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Lawmakers can’t use voters lists when sending letters, Ethics Commission rules

By Phil Kabler, Staff writer

Legislators may send letters to constituents prior to elections using the legislative franking privilege, so long as they don’t use targeted mailing lists of likely voters, the state Ethics Commission ruled Thursday.

Approving a twice-postponed advisory opinion, commissioners concluded it is not a violation of the Ethics Act for legislators to send non-political, informational letters to constituents at the Legislature’s expense -- with the proviso they not use targeted lists of likely voters within 60 days of an election.

Commissioner Betty Ireland said the Ethics Commission cannot restrict legislators’ ability to correspond with constituents, but said the use of likely voter lists clearly constitutes campaigning.

“That action cannot be realistically construed as anything but an attempt to influence voters,” she said. “It’s just out-and-out blatant that’s what you’re looking for.”

Ireland noted that Congress imposes a 90-day blackout on franking privileges for members prior to elections.

“If the federal government does that, and there’s not a lot that the federal government does now that appeals to me, I thought, that’s a good thing,” she said.

The advisory opinion does not prohibit legislators from franking constituent letters prior to elections, so long as they do not use targeted mailing lists. It also does not prohibit legislators from mailing letters to targeted lists of voters within 60 days of an election, so long as they personally pay for postage and production costs.

“This is a very narrow prohibition, but I think it is all we can do under the Ethics Act,” said Commissioner Mike Greer, who was in the Legislature in the 1970s and early 1980s.

Greer encouraged the House and Senate to adopt formal rules regarding legislators’ ability to frank constituent letters.

“Most legislators, if not all of them, want to follow the rules,” he said.

Commissioner Jack Buckalew, a former state senator, continued to advocate Thursday for an outright ban on legislative franking.

“I don’t think we should allow it at any time,” said Buckalew, who said letters to constituents are “obviously politically motivated.”

The advisory opinion states that franking is a “usual and customary practice” of the Legislature, and is considered a constituent service, so long as the content of the letters do not advocate for or against any political candidate, and do not contain any campaign slogans or themes.

However, it concludes that sending constituent letters to targeted lists of likely voters within 60 days of an election would be construed as an attempt to influence voters in hopes of winning the election, and therefore, would constitute use of public office for private gain.

The commission set the 60-day standard for the election season, to correspond with the Ethics Act’s prohibition on accepting Ethics complaints against candidates within 60 days prior to an election, a provision intended to discourage the filing of politically motivated complaints against election opponents.

Commission Chairman Bob Wolfe stressed that the advisory opinion is prospective, and cannot be applied retroactively.

In June, state Republican Party operative Rob Cornelius filed an Ethics complaint against Delegate Jeff Eldridge, D-Lincoln, alleging he was electioneering by mailing constituent letters to residents in his district prior to the May primary election.

Concurrently, Delegate Eric Householder, R-Berkeley, submitted the request for an advisory opinion, raising a series of questions on the propriety of constituent letters and the franking privilege.

Commissioner Terry Walker recused himself from consideration of the advisory opinion Thursday. At the commission’s July meeting, he inadvertently disclosed Householder’s name during discussions on the matter.

Names of requesters of advisory opinions are to be kept confidential, although commissioners frequently inadvertently disclose their identities during debate, either by name or by discussing specific details regarding the request.

The July meeting was the second time the commission postponed a vote on the advisory opinion. In June, commissioners postponed action on the opinion to give commission staff time to research any applicable state election laws and legislative rules that could provide guidance on the franking privilege.

Reach Phil Kabler at philk@wvgazette.com or 304-348-1220.


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