Responding to a request filed by Steptoe & Johnson on behalf of the Kentucky Chamber of Commerce, the Kentucky Registry of Election Finance has advised that the First Amendment protects independent expenditures to advocate the election or defeat of candidates for state office. The Commonwealth's prohibition on corporate spending for political speech cannot therefore be enforced with respect to independent expenditures for express advocacy benefiting state candidates, subsequent to the U.S. Supreme Court's ruling in
Citizens United v. FEC. The advisory opinion may be viewed at the Registry's
website.
Under Kentucky law, independent expenditures are those made in support of or opposition to a candidate without any coordination with a candidate or his/her campaign committee or representatives. Corporate contributions to campaigns, and communications coordinated between campaigns and independent advertisers, remain prohibited.
The Registry, which is the government agency tasked with overseeing state campaign finance laws, noted that the Chamber would be required to meet state disclaimer and disclosure requirements for each independent expenditure made from its general treasury. With respect to communications using funds separately solicited for independent expenditure purposes, it is the opinion of the Registry that the corporation would then be required to register as a political committee. In either circumstance, no contribution or expenditure limits would apply.
The Advisory Opinion specifically states that the for-profit and not-for-profit corporate members of the Kentucky Chamber of Commerce may make independent expenditures. The advisory opinion, however, protects only the parties in the specific activity covered by the request. Any parties intending to make independent expenditures in Kentucky elections are encouraged to seek the advice of counsel.
Meanwhile, West Virginia Governor Joe Manchin has approved H.B. 4647, which removes that state's ban on corporate funding for independent expenditures. However, the bill does not become effective until June 11, 2010, a month after the upcoming primary election, leaving the exact status of the law somewhat uncertain, even though Secretary of State Natalie Tennant supported the law as necessary following the
Citizens United decision.
Further, a lawsuit challenging West Virginia's reporting requirements for "electioneering communications" remains active in Federal court, creating additional uncertainty. Unlike Kentucky, there is no procedure in West Virginia for a person to obtain a binding advisory opinion to provide immunity against prosecution, so parties seeking to make independent expenditures or electioneering communications in West Virginia for the May primary are also encouraged to seek the advice of counsel.
Neither Kentucky nor West Virginia state law affects Federal elections, where it is clear that corporate funding of independent expenditures for Congressional candidates is legal.
George Carenbauer
Chase Tower - Eighth Floor
707 Virginia Street E.
Charleston, WV 25301
304.353.8130
george.carenbauer@steptoe-johnson.com
D. Eric Lycan
1010 Monarch Street
Suite 250
Lexington, Kentucky 40513
859.219.8213
eric.lycan@steptoe-johnson.com
Disclaimer