A campaign finance law passed during the legislative session closes a loophole that could have allowed PACs to skirt donor disclosure requirements, state elections officials say.
Meanwhile, West Virginia Secretary of State Mac Warner’s office is continuing its lawsuit against a group that continues to withhold the source of its funding for tens of thousands of dollars spent on electioneering efforts during 2018 legislative races.
Most the debate around Senate Bill 622 centered on its increase to fundraising caps on different kinds of political donations. However, officials with the Secretary of State’s Office say a simple change to the definition of a PAC (Political Action Committee) will block off an end-run around donor disclosure.
Current law defines a PAC as a committee formed “for the purpose of supporting or opposing” political candidates. Chuck Flannery, Warner’s chief of staff, said this wording could be interpreted to mean that electioneering must be an organization’s sole purpose to be a PAC, not one of several purposes.
SB 622 hones the definition of a PAC to a committee, “the primary purpose of which is to support or oppose” the nomination of political candidates.
Donald Kersey, general counsel for the secretary of state, said the specific meaning of ‘primary purpose’ will have to be hammered out in the legislative rule making process — one idea is 50 percent of the organization’s spending plus $1, though as much as not been finalized.
However it breaks, he said the idea is that groups seeking to influence elections won’t be able to point to other non-electioneering functions they perform, like education or grassroots politics, as a reason to shield the identities of their donors.
A conflict of interpretation on this definition played out during the 2018 elections and continues to do so in Wood County Circuit Court.
A group called Shale Energy Alliance spent more than $100,000 purchasing political ads. They all were aimed to support Republicans, although during the primary elections the group also spent thousands on ads targeting Delegate John Kelly, R-Wood. The group’s website states it advocates for natural gas development in the Appalachian Basin.
Where SEA’s money comes from is anyone’s guess. A lawyer representing the PAC and contacts listed on its filings did not respond to phone calls and emails.
In June, Warner filed a lawsuit against SEA alleging the group conducted electioneering activities in West Virginia without registering as a PAC or properly reporting the full scope of its funding or spending.
“What SEA is going to argue, we think, is that their sole purpose is not for supporting or electing or defeat of a candidate, they also do a lot of education,” Kersey said. “So under their read of the code, which is different than our read, they are not a PAC because they do education and things. Under the new law, if their primary purpose is to support the nomination or defeat of a candidate, then they would be a PAC, which means all those other disclosure laws apply and they can’t just file independent expenditure reports.”
Currently, SEA has independent expenditure reports filed with the state that show how much was spent on specific advertisements, who the targeted candidate is, and whether the ads are in support or opposition. The ads do not identify the source of the funds used.
The new law would not apply retroactively in the case, Kersey said, although it could be considered by a judge in a ruling. At the end of the day, he said the ads left candidates fending off attacks from unknown sources and the public should have a right to know who’s behind it.
“I want to see the right thing done,” he said. “Ultimately, we’re not here as a political organization, we’re the damn Secretary of State’s Office. Our job is to make sure people follow the law … They were hammering candidates and the candidates were basically defenseless. They didn’t know where the money was coming from, either.”