CARSON CITY, Nev. (CN) – A Nevada citizens advocacy group did not violate state law requiring disclosure of financial supporters, the Nevada Supreme Court ruled this month.
Unfortunately, a clerical error apparently made the dissenting opinion initially appear as the majority opinion when initially announced on Feb. 10. The court has since corrected the error.
The court, in fact, reversed a ruling by First Judicial District Judge James Wilson, who ruled Citizen Outreach violated state law when it distributed two flyers that criticized a candidate to the Nevada Assembly during the 2010 election.
The flyers were critical of state Assemblyman John Oceguera, who was seeking reelection. Because the flyers did not disclose contributors and expenditures, then-Nevada Secretary of State Ross Miller filed a complaint accusing Citizen Outreach of violating state campaign law.
Judge Wilson entered a summary judgment against Citizen Outreach and ordered it to pay fines and attorney’s fees, while enjoining it to disclose its contributors and expenditures. The decision prompted Citizen Outreach to appeal.
In reversing the lower court’s ruling, Chief Justice James Hardesty said Citizen Outreach admits it published the flyers without providing the disclosures, but said they did not “expressly advocate” Oceguera’s defeat.
Nevada law requires disclosures when contributors spent more than $100 to “advocate expressly the election or defeat of a clearly identified candidate,” Hardesty wrote.
But the law, which was enacted in 1997, did not clearly define the meaning of “advocate expressly,” he added.
In its appeal, Citizen Outreach argued the law limited the disclosure requirement to those instance when certain “magic words” of advocacy are used.
The so-called “magic words” test derives from a footnote to the Supreme Court’s 1976 Buckley decision upholding parts of the campaign finance law in place at the time. Unless ads says specifically “vote for, vote against” or something similar, the court said, they do not fall under the restrictions of the law.
In 2011, the Nevada legislature eliminated the “magic words” requirement for express advocacy from state law, but Hardesty said even that change failed to define exactly what “express advocacy” means.
“Perhaps the 1997 Legislature intended express advocacy to include more communications than those that contain magic words, but this intent was not clear … when Citizen Outreach distributed its flyers,” Hardesty wrote.
“Because it is undisputed that Citizen Outreach’s flyers do not contain magic words of express advocacy, the flyers were not subject to regulation under Nevada’s campaign practices statutes that were effective in 2010,” he said.
Five of seven justices agreed to reverse the lower court’s decision.
In a dissenting opinion, Justices Michael Douglas and Nancy Saitta said the magic words test should not be used.
Instead, they said the flyers expressed an “unambiguous command to vote for or against a clearly identified candidate,” which lawmakers defined as a form of express advocacy as far back as 1997.
In the flyers distributed in 2010, Citizen Outreach accused Oceguera of double-dipping by earning one salary as a firefighter, and another as an assemblyman. Despite these claims, Oceguera won his election. he was elected the speaker of the Assembly in 2011.
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