WEST VIRGINIA RECORD

RICHMOND, Va. – A three judge panel of the U.S. Court of Appeals for the Fourth Circuit has affirmed in part, reversed in part and remanded in part the campaign finance case, Center for Individual Freedom v. Tenant.

Judges Diana Gribbon Motz, Allyson K. Duncan and Henry F. Floyd heard the case and Floyd wrote the opinion for the unanimous panel.

“The First Amendment provides that "Congress shall make no law... abridging the freedom of speech,” Floyd wrote in the first line of the opinion.

“In its now-famous Citizens United v. FEC decision, the Supreme Court recognized that the First Amendment 'has its fullest and most urgent application to speech uttered during a campaign for political office.'

“In this case, we confront the delicate balance between protecting political speech and informing the electorate about the organizations that bankroll modern elections."

Floyd then traced the path the case had taken before it reached the Court on appeal.

“Following the 2004 election, the West Virginia legislature acted to strengthen the state’s election statutes due to an explosion of expenditures by groups independent of candidate," he wrote.

“These new laws required organizations to file reports with the West Virginia Secretary of State and include disclaimers on their communications when they made certain election-related expenditures and engaged in campaign-related speech.”

The Center for Individual Freedom and West Virginians for Life brought separate suits against various West Virginia state entities alleging that the West Virginia campaign finance statutes were unconstitutional. The two groups feared prosecution because their communications fell within the scope of the law, but they were unwilling to disclose the sources of their contributions as the law required.

CFIF filed a complaint challenging the reporting and disclaimer requirements of the updated campaign statutes and the district court allowed several organizations and state Supreme Court candidates, including now-Justice Menis E. Ketchum, to intervene as defendants.

On April 22, 2008, the district court entered an injunction stopping West Virginia from applying the campaign finance statutes to “anything other than communications that expressly advocate the election or defeat of a clearly identified candidate.” The injunction also restricted the definition of “electioneering communication” to certain broadcast media.

Shortly after the injunction was entered, the West Virginia Legislature amended the sections of the statute that were the subject of the injunction and the district court granted the state’s motion to dissolve the injunction, directing CFIF to seek a new injunction based on the amended statute language.

WVFL filed its complaint and motion for preliminary injunction on Sept. 20, 2008. Because the complaint was similar to the CFIF complaint, the district court consolidated the two cases.

The district court again granted preliminary injunctions with respect to some of the provisions of the law and, again, the Legislature amended the provisions at issue.

CFIF and WVFL each filed for summary judgment on Sept. 14, 2010, and on Aug. 3, 2011, the district court granted in part and denied in part their motions.

West Virginia appealed parts of the district court’s decision and CFIF cross-appealed on other issues. Although WVFL did not file a notice of appeal, it argued that if the Fourth Circuit upheld the district court’s determinations then the reporting and disclaimer requirements should be struck down due to their vagueness and overbreadth.

After a lengthy discussion, the court reached its decision.

“We affirm the district court’s decisions to:

(1) strike 'newspaper, magazine or other periodical' from West Virginia’s 'electioneering communication' definition;

(2) uphold the 'electioneering communication' definition’s exemption for grassroots lobbying;

(3) decline to consider the merits of CFIF’s challenge to the bona fide news accounts exemption because the organization lacks standing; and

(4) prohibit prosecutions for violations that occurred while the earlier injunctions were in effect.

However, we reverse the district court’s decision with respect to:

(1) its conclusion that subsection (C) of the 'expressly advocating' definition is unconstitutional;

(2) its choice to uphold the 'electioneering communication' definition’s § 501(c)(3) exemption; and

(3) its application of an 'earmarked funds' limiting construction to the reporting requirement for electioneering communications. Because WVFL did not file a notice of appeal in this case, we cannot consider its challenge to the district court’s finding that the statutory scheme’s 24- and 48-hour reporting requirements are constitutional."

The case will now return to the United States District Court for the Southern District of West Virginia at Bluefield for further deliberations.