West Virginia Cleans Up Campaign Laws, Provides Roadmap for Other States

April 5, 2023 | Luke Wachob

When states regulate political speech and lobbying, their first and most important duty is to avoid infringing on the First Amendment. After all, Americans enjoy strong constitutional protections for their rights to speak about political issues, petition the government and their peers, and join together with fellow citizens in support of a cause. Laws regulating campaign finance or grassroots lobbying touch directly on these fundamental freedoms and must be carefully drafted to avoid violating them.

One step legislators should consider is a review of their state’s laws in these areas. Statutes that are unclear, outdated, inconsistent, or which contain errors should be rectified or removed. This is particularly important in the wake of the U.S. Supreme Court’s 2021 ruling in Americans for Prosperity Foundation (AFPF) v. Bonta, which clarified and reinforced the First Amendment rights of Americans to support nonprofit causes privately. Many states have laws that are likely unconstitutional after AFPF because they put the privacy of nonprofit donors at risk.

On March 29, West Virginia completed a review of its laws when Governor Jim Justice signed S.B. 508 and S.B. 516 into law. Not to be outdone, two companion bills were introduced in the House as well, H.B. 3062 and H.B. 3063. The two Senate bills – dealing with the state’s grassroots lobbying and campaign finance laws, respectively – bring the state into compliance with AFPF and improve safeguards for donor privacy through simple clarifications and updates to existing statutes. As a result, the Mountain State is now one of the friendliest in the nation towards citizens’ right to privately support nonprofits.

West Virginia had already taken significant strides in this area in 2020, when it became one of the first states to offer proactive protections for donor privacy under “The Protect Our Right to Unite Act.” Just a few years later, over a dozen states have followed suit with similar laws, driven in large part by the AFPF ruling. Now, West Virginia is once again taking the lead in exploring new avenues to protect Americans’ First Amendment rights.

A review of West Virginia’s grassroots lobbying and campaign finance laws turned up several areas for improvement that were addressed through S.B. 508 and S.B. 516. One technical error in state law had inadvertently classified all membership organizations as political committees, when the Legislature only intended to regulate political committees formed by membership organizations. S.B. 516 corrects this error by applying the existing definition for membership organization PACs from the West Virginia Secretary of State – the very office charged with enforcing West Virginia’s campaign finance laws.

Other parts of the law were not as clear as they could have been, a notorious problem in campaign finance and lobbying regulations. Unclear laws obstruct citizens’ ability to understand and exercise their rights. They also slant the playing field in favor of large organizations with the resources and wherewithal to retain expert (and costly) attorneys to guide them in situations where the letter of the law is unclear. At their worst, vague laws can serve as cudgels to punish groups that challenge government officials or criticize the status quo.

S.B. 508 and S.B. 516 add language to clarify donor disclosure requirements and ensure that only those who give “for the purpose of furthering” a grassroots lobbying campaign or electioneering communication are publicly reported. Outside of these narrow circumstances, West Virginians have the right to support a nonprofit’s general activities without having their views exposed to state officials, potential employers, and their neighbors, not to mention political activists and partisan media outlets. Privacy is an important shield that ensures all Americans – regardless of their beliefs – are free to support the causes of their choice without harassment or intimidation.

Inflation is yet another reason states must stay on top of their laws requiring donor disclosure. Prior to the passage of S.B. 508 and S.B. 516, West Virginia had not adjusted many of its thresholds for public exposure of a donation since 1989. At that time, the Legislature required groups to publicly report donors starting at $250, including their name, address, occupation, and employer. That requirement remained even as time dramatically shrunk the value of $250. Today, it goes about as far as $100 did in 1989.

By failing to update the law or provide for automatic adjustments, the state allowed its citizens’ privacy rights to erode a little more each year. S.B. 508 and S.B. 516 fix this problem by raising the law’s reporting thresholds to $1,000 across the board to protect small donors from unnecessary public disclosures. That means fewer West Virginians will be at risk of retaliation for their giving.

Low thresholds for donor disclosure in campaign finance laws also pose another, less obvious threat: they are regularly cited by anti-privacy activists and politicians as a justification for forcing nonprofits and other groups to publicly expose their membership lists. Let that be a stark reminder that when privacy is degraded in one area of the law, it soon becomes vulnerable in others.

West Virginia’s reforms are an inspiring, if all-too-rare, story of state leaders checking their predecessors’ work, anticipating future problems, and passing proactive protections for citizens’ First Amendment rights. People United for Privacy commends Governor Justice, Senate and House leadership, and the West Virginia nonprofit community for coming together in support of these commonsense reforms. A special thank you is owed to Senators Mike Azinger, Charles Trump, and Ryan Weld and Delegate Daniel Linville for sponsoring these bills. Because of their leadership, West Virginians’ First Amendment rights just got stronger.

States across the nation should join West Virginia in reviewing their campaign finance and grassroots lobbying statutes to ensure they are compliant with the First Amendment and the Supreme Court’s AFPF ruling. Periodic reviews help ensure that a state’s body of law is clear, consistent, and constitutional. That’s something every state should not only aspire to, but demand.