Center for Individual Freedom, Inc. v. Tennant, No. 11-1952 and 11-1993

Decided: January 18, 2013

Center for Individual Freedom (CFIF) and West Virginians for Life (WVFL), both organizations that engage in election-related speech, and a West Virginian resident, Zane Lawhorn, who wants to receive WVFL’s communications, brought suit against West Virginia’s secretary of state, members of the West Virginia State Election Commission, and a class of West Virginia’s prosecuting attorneys. The suit alleged that West Virginia’s campaign finance statutes were constitutionally impermissible. The district court struck down some provisions, but upheld others. On appeal, the court affirmed in part, reversed in part, and remanded for further proceedings.

The appellate court first considered WVFL and Lawhorn’s contention that the district court erred in concluding that W.Va. Code § 3-8-1a(12)(C), which defines “expressly advocating” as “any communication that . . . [i]s susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” is unconstitutionally vague. The court found that the holding in The Real Truth About Abortion, Inc. v. FEC—specifying that “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate—was controlling and thus held that subsection (C) of the statute was not unconstitutionally vague. The court also found that the subsection was not overbroad. As such, the court reversed the district court’s decision with respect to its conclusion that W.Va. Code § 3-8-1a(12)(C) is unconstitutional.

The court then considered CFIF’s contention that the district court erred in holding that the inclusion of periodicals in its definition of “electioneering communication” rendered the definition overbroad, and its decision to sever the statute’s reference to materials “published in any newspaper, magazine or other periodical.” The court agreed with CFIF’s argument, that even if the government could demonstrate a sufficiently important interest, the “legislature’s failure to empirically justify the statute’s application to periodicals renders it overbroad and prevents it from bearing a substantial relation to West Virginia’s stated interests.” As such, the court affirmed the district court’s decision to sever the statute’s reference to materials “published in any newspaper, magazine or other periodical.”

Next, the court addressed CFIF’s argument that the district court erred in its decisions regarding three exemptions to the “electioneering communication” definition. Specifically, the district court: (1) upheld the “grassroots lobbying” exemption, (2) declined to address the merits of CFIF’s challenge to the “bona fide news account” exemption, and (3) upheld a provision exempting communications by § 501(c)(3) organizations. The appellate court affirmed the district court’s decision to uphold the grassroots lobbying exemption and its decision to decline to consider the merits of CFIF’s challenge to the bone fide news account exemption, but reversed its decision with respect to its choice to uphold the § 501(c)(3) exemption.

The court then reviewed the district court’s conclusion that the reporting requirement for electioneering communications was ambiguous as written, and its decision to restrict the reporting requirement to “individuals who respond to a solicitation for electioneering communications or earmark their contributions for such use.” The court found that McConnell v. FEC controls and necessitates reversal of the lower court’s conclusion that the electioneering communication reporting requirement is unconstitutionally vague and its application of a limiting construction.

Finally, the court addressed WVFL and Lawhorn’s contention that the district court should have vacated two earlier injunctions as moot rather than barring prosecutions for violations that occurred when the injunctions were in effect. The appellate court found no abuse of discretion in the lower court’s decision to dissolve the injunctions at issue rather than vacate them as moot.

In summary, the appellate court affirmed the district court’s decisions to: (1) sever the statute’s reference to materials “published in any newspaper, magazine or other periodical,” (2) uphold the grassroots lobbying exemption, (3) decline to consider the merits of CFIF’s challenge to the bone fide news account exemption, and (4) prohibit prosecutions for violations that occurred while the earlier injunctions were in effect rather than vacating the injunctions as moot. The appellate court reversed the district court’s decision with respect to: (1) its conclusion that W.Va. Code § 3-8-1a(12)(C) is unconstitutionally vague, (2) its choice to uphold the § 501(c)(3) exemption, and (3) its conclusion that the electioneering communication reporting requirement is unconstitutionally vague such that a limiting construction must be applied.

Full Opinion

– Kassandra Moore

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