Summary judgment in CIF v. Tennant: three intriguing rulings

This case is a challenge to West Virginia’s campaign finance laws — mostly disclosure requirements — that has been up to the Fourth Circuit and back, with a few changes to state and federal law in the interim. On Monday, the district court issued a 92-page opinion on summary judgment.

The upshot: the court upholds much of the state’s law. But it strikes down three regulations of particular note. More after the jump.

The court first strikes a portion of the state’s definition of express advocacy, cribbed directly from Justice Robert’s opinion in WRTL II: “Expressly advocating” means any communication that . . . is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The court finds this language unconstitutionally vague without the additional distinct triggers of BCRA (e.g., mentioning a candidate to a certain audience within a certain time period before an election).

Second, the state’s inclusion of non-broadcast media in defining “electioneering communications” for disclosure purposes.

And third — probably most important — the court strikes down a disclosure requirement for significant contributors to an organization making electioneering communications, whether or not those contributions are earmarked for ads. The court essentially decides that only those who earmark can be required to disclose — following the FEC’s highly controversial federal regulation.

Interesting. And all likely candidates for appeal.

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