty-eight hour reporting requirement on independent expenditures aggregating $10,000 in a calendar year. W. Va.Code § 3-8-2(d)(1). The tiered approach that West Virginia has enacted, whereby larger thresholds apply to total expenditures and smaller thresholds apply to expenditures made during the final weeks before an election, proportionately reflects the State's varying interest in prompt disclosure of election-related information. Thus, although West Virginia's reporting laws are not required to withstand strict scrutiny, they appear narrowly tailored to achieve the governmental interests at play. Electioneering communications are, by definition, communications that refer to a candidate within one month of primary elections or two months of general or special elections. Second, it is noteworthy that West Virginia imposes its reporting requirements only on individuals and groups engaging in electioneering communications, which are by definition close in time to elections and refer to a clearly identified candidate, see W. Va.Code § 3-8-1a(11)(A), and independent expenditures, which are expenditures featuring Buckley-style words of express advocacy in support of or opposition to a clearly identified candidate, see W. Va.Code § 3-8-1a(15). Thus, West Virginia requires reporting of only money spent on communications falling within one of those definitions, and only then once the spending aggregates eclipse certain thresholds,
West Virginia also imposes disclaimer requirements on all independent expenditures and electioneering communications. Those disclaimers must (1) clearly indicate that the communication is not authorized by the candidate or candidate's committee and (2) clearly identify the person making the expenditure. See W. Va. Code §§ 3-8-2(e), 3-8-2b(e). If the communication is disseminated by broadcast, cable and satellite transmission, the statements must be both clearly spoken and clearly readable. WVFL challenges these provisions by stating that the required disclaimers "will take up precious space and air time, distract those receiving the speech, and mislead them into believing speech is election-related, rather than issue-related.... Besides, how is anyone to fit all the information the law requires into a 30 or 60 second ad and still have time to say much else?" (Docket 211 at 51.) Therefore, states WVFL, "the burden of the disclaimer requirements is so great that the government's interest does not reflect the burden on the speech." (Id.)
West Virginia's disclaimer provisions serve the same interests as the disclosure provisions just discussed. The Supreme Court upheld disclaimer requirements nearly identical to West Virginia's in Citizens United, stating that
130 S.Ct. at 915. Like the disclosure provisions, West Virginia's disclaimer requirements must survive only exacting scrutiny. The disclaimer provisions at issue here concern only electioneering communications, which occur close to an election, and independent expenditures, which feature words of express advocacy. See W. Va. Code §§ 3-8-1a(11)(A), 3-8-1a(15). Avoiding confusion and supplying the public with important information about the sources of election-related advertising serve important State interests. While speakers may experience additional costs as a consequence of supplying such information to the public, these costs do not render the disclaimer provisions per se unconstitutional, as WVFL seems to assert. Following the Supreme Court's lead in Citizens United, the Court finds the disclaimer requirements constitutional on their face and as applied to WVFL. Accordingly, WVFL's Second Motion for Summary Judgment [Docket 209] is
CFIF next challenges the phrase "political purposes" as used in W. Va.Code
CFIF is certainly correct that W. Va. Code § 3-8-5(a) is not a model of clarity. That subsection provides:
W. Va.Code § 3-8-5(a). According to CFIF, it is unclear whether it must "keep detailed accounts" and provide financial statements for all money given "for political purposes," which it argues is impermissibly broader than Buckley-style words of express advocacy, or only for money given for the purpose of "expressly advocating the election or defeat of a clearly identified candidate." (Docket 220 at 19.) Even if the Court determines that CFIF must only comply with W. Va.Code § 3-8-5 as to money given for the purpose of "expressly advocating," CFIF asserts that the "expressly advocating" definition is vague. (Id.)
The Court has already struck subsection (C) from the definition of "expressly advocating" in W. Va.Code § 3-8-1a(12), and effectively held that the remaining definition of "expressly advocating" is limited to Buckley-style words of express advocacy. Thus, any vagueness challenge to that definition has already been resolved. Accordingly, should the Court find that W. Va. Code § 3-8-5(a) applies to an "association of persons" or an "organization of any kind" (such as CFIF) only when it spends for "expressly advocating," then CFIF's
From a plain reading of W. Va.Code § 3-8-5(a), this is indeed the conclusion the Court must reach. The phrase "expressly advocating the election or defeat of a clearly identified candidate for state, district, county or municipal office" serves as an important limiting factor in § 3-8-5(a), and by the words of the statute, it apples to "[e]very candidate, treasurer, person and association of persons, [and] organization of any kind." The intervening phrase "including every corporation ... supporting a political committee ... or engaged in other activities ..." simply clarifies that such corporations are among the "association[s] of persons" and "organization[s] of any kind" contemplated by the initial clause. The result of this statutory interpretation is to render CFIF's remaining claims moot. Pursuant to W. Va.Code § 3-8-5(a), only when an organization or association is "expressly advocating" must it account for and report expenditures. Any ambiguity that existed in the definition of "political purposes" is rendered moot as to CFIF, because regardless of the "political purposes" definition, pursuant to W. Va.Code § 3-8-5, CFIF must only account for and report expenditures for "expressly advocating."
As a final point, CFIF argues that the Court should rule on the definition of "political purposes," which appears in W. Va. Code § 3-8-2 as well, regardless of the resolution of its obligations under W. Va. Code § 3-8-5. CFIF's argument was first made in its reply brief, and it was made only after West Virginia pointed out that § 3-8-5 is already limited to express advocacy, arguably mooting the challenge CFIF actually plead. To be certain, CFIF challenges the "political purposes" definition and its accompanying "supporting or opposing" language only in the context of W. Va.Code § 3-8-5. (Docket 1 at 7-8.) In contrast, CFIF challenges § 3-8-2 only on the definition of "independent expenditure," an issue that has already been addressed by the Court. (Docket 1 at 12.) CFIF failed to give notice, until its very last substantive filing, to the Court and the other parties that it intended to challenge the phrase "political purposes" as it appears in § 3-8-2. The Court therefore declines CFIF's urging to rule more expansively than the scope of this case as it was plead. Accordingly, CFIF's Motion for Summary Judgment [Docket 210] is
CFIF's final argument is that W. Va.Code § 3-8-2b(b)(5) is vague insofar as it requires disclosure of the "names and addresses of any contributors who contributed a total of more than one thousand dollars between the first day of the preceding calendar year and the disclosure date and whose contributions were used to pay for electioneering communications."
Like all disclosure requirements, W. Va. Code § 3-8-2b(b)(5) is subject to exacting scrutiny. See, e.g., Citizens United, 130 S.Ct. at 914 ("The Court has subjected [disclosure] requirements to `exacting scrutiny'"). This standard "requires a `substantial relation' between the disclosure requirement and a `sufficiently important' governmental interest." Id. at 914 (quoting Buckley, 424 U.S. at 64, 66, 96 S.Ct. 612). To withstand exacting scrutiny, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Davis v. Fed. Election Comm'n, 554 U.S. 724, 744, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citing Buckley, 424 U.S. at 68, 96 S.Ct. 612). Although West Virginia argues no government interest in its briefing, the government interest at stake in W. Va.Code § 3-8-2b(b)(5) is plainly transparency — the notion that elections will be fairer and the electorate more informed if the sources of election-related spending are fully disclosed. For purposes of exacting scrutiny, the probative question then becomes whether the burden on speech that W. Va.Code § 3-8-2b(b)(5) imposes is commensurate with, or substantially related to, that government interest.
It is apparent to the Court that requiring the disclosure of corporate or organizational contributors' personal information can be quite burdensome on those entities and may discourage general treasury contributors from associating with and giving to the entity as a consequence. Furthermore, as the FEC has explained,
72 Fed.Reg. at 72,911. The practical effect of requiring such expansive disclosure is not only to compel a flood of information, but a flood of information that is not necessarily relevant to the purpose the regulation purportedly serves: to provide the electorate with information as to who is speaking. Other disclosure requirements in the West Virginia Code — such as those requiring reasonable disclosure when $5,000 is directly spent on electioneering communications, see W. Va.Code § 3-8-2b(a)(1), or those requiring disclosure when $1,000 is spent on electioneering communications in the last two weeks of an election, see W. Va.Code § 3-8-2b(a)(2) — provide the electorate with the identity of the speaker, the organization. When read as West Virginia suggests, W. Va.Code § 3-8-2b(b)(5) adds so much information that it ultimately fails to further the government interest it was enacted to serve.
Other considerations indicate that the statute, interpreted as West Virginia suggests, bears no substantial relation to the government interest it serves. Not only may a large swath of general treasury contributors not support an organization's electioneering communications, they may not even be aware that the organization is engaging in electioneering communications. In addition, several witnesses in the relevant FEC hearing indicated that even identifying all individuals who provided $1,000 in funds to a corporation or labor organization "would be very costly and require an inordinate amount of effort." Id. Administrative costs aside, the consequence of the disclosures required by W. Va.Code § 3-8-2b(b)(5), which encompass the names and addresses of general donors, corporate investors, and even customers who have purchased the company's products or services, will surely discourage organizations from speaking, or else face diminished business or organizational success.
In summary, W. Va.Code § 3-8-2b(b)(5) does not bear a sufficient relationship to the interest of providing the electorate with meaningful information as to who is speaking in electioneering communications. It adds little value to the disclosure scheme that exists in West Virginia law, and it does so at great cost to the vitality and ability to speak of corporations and organizations. On the other hand, interpreting W. Va.Code § 3-8-2b(b)(5) to reach only contributions that are either (1) received by the organization or corporation in response to a solicitation specifically requesting funds to pay for an electioneering communication or (2) specifically designated for electioneering communications by the contributor, the statute does not overreach and bears a substantial relation to the information-providing purpose it serves. Accordingly, CFIF's Renewed Motion for Summary Judgment [Docket 210] is
The Preliminary Injunction Order [Docket 123] entered on October 17, 2008, is
For the reasons above, WVFL's Second Motion for Summary Judgment [Docket 209] is
Finally, the Court notes the uncertain future for this sort of analysis in the wake of Citizens United, where the Supreme Court held that "disclosure requirements [need not] be limited to speech that is the functional equivalent of express advocacy." 130 S.Ct. at 915. Whether or not this holding eviscerates the constitutional utility of the "appeal to vote" test is subject to debate, at least for the time being. What surely remains as a constraint on the scope of permissible regulation, however, is Buckley's "unambiguously campaign related" boundary. Whether political speech meets that standard is the probative question, regardless of whether the "appeal to vote" test is implemented in order to anchor speech regulations to Buckley's standard (as is the case in West Virginia's subsection (C)).
2 U.S.C. § 434(f)(3)(A)(I) (emphasis added).
See Memorandum from John McCain et al. to Fed. Election Comm'n, supra. As an example, a broadcast in Western Virginia that mentions a candidate for Governor of West Virginia and reaches only a few hundred viewers in Southeastern West Virginia would not and should not be considered an electioneering communication in West Virginia.
(Docket 227 at 9.) The Secretary fails, however, to expressly acknowledge that a "disclosure date" will not occur until the next increment of $5,000 is eclipsed, a detail that renders the "$1,000 short-term" reporting requirement somewhat useless. In all likelihood, the Legislature meant to impose the "$1,000 short-term" reporting requirement independent of the "disclosure date" trigger, so that enhanced reporting was required closer to election day.
