This article originally provided by The Charleston Gazette

April 10, 2008

Lawyers argue over rules for political ads

Va.-based group wants to produce spots without disclosure on funding

By Andrew Clevenger
Staff writer

Anonymous advertising in West Virginia political campaigns would open the door for a repeat of the 2004 Supreme Court race, where voters did not learn until later who was spending millions of dollars on behalf of candidates, several lawyers told a federal judge Wednesday.

But the Center for Individual Freedom argued that West Virginia's election laws - which require the group to disclose its donors if it buys political advertising - violate its free speech rights under the First Amendment.

The Virginia-based organization asked U.S. District Judge David A. Faber to grant it an injunction allowing it to advertise in the upcoming state Supreme Court election without disclosing its spending or its donors. The state's primary election is May 13.

Last month, the center filed a lawsuit against the state's top election official, Secretary of State Betty Ireland. Mercer County Prosecuting Attorney Timothy Boggess was also named in the suit as a representative of all the state's prosecutors.

Three of the four Democratic candidates for state Supreme Court have joined in fighting the injunction, as have the West Virginia AFL-CIO, the state Education Association, the Council of Churches and other groups.

Chief Justice Elliott "Spike" Maynard, the only incumbent running, declined to join the other candidates, saying that he might have to rule on the case in the future.

Because state election laws are vague, there is no bright-line test to know what kind of speech is prohibited, Thomas Kirby, a lawyer for the Virginia center, argued Wednesday during the two-hour hearing.

Unlike federal guidelines, which specify that the messages be broadcast and reach at least 50,000 people in a few moments, West Virginia electioneering laws reduce the audience to 500 and allow for other media, he said.

"[They're] going to regulate e-mail, outdoor advertising, phone banks, everything but person-to-person discussion," he said.

He asked U.S. District Judge David A. Faber to consider all of the possible interpretations of when information published in a magazine is disseminated: when it is first printed, mailed, or for sale on a newsstand.

"Is it disseminated until the dentist takes it out of his waiting room three years from now?" Kirby asked.

Without clear guidelines to follow, the center can't know what it is allowed to say, which is unconstitutional because it has a chilling effect on the group's right to free speech, he said.

Ireland's lawyer, Tom Smith, said voters have the right to know who is behind information so they can identify potential bias in the source.

The Legislature put the electioneering laws in place in response to "unfettered corporate contributions on behalf of sham agencies," he said.

"Sham electioneering is in the finest tradition of American democracy," Faber commented, producing a laugh from the gallery.

Attorney Anthony Majestro, who represents candidates Bob Bastress, Menis Ketchum and Margaret Workman, said the lawsuit was "an ambush," filed just prior to the primary to bolster its claim with a sense of urgency.

"They're trying to create their own emergency," he said.

Majestro argued the true motives behind political advertising can be hidden if the public doesn't know who is behind the ad.

"The content of speech is often judged by who the speaker is," he said.

He called the 2004 Supreme Court race "infamous." In that election, Massey Energy chief executive Don Blankenship spent about $3.5 million of his own money to support the candidacy of Brent Benjamin, who won a seat on the court.

Two of the five seats on the high court will be filled in this election, with justices elected to 12-year terms.

Nicholas Preservati, who represents Boggess, said advertising in a judicial election is particularly sensitive, because in many instances the judicial canon of ethics prevents candidates from addressing specific issues, leaving them vulnerable to attack.

Unlike federal rules, which put blackouts in place just prior to elections, West Virginia allows public discourse to continue unchecked, he said, so long as there is disclosure.

"There is no prohibition on speech in the West Virginia statute," said. "The need for the public to know who is saying these ads is an important public interest."

Faber said he would issue his ruling soon, but did not say when that will be.

To contact staff writer Andrew Clevenger, use e-mail or call 348-1723.