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Federal Judge Again Limits Scope of West Virginia’s Campaign Speech Restrictions

November 2008

On October 19, 2008, the U.S. District Court for the Southern District of West Virginia again granted a preliminary injunction sought by Wiley Rein attorneys on behalf of the Center for Individual Freedom. Again, West Virginia's corporate expenditure bans and general regulations apply only to communications that expressly advocate the election or defeat of a clearly identified state candidate, and West Virginia's electioneering communication disclosure laws may only be applied to broadcast and radio ads that mention a state candidate.

This is the second such order. As discussed in our , a different federal judge had enjoined West Virginia's statutes in a similar manner in April. In June, however, the West Virginia legislature met in special session and amended its campaign finance laws. Because the laws were amended, the federal court lifted its preliminary injunction, requiring a new motion for a preliminary injunction to be brought. It was this motion that the court granted in October.

While the West Virginia legislature altered the language of its corporate bans and electioneering communication disclosure requirements in response to the first preliminary injunction, much of the same vagueness and lack of tailoring concerns still existed. The court, therefore, limited the new statutes in much the same way that it had limited the previously enacted statutes, by limiting the general corporate expenditure bans to express advocacy and the electioneering communication disclosure requirements to broadcast and radio communications that mention a state candidate.

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