Judge withdraws freeze on W.Va. election ad rules

CHARLESTON, W.Va.—A federal judge has rescinded a ruling that blocked West Virginia from requiring third parties to report what they spent on non-broadcast political ads.

U.S. District Judge David Faber noted in an order Monday that recent legislation will soon replace the provisions he found unconstitutionally vague in a ruling last April.

But Monday's order also withholds judgment on the legislation.

"The court does not suggest that the newly enacted statutes pass constitutional muster," Faber wrote. He added that "any decision as to their constitutionality must begin anew."

Faber noted that the lawsuit challenging disclosure remains pending, and the group that filed it can seek a new ruling to replace the injunction he issued in April.

The Center for Individual Freedom sued to prevent disclosure of spending and donors behind ads it planned for the state Supreme Court and other races. The Virginia-based group is disappointed that Faber dissolved his April order, lawyer Tom Kirby said.

"We respectfully disagree with the ruling," Kirby said. "We are assessing our options."

The new rules take effect Wednesday, and require independent groups and individuals to report spending on ads that refer to a clearly defined candidate during election time.

The withdrawn ruling had blocked such disclosure for non-broadcast ads. The new rules cover most other ad formats except leaflets, fliers and non-billboard outdoor ads. Separate reporting rules govern ads by candidates and political action or party committees.

As West Virginia's chief elections officer, Secretary of State Betty Ireland asked Faber to vacate the April ruling in light of the new legislation. Her office was joined by West Virginia's county prosecutors, who had also been sued, and by the state AFL-CIO, the West Virginia Education Association and three Democratic Supreme Court candidates.

Gov. Joe Manchin included the legislative fix in a June special session. It passed after pointed debate and party-line votes that extended the session by several days. Republicans, who had helped pass the 2005 law almost unanimously, fought the new measure. They argued that such disclosure rules benefit the majority Democrats.

To remedy Faber's vagueness concerns, the new provisions seek to define what kind of advocacy triggers disclosure. Besides words that "can have no other reasonable meaning than to urge the election or defeat," it also applies to ads that when taken in the whole "can only be interpreted by a reasonable person as advocating the election or defeat of one or more clearly identified candidates."

Opposing withdrawal of the April ruling, the Center for Individual Freedom had asked Faber instead to apply it to the recently passed provisions. He refused. Ireland predicted that to do so would result in "an absolute 'free-for-all' of campaign advertising for the November election."

The center had run ads in the Supreme Court races' primary phase in formats covered by the ruling. It has since launched ads targeting state Attorney General Darrell McGraw, who has responded by filing complaints with Ireland's office and the stations that have aired them.