This article originally provided by The Herald-Dispatch

September 29, 2005

W.Va. takes different approach toward attack ads

By LAWRENCE MESSINA
Associated Press Writer

CHARLESTON, W.Va. (AP) -- Tired of playing political whack-a.m.ole with attack ads that seem to skirt existing election law, West Virginia is trying a new approach with legislation passed during this month's special session.

People or groups that promote or target a candidate for state office - whether by broadcast or print ads, mass mailings, leaflets or even phone calls - close to an election must now file disclosures about such "electioneering communications" with the Secretary of State's office.

The legislation does not apply to candidates or political action committees, as they already must report donors and spending. It instead focuses on ads by others that praise or pillory a candidate without saying to "vote for" or "vote against" that candidate - the magic phrases that trigger previously enacted election campaign regulations.

"If you say 'John Doe is unfit,' it has the same effect as 'vote against John Doe,'" said Senate Judiciary Chairman Jeff Kessler, D-Marshall, who championed the legislation. "This law deals with electioneering communications, period. It doesn't say you specifically have to be this type of group or that type."

West Virginia's 2004 election season featured several ads that fell into unregulated gray areas. They included a TV spot repeatedly aired by the self-described watchdog group West Virginia Wants to Know. The spot featured a former staffer of Attorney General Darrell McGraw, alleging wrongdoing by both him and his brother, then-Supreme Court Justice Warren McGraw.

Both were up for re-election; the attorney general won by a narrow margin, while his brother was defeated. But because the ad did not tell viewers how to vote, West Virginia Wants to Know did not have to report anything to anyone about it. Nor did anyone who contributed money to film it and put it on the air.

"She had just gotten fired," Wanda Carney, the group's co-founder, said of the staffer. "It had nothing to do with the election. You can't help when an election is."

The Federal Election Commission and some states regulate electioneering communications, but largely limit their rules to television and radio ads. But like these laws, West Virginia's legislation targets ads that appear within 30 days of a primary election and 60 days of a general election.

Gov. Joe Manchin was expected to sign the legislation on Friday.

The legislation also extends to 527 groups, known by the section of the Internal Revenue Code that governs them. That may make West Virginia the first to try to regulate these groups, which played huge roles in the 2004 elections, on the state level.

"This area clearly needs more scrutiny," said Alex Knott, political editor for the nonpartisan Center for Public Integrity in Washington, D.C.

"During the last election cycle, when you had groups like Swift Boat (Veterans for Truth) and MoveOn.org becoming household names, you also had $645 million spent by 527s nationwide," Knott said. "That's more money than was raised by Bush and Kerry put together."

But the legislation's 527-related provisions could spark a legal challenge. Besides requiring 527s to register with the Secretary of State, it also caps contributions to those groups at $2,000 per election cycle.

While welcoming some of the disclosure provisions, state Republican Party Chairman Rob Capehart has questioned whether the donation limit runs afoul of free speech safeguards. And the U.S. Supreme Court this week agreed to hear appeals in lawsuits challenging Vermont's attempt to cap political donations.

The legislation could also face a challenge from Don Blankenship, chairman and CEO of Massey Energy Co. Blankenship plowed at least $2.5 million of his own money into 527 groups that targeted Warren McGraw, the defeated state Supreme Court justice. West Virginia Wants to Know, the group that aired the unregulated anti-McGraw TV ad, has since stated that Blankenship bankrolled its effort as well.

"I don't think it makes a difference to me, but I worry about it long term that people be allowed to speak out that don't have means that I have," Blankenship told The Associated Press.

Kessler, the Senate Judiciary chairman, believes the legislation can withstand the scrutiny. He noted that it does not stop individuals from spending any amount under their own names. Blankenship, for instance, recently spent an estimated $500,000 in a failed attempt to sway lawmakers to repeal the sales tax on food.

"Individuals can still say whatever they want to say, and engage in the political process," Kessler said. "I think that what we ended up with is a model for other states to follow."

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