This article originally provided by The Daily Mail

April 23, 2008

W.Va. ad rules partly blocked

by Lawrence Messina
The Associated Press

A federal judge has blocked West Virginia election officials from enforcing several disclosure rules governing political advertising, agreeing with an advocacy group that they are too vague.

U.S. District Judge David Faber partly granted the preliminary injunction sought by the Center for Individual Freedom, which seeks to run ads in the state Supreme Court race before the May 13 primary.

But Faber also narrowed the scope of Tuesday's ruling so that it would still require spending and donor reports for broadcast ads that fall under the state's "electioneering communications'' law.

The Virginia-based center sued over that 2005 statute, which seeks to regulate various forms of advertising that "refers to a clearly identified candidate'' within 30 days of a primary and 60 days of a general election.

The disclosure rules apply only to communications that cost $5,000 or more and involve candidates for the Legislature or statewide office. Noting that the state law's federal counterpart applies only to broadcast, Faber's ruling exempts an array of other media from the disclosure and reporting requirements: "mailings, faxes, emails, phone banks, leaflets, pamphlets, and other printed or published materials.''

The core of Tuesday's ruling applies to provisions that forbid direct corporate spending on elections and govern "independent expenditures.'' Faber limited disclosure reports in these areas to ads that "expressly advocate the election or defeat of a clearly identified candidate.''

Objecting to having to disclose its donors or spending, the center previously waged similar fights in Louisiana and Pennsylvania and claimed partial victories in each. Its lawyer welcomed Faber's order.

"This order gives the center substantial freedom to exercise its First Amendment rights,'' Thomas Kirby said Tuesday. "We're going to take a look at the situation and decide what we are going to say.''

The order noted that the center had sought to reach out to voters via broadcast, print and telephone banks, regarding limits to lawsuits, damage awards "and other related justice issues.''

Secretary of State Betty Ireland, targeted in the lawsuit as the state's chief elections officer, plans to comply with the order while she reviews it and weighs any grounds for appeal, Deputy Secretary Sarah Bailey said.

The lawsuit also named a representative county prosecutor, whose lawyer praised the ruling's conclusions regarding preprimary electioneering communications.

"We think it's a victory for transparent elections,'' Nick Preservati said. "Any broadcast ads that they're going to run, they're going to have to disclose their donors.''

Faber concluded that the center ultimately would likely prevail in its legal challenge of the corporate and independent expenditure provisions, given their vagueness.

The judge also found that without his injunction, the center would suffer far more harm than the defendants. Three Democratic candidates for Supreme Court -- Bob Bastress, Menis Ketchum and Margaret Workman -- had intervened in the case on Ireland's side along with the West Virginia Education Association and the state AFL-CIO.

Those intervening groups and others allowed to file briefs in the case criticized Faber's exemption of some ads from disclosure.

"You cannot fully judge the content of the message unless you know who the messenger is and what that messenger's real motives are,'' said the Rev. Dennis Sparks, executive director of the state Council of Churches. "Unless West Virginia voters know where the money has come from, they cannot determine the credibility the ads.''

Others that weighed in with filings included Citizen Action Group, the Ohio Valley Environmental Coalition and the state Democratic Party, Employment Lawyers Association and Association for Justice. The latter group represents trial lawyers.

Coverage of the center's 2007 ad campaign in Pennsylvania revealed ties to the now-defunct National Smokers Alliance. Created and funded by cigarette giant Philip Morris, it gave the center $5 million when it dissolved in 2001.

As recently as 2006, the center relied on fundraising by American Target Advertising, a Virginia company owned by veteran conservative activist and direct-mailer Richard Viguerie, according to a disclosure report it filed in Washington state.