No magic words, no problem!
Frankly, I liked it better the first time.
The Nevada Supreme Court apparently upheld, but then later overturned, a ruling in the case of a conservative group that mailed out fliers but refused to say who paid for them, claiming the law contained no such explicit requirement. Since the rules have subsequently been amended to be unambiguously clear, it’s somewhat moot.
The court cited a “clerical error” for the rare mistake, although it’s tough to see how that could have happened.
A little background: Back in 2010, the group Citizen Outreach (headed by activist Chuck Muth) sent out some mailers targeting then-Assemblyman John Oceguera. While they slammed him for his work habits, for introducing “trivial” bills and for voting for tax increases, they didn’t tell anybody to vote against him or elect another person in his stead.
That’s important because the law at the time said electioneering communications that advocate expressly for the election or defeat of a candidate are subject to disclosure laws. Secretary of State Ross Miller insisted Citizen Outreach file the paperwork, contending that there could be no other interpretation than that Citizen Outreach wanted people to vote against Oceguera. But the group maintained that because it had not used the “magic words” identified in the seminal Buckley v. Valeo case (“vote for,” “vote against” “support,” “defeat,” etc.) the flier wasn’t subject to disclosure.
The majority — comprised of Chief Justice James Hardesty and Justices Ron Parraguirre, Michael Cherry, Mark Gibbons and Kristina Pickering — agreed. “Nevertheless, the Legislature did not discuss [in 1997, when the law was originally written] either the magic words or the contextual approach in any depth,” the majority wrote. “Thus, we cannot conclude from the legislative history that the Legislature intended ‘advocate expressly’ to include communications that lack magic words.”
In 2011, however, the law was amended to say that either fliers with magic words or those without such words but that nonetheless are subject to no other reasonable interpretation but that they are expressly advocating the election or defeat of a candidate are subject to disclosure. And while the state argued that amendment established the 1997’s Legislature’s intent to include fliers with both magic words and those without, the court determined that at best, the issue wasn’t clear.
“Perhaps the 1997 Legislature intended express advocacy to include more communications than those that contain magic words, but this intent was not clear — from either the language of NRS 294A.004(2) (2009) or its legislative history — when Citizen Outreach distributed its fliers,” the majority wrote.
Personally, I think the dissent — signed by Justices Nancy Saitta and Michael Douglas — is more persuasive. After all, “…the narrow magic words test as allowed by the majority will ‘eviscerate’ Nevada’s disclosure requirements because a speaker can easily skirt these requirements simply ‘by avoiding certain key words while conveying a message that is unmistakably directed to the election or defeat of a named candidate. … Thus, I cannot conclude that the Legislature intended to enact this extensive legislation to achieve such little practical purpose.”
Exactly. If I were to say that a particular elected official was a feckless, self-serving weasel who would take any opportunity to advance his miserable affliction upon the body politic without a second thought as to the public interest, I hardly need to say we should vote against such a person, right? Who doesn’t get the message without it having to be made explicit?
That is the law now, so Citizen Outreach cannot repeat its sly, stealthy behavior in 2015. But as for the 2010 fliers that targeted Oceguera? The court’s doctrine for them can be summed thus: No magic words, no problem.
Read the ruling for yourself, below:
