Score one for the well-funded, shadowy forces of anonymous political speech.
A judge ruled in Carson City on Oct. 17 that the group Americans for Prosperity was not required to register with the Nevada secretary of state’s office or file campaign contribution and expenditure paperwork, despite the fact that it targeted a state assemblyman with political fliers last year.
Americans for Prosperity — the group founded with generous support of the oil barons at Koch Industries — targeted then-Assemblyman Kelvin Atkinson, the North Las Vegas Democrat who was running for state Senate. A series of fliers paid for by AFP hit him for his co-sponsorship of Assembly Bill 416, a 2011 bill about renewable energy, which AFP contended would have increased electricity rates for North Las Vegas residents.
The fliers never mentioned any political opponents, and never urged a vote against Atkinson. But they did ask readers to call him and tell him the error of his ways. And that fact formed the basis of AFP’s defense: It argued that under federal standards, unless certain “magic words” such as “elect,” or “defeat” are used, the flier doesn’t invoke disclosure laws.
Secretary of State Ross Miller sued AFP, contending that there was no other way to interpret the fliers but as an attack on Atkinson and a call to reject him at the ballot box. It’s an argument that has been upheld in two other cases, including one filed against Citizen Outreach, which targeted then-Assemblyman John Oceguera in 2010 with very similar fliers that also omitted the magic words. In that case, a judge upheld Miller’s demand that Citizen Outreach register and file campaign paperwork, and issued a fine of nearly $18,000. That case is being appealed.
But this time, Senior District Judge Robert Estes didn’t see things Miller’s way.
“The legislature could have defined express advocacy as ‘any political activity or message supporting a candidate for office or disparaging another,’” Estes wrote in his ruling. But lawmakers didn’t. (Although the definition was revised by the 2013 Legislature to specify that magic words aren’t necessary to trigger disclosure requirements, it still doesn’t contain language as all-encompassing as what Estes suggested.)
“As noted above, these fliers were uncomplimentary to [then-]Assemblyman Atkinson,” the judge continued. “There can be little doubt that some citizens might have voted for someone else as a result of the mailers. Nonetheless, the communications from the beginning to the end focus on the energy bill AB 416 and end with an exhortation to call Mr. Atkinson and ‘represent Nevada working families.’ There is no mention of a political campaign, political party or political opponent.”
“In short, reasonable minds could absolutely decide that the fliers are anti-AB 416, special interests and lobbyists. There is no unmistakable, unambiguous, suggestive of only one plausible meaning message to affect the outcome of an election, i.e. defeat Mr. Atkinson or elect someone else,” the judge added. As a result, the fliers don’t meet the definition in law of express advocacy, and thus don’t trigger requirements for disclosure.
Miller said Tuesday he respects the court’s ruling and won’t appeal, while also noting that two other judges upheld his interpretation in very similar cases. The facts of each case are different, but the ruling won’t stop the state from enforcing the rules going forward, he said.
Ultimately, the Nevada Supreme Court will be asked to sort out exactly who must disclose and at what point under state law. But it seems essential for the Legislature to once again revise the law to encompass all electioneering communications designed to influence the public in any way, and attach a requirement to report donations and expenditures. With the U.S. Supreme Court expanding the rights of corporations to influence elections, and the increasing use of nonprofits that can legally shield donors, it’s more important than ever that the people know who’s trying to buy their votes, and why.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or firstname.lastname@example.org.