On January 18, 2013, the Fourth Circuit Court of Appeals upheld a majority of West Virginia’s disclosure law in a victory for transparency in elections. The decision in Center for Individual Freedom v. Tennant agreed with several arguments the Brennan Center made in an amicus brief filed in December 2011.
West Virginia law includes a provision requiring disclosure of those who contribute to organizations that sponsor “electioneering communications” — political ads that mention a candidate and are released within a certain number of days before an election. In ruling on a 2008 challenge to this provision, the trial court imposed an “earmark only” rule under which only donors who specifically earmark donations for the purpose of supporting a particular electioneering communication need to be disclosed.
The Brennan Center’s amicus brief explained that this judicially imposed rule mimics federal policy and is wholly ineffective: savvy donors easily avoid disclosure by refraining from earmarking their donations, but give them with a wink and a nod, knowing they will be used to pay for political advertisements.
The Fourth Circuit agreed and reversed the district court, restoring the broad transparency rule. This important ruling makes clear that an earmarking requirement is not constitutionally mandated when states seek disclosure of underlying donors, and that states can constitutionally require disclosure of those who fund electioneering advertisements. If an individual or entity funds an organization that engages in political spending and the donor does not prohibit the funds from being used for political purposes, the states can require the organization to disclose the donor.
The Brennan Center also urged the court to uphold West Virginia’s inclusion of ads in newspaper and print periodicals as electioneering communications that must be disclosed. At the federal level, only broadcast media—TV and radio—are included in the definition. If an entity makes an electioneering communication, that expenditure must be reported and publicly disclosed.
Following the 2004 election, West Virginia expanded on the federal definition of electioneering communications to include many other types of media: direct mailings, telephone banks, billboard advertisements, and periodicals. Early on in the litigation, the district court cast doubt on this broad coverage and the state narrowed its law to only include broadcast and printed periodicals.
The Fourth Circuit affirmed that West Virginia can constitutionally require disclosure of both broadcast and non-broadcast media, observing that “there is no reason why the public would not have [the same] interest in knowing the source of campaign-related spending . . . [in] print” as it does in broadcast ads. The Court concluded that only covering print advertisements — and not billboards, robo-calls, and direct mail, as West Virginia originally had — was underinclusive, and struck the print ad provisions from the law before sending it back to the lower court. Nonetheless, the opinion was clear that the state may constitutionally require disclosure of extensive media beyond the broadcast communications covered under federal law. The West Virginia legislature should waste no time in accepting the court’s invitation and reenacting its original, robust disclosure law.
Photo by steakpinball.