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Federal judge rules caps to independent expenditure PACs unconstitutional

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A West Virginia federal judge recently declared unconstitutional subsections of state code that prohibited businesses and individuals from contributing more than $1,000 to independent expenditure political action committees.

The suit was brought in May 2012 by Stay the Course West Virginia and its chairman, David Bailey, along with Pineville Lumber Inc. and Kanawha County voter Thomas Stephen Bailey. It was filed against Secretary of State Natalie Tennant and Mercer County Prosecutor Scott Ash.

Bailey created Stay the Course West Virginia to make independent expenditures supporting the re-election of certain incumbents before the 2012 general election.

State law prohibited a person or corporation from contributing more than $1,000 to independent expenditure political action committees and also prevented these PACs from accepting contributions of more than $1,000 from a person.

After last year's memorandum opinion and order, this challenge to contributions was the only remaining claim.

The suit stated that before 2010, state code provided no corporation could contribute "anything of value to a corporation" to "any candidate financial agent or political committee" and prohibited the solicitation of corporate contributions. The previous law also established a penalty for violation of a fine up to $10,000.

In 2010, lawmakers rewrote the law and did not prohibit contributions to a political action committee for election expenses, the suit stated.

However current law did prohibit solicitation of corporate contributions to "any candidate or candidate's committee." The law kept the penalty of a misdemeanor charge and fine of up to $10,000.

Stay the Course argued the rules violated decisions by the U.S. Supreme Court declaring corporations could not be prohibited from making unlimited independent expenditures expressly advocating the election or defeat of a political candidate.

Pineville Lumber, the suit states, wanted to make an independent expenditure of $5,000 to Stay the Course. Bailey also wanted to solicit contributions of more than $1,000 from people and corporations.

Thomas Stephen Bailey also wanted to contribute more than $1,000 to Stay the Course.

The court previously granted plaintiffs a preliminary injunction, which prevented the enforcement of the $1,000 contribution limit.

In the Aug. 6 consent judgment and order, U.S. District Judge Thomas Johnston cited Citizens United v. Federal Election Commission, where the court found independent expenditures including those made by corporations do not give rise to corruption or the appearance of corruption.

Secretary of State Natalie Tennant responded to the consent judgment and order in an Aug. 7 statement.

"Upon consultation with attorneys from the Secretary of State's office and attorney general's office, I have come to the conclusion that it is in the best interest of West Virginia taxpayers to cease contesting this lawsuit," Tennant said in the statement. "The lawsuit challenged the constitutionality of West Virginia's restriction on the amount that could be contributed by an individual or a corporation to a political action committee which solely makes independent expenditures. A temporary injunction has been in place since Aug. 9, 2012."

Tennant noted the state will be responsible for attorney fees plaintiffs have accumulated.

"The ruling follows the holding of the United States Supreme Court in ‘Citizens United' and is in line with other federal court rulings in the Fourth Circuit and other circuits. To continue to press what is an unwinnable position will do nothing but run up the tab for which the state will be responsibly and which will not result in the overturning of ‘Citizens United,'" Tennant said.

"The Supreme Court has ruled that unlimited contributions to independent committees do not corrupt our elections. I strongly disagree. However, it is still the law of the land," she added.