Tennant

BLUEFIELD - An independent political action committee and a group of potential donors are suing West Virginia Secretary of State Natalie Tennant and the state's prosecuting attorneys, arguing that some of the state's election laws and policies violate their First Amendment rights.

Stay the Course West Virginia, an unaffiliated independent expenditure PAC; David Bailey, chairman and treasurer of Stay the Course; Pineville Lumber Inc., a West Virginia company and potential donor; and Thomas Stephen Bailey, a resident and potential donor, filed their complaint in the U.S. District Court for the Southern District of West Virginia Wednesday.

In addition to Tennant, the plaintiffs name Scott Ash, prosecuting attorney for Mercer County, as a defendant in the suit. He is being sued as the representative of class of 55 prosecuting attorneys in the state, who are responsible for enforcing the criminal penalties associated with the state's Election Code.

In the plaintiffs' 19-page complaint, they say Stay the Course was established for the sole purpose of "soliciting contributions in order to make independent expenditures prior to and with respect to the West Virginia general election" on Nov. 6.

The independent expenditures, they say, will support the reelection of "one or more incumbent state government officeholders who have contributed to improving the West Virginia business climate and strengthening the West Virginia economy."

However, Stay the Course and its potential donors argue that the state's election laws are holding them back from doing just that.

Currently, the Election Code prohibits a person from contributing more than $1,000 "in connection with or on behalf of any person engaged in furthering, advancing, supporting or aiding the nomination or election of any candidate for any (statewide or other public office)."

In particular, the code prohibits a PAC, like Stay the Course, from accepting contributions of more than $1,000 from any one person prior to the primary election, and of more than $1,000 from any one person after the primary and before the general election.

Meanwhile, West Virginia Code, Section 3-8-8, which was rewritten by state lawmakers in 2010, does not expressly prohibit corporation contributions to a "political committee" or "other persons" for any election expense. Its prohibition of corporate contributions is limited to contributions to "any candidate or candidate's campaign."

However, current legislative rules -- adopted in 2008, before Section 3-8-8 was rewritten in 2010 -- prohibit corporations from making "a contribution or expenditure... whatsoever in connection with" any primary or general election campaign, with the exception of certain instances. The rules further provide that no political committee or other person shall knowingly accept corporate contributions.

In addition, it is the current policy of the Secretary of State's Office that no corporate political activity is permitted, except for the establishment of a separate segregated fund, or PAC.

The plaintiffs argue that the Secretary of State's policy and the legislative rules are "inconsistent" with state code, and Tennant's policy, in particular, violates a 2010 decision of the U.S. Supreme Court.

In Citizens United v. FEC, the nation's high court held that corporate funding of independent political broadcasts in candidate elections cannot be limited because of the First Amendment.

The Court's 5-4 ruling in favor of Citizens United stemmed from a dispute over whether the non-profit corporation could air a film critical of current U.S. Secretary of State Hillary Clinton.

The decision infuriated President Barack Obama, who criticized the majority in a State of the Union Address.

Obama said the ruling would "open the floodgates for special interests to spend without limit" in elections.

The ruling overturned a ban on spending in support of or in opposition to a candidate -- i.e. advertising -- but kept intact a law that forbids companies from donating funds directly from their treasuries to candidates.

"The current policy of the Secretary of State prohibiting corporations from contributing to any political action committee, even if the committee is an independent expenditure committee, violates the judicial extension of Citizens United to independent expenditure political action committees," Stay the Course wrote.

According to the complaint, Pineville Lumber wishes to contribute $5,000 to Stay the Course but "believes it is prohibited from doing so by law and by the Secretary of State's current policy, and that it would be subject to criminal prosecution should it make this contribution."

Thomas Stephen Bailey, of Kanawha County, also wishes to make a contribution -- of $1,000 -- to Stay the Course, but, like Pineville Lumber, fears criminal prosecution, the complaint states.

As a result, Stay the Course argues that it -- along with Pineville Lumber, Thomas Stephen Bailey and its chairman and treasurer, David Bailey -- is being denied its First Amendment right to free speech.

In response, the plaintiffs are seeking a preliminary injunction prohibiting enforcement of the challenged statutes, rules and policies; class certification of the 55 prosecuting attorneys; expedited declaratory relief; a permanent injunction prohibiting enforcement of the challenged statutes, rules and policies; and attorneys fees and costs.

"Time is of the essence," Stay the Course argues, noting that the general election is less than six months away.

"Plaintiffs will suffer irreparable harm of a significant magnitude if the challenged statutes, legislative rules and policies of the Secretary of State are allowed to remain in effect and plaintiffs are denied the opportunity to solicit, make, receive and accept contributions in any amount from natural individuals and corporations in order for the (Stay the Course) to plan and prepare for its independent expenditures in the weeks and months before the general election on Nov. 6, 2012," according to the complaint.

Allen R. Prunty and W. Bradley Sorrells of Charleston law firm Robinson and McElwee PLLC are representing the plaintiffs.

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