Recent federal court rulings appear to threaten West Virginia’s $1,000-per-election cap on contributions to political action committees that spend independently of candidates, U.S. District Judge Thomas Johnston said at a Wednesday hearing.
But Johnston held off ruling immediately on whether to block the cap temporarily.
Stay the Course West Virginia and two of its would-be contributors, an individual and a corporation, sued in May alleging the state limit chills their free speech rights. They requested the preliminary injunction pending the outcome of their lawsuit.
With 97 days before the general election, the independent expenditure PAC says it seeks to support certain incumbents while targeting their opponents.
The lawsuit targets Secretary of State Natalie Tennant as West Virginia’s elections chief. Doren Burrell, a senior assistant attorney general representing Tennant, told Johnston that individual contributors and other kinds of PACs face the same cap.
“The West Virginia law is tailored to provide a uniform opportunity for all citizens to have that voice, to exercise that speech … It applies equally to all people,” Burrell said.
Burrell also noted that West Virginia has sought to bolster its campaign finance oversight in the wake of a 2009 U.S. Supreme Court ruling that barred state Supreme Court Justice Brent Benjamin from hearing cases involving Massey Energy Co.
The 5-4 ruling found a substantial risk of bias because the coal company’s then-chief executive, Don Blankenship, had spent more than $3 million to help Benjamin win election in 2004. Most of the money went to an independent expenditure PAC.
“The West Virginia law addresses good government, fair government,” Burrell said.
Representing the plaintiffs, lawyer Allen Prunty countered that the 2009 decision hinged on the right to due process as interpreted under the 14th Amendment to the U.S. Constitution.
“It has nothing to do with First Amendment free speech rights,” Prunty said. “Its holding is limited to the issue of recusal.”
But several federal rulings since then land squarely on the state contribution cap, Prunty argued. They include the landmark 2010 U.S. Supreme Court ruling known as Citizens United. It allows unlimited direct spending by corporations and unions on elections. Later that year, the U.S. Court of Appeals for the District of Columbia Circuit allowed an independent expenditure PAC for SpeechNow.org to raise unlimited donations from individuals. There are other similar rulings, Prunty noted.
“Four decisions by three appeals courts have held that as a matter of law, contributions to independent expenditure political action committees cannot be limited. Period,” Prunty told the judge.
Prunty also cited how these cases have concluded that the threat of corruption posed by a contribution diminishes the farther the money travels from a candidate.
“As a matter of law, independent expenditure political action committees are not associated with corruption,” Prunty said.
Burrell challenged that conclusion, invoking the Blankenship-Benjamin decision.
“That position ignores some of the political realities of the situation,” Burrell said.
That prompted the judge to question whether Tennant seeks to second-guess Citizens United.
“What you are saying is that our corruption in West Virginia is different,” Johnston said.
Tennant is free to disagree with such rulings, but that does not make for much of a legal argument, the judge told Burrell.
The lawsuit also seeks to ensure direct corporate contributions to independent expenditure PACs, given the Citizens United decision. Tennant’s office has conceded that some of the guidance offered by her office on the topic is outdated and fails to reflect that ruling. Johnston asked both sides to draft a proposed order reflecting that understanding.
The judge also gave the parties until Monday to address whether county prosecutors should be part of the lawsuit. While it carries out election laws, Tennant’s office has no power to enforce them. The lawsuit had named Mercer County Prosecuting Attorney Scott Ash as a representative defendant, but he’s cited his other duties and caseload and has declined to take part.
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