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Federal Judge Sharply Limits Scope of West Virginia Campaign Ad Restrictions

May 2008

On April 22, 2008, a federal district judge in West Virginia granted a preliminary injunction sought by Wiley Rein attorneys on behalf of the Center for Individual Freedom. Under the terms of the preliminary injunction, West Virginia's corporate expenditure ban now applies only to those messages that expressly advocate the election or defeat of an identified state candidate. In addition, West Virginia's electioneering communication disclosure laws, which were significantly broader than those regulated under federal law, may only be applied to broadcast and radio ads that mention a state candidate.

West Virginia imposes two types of restrictions on corporate speech. First, it has several statutes that, using various vague phrases, forbid corporate spending for speech that might affect voters or elections. The U.S. Supreme Court's 1976 Buckley decision held that restrictions on spending for independent speech had to be precise, objective and narrow, and, therefore, limited vague identification of regulated spending, such as "in connection with an election," to include only "express advocacy," which is sometimes called the "magic words" test. The Court's 2003 McConnell decision, which upheld a new, specifically defined category of speech called "electioneering communications" did not eliminate the "magic words" test for use in those instances where the laws in question were as vague as were found in Buckley. In fact, the Court approved the scheme specifically because the federal statute's detailed definition of electioneering communications drew a bright line that was at least as precise and objective as the "express advocacy" standard. The preliminary injunction granted by the federal district judge expressly declares that the vague West Virginia standards are governed by the Buckley "express advocacy" standard and, therefore, the state's corporate prohibition is limited to include only spending on communications that contain "express advocacy" as defined in Buckley such as "vote for," "vote against" and "elect."

West Virginia also has its own version of an "electioneering communication" standard, which requires a speaker to disclose various pieces of information about expenditures for such communications and the speaker's contributors. While the federal definition of "electioneering communications" regulates certain broadcast communications that identified a federal candidate within 30 days of a primary or 60 days of a general election, the state definition applies to all media, encompassing not only television and radio communications, but also print advertising, direct mail, email, and telephone calls. According to the district court, there was no justification for extending the state's definition of electioneering communications to cover those additional outlets. Moreover, the court noted that the state's definition suffered from numerous vagueness and lack of tailoring problems. Therefore, the preliminary injunction limited the scope of West Virginia's law to only cover broadcast communications.

Making an appearance for the Center for Individual Freedom was Wiley Rein attorney Thomas Kirby. On pleadings, Mr. Kirby was joined by Wiley Rein attorneys Jan Witold Baran and Kevin Plummer.