Outreach does not dispute that it published the flyers or that it did not
disclose its contributors and expenditures, and we are asked only to decide
whether the flyers were express advocacy under applicable Nevada law.
Because we conclude that the flyers expressly advocated the defeat of
Oceguera, we affirm.
In 2010, when Citizen Outreach distributed the flyers, an
organization that made an "expenditure" on behalf of a candidate was
required to disclose all contributors who gave the organization more than
$100, NRS 294A.140(1) (2007), and all expenditures over $100, NRS
294A.210(1) (2007). "[E]xpenditure[1" was defined as money spent "to
advocate expressly the election or defeat of a clearly identified candidate,"
NRS 294A.004(2) (2009) (emphasis added), but "advocate expressly" was
not defined by statute until 2011. 2011 Nev. Stat., ch. 501, § 36, at 3286;
see also NRS 294A.0025.
Citizen Outreach argues that the 1997 Legislature, which
enacted the essential language contained in NRS 294.004(2) (2009), 1997
Nev. Stat., ch. 118, § 17, at 238-39, intended to create a bright-line rule
limiting express advocacy to communications containing so-called magic
words of advocacy. These words may include "vote for,' elect,'
'support,' . . . 'vote against,' defeat; [or] 'reject." Buckley v. Valeo, 424
U.S. 1, 44 n.52 (1976); see also, e.g., Fed. Election Comm'n v. Christian
Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997); Fed. Election
Comm'n v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d
45, 52-53 (2d Cir. 1980). In contrast, the State argues that the Legislature
intended to include as express advocacy communications that lack magic
words but nevertheless unambiguously command readers to vote for or
against a candidate. See Fed. Election Comm'n v. Furgatch, 807 F.2d 857,
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864 (9th Cir. 1987); 11 C.F.R. § 100.22(b) (2011); see also 2011 Nev. Stat.,
ch. 501, § 36, at 3286 (adopting this broader definition of express
advocacy). Both of these interpretations are plausible, thus we turn to the
legislative history for guidance. See State, Diu. of Ins. v. State Farm Mut.
Auto. Ins. Co., 116 Nev. 290, 294, 995 P.2d 482, 485 (2000) (stating that
this court will turn to legislative history when interpreting an ambiguous
statute).
When the 1997 Legislature was discussing the definition of
" expenditures " at issue here, legislative counsel was specifically asked to
research the difference between issue advocacy and express advocacy
under then-existing law. Hearing on S.B. 215 Before the Senate
Government Affairs Comm., 69th Leg. (Nev., March 19, 1997), at 11. At a
later committee session, legislative counsel explained that expenditures
meant money spent for communications that either use magic words of
advocacy or that, given the context of the communication, communicate an
unambiguous command to vote for or against a clearly identified
candidate. Hearing on S.B. 215 Before the Senate Government Affairs
Comm., 69th Leg. (Nev., April 7, 1997), at 8. Although Furgatch was not
mentioned by name, it is apparent that legislative counsel was referring to
Furgatch and its contextual understanding of express advocacy. See id.
Citizen Outreach argues that the Legislature intended to adopt the magic
words test because Buckley, unlike Furgatch, was mentioned by name
throughout the legislative history. See id. at 7. The legislative history
reflects, however, that the only people to name Buckley while advocating
for the magic words test were lobbyists or members of the public. See
Hearing on S.B. 215 Before the Senate Government Affairs Comm., 69th
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Leg. (Nev., Mar. 19, 1997), at 1-2, 5, 7, 9-10. Therefore, these comments
do not necessarily reflect the Legislature's intent.
Moreover, the narrow magic words test would"eviscerat[e]"
Nevada's disclosure requirements because a speaker could 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." Furgatch, 807 F.2d at 863. We cannot conclude that
the Legislature intended to enact this extensive legislation to achieve such
little practical purpose. See D.R. Horton, Inc. v. Eighth Judicial Dist.
Court, 123 Nev. 468, 477, 168 P.3d 731, 738 (2007) (stating that this court
avoids interpretations of statutes that render language meaningless or
produce absurd results). Therefore, we conclude that the Legislature must
have intended to adopt the broader, contextual definition of "advocate
expressly" discussed in Furgatch rather than the narrower magic words
test adopted by other courts. We now turn to Furgatch and the flyers at
issue here.
Under Furgatch, a communication advocates expressly if (1)
the "message is unmistakable and unambiguous," (2) the communication
"presents a clear plea for action," and (3) it is "clear what action is
advocated," such that a reasonable person could only understand that
voting for or against a particular candidate was being advocated.
Furgatch, 807 F.2d at 864. We conclude that both of Citizen Outreach's
flyers were express advocacy under Furgatch's three-part test. The first
flyer described Oceguera as "Getting Fat off the Taxpayers" by earning
one salary as a firefighter and one as an assemblyman, "voting for tax
hikes," and "sponsoring trivial legislation." The flyer concluded "[w]e don't
need any more fiddling from John Oceguera." The second flyer bore
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similar criticisms, accused Oceguera of "gam[ing] the system to retire at
age 48," and commanded voters to "tell John Oceguera that he needs to
work like the rest of us!" The only way that a voter could stop Oceguera's
"fiddling" or "tell" him "to work like the rest of us" was by voting against
Oceguera. Thus, these flyers communicate a clear and unambiguous plea
to vote against Oceguera and are express advocacy under Furgatch and
NRS 294A.004(2) (2009).
The Arizona Court of Appeals recently addressed a television
advertisement that commanded viewers to "[t]ell [the candidate] to protect
children, not people who harm them," and provided the candidate's office
telephone number. See Comm. for Justice & Fairness v. Ariz. Sec'y of
State's Office, 332 P.3d 94, 96 (Ariz. Ct. App. 2014) (first alteration in
original) (internal quotation marks omitted). Because Arizona law
contemplated a contextual understanding of express advocacy similar to
the Furgatch test, the court concluded that the advertisement was express
advocacy subject to regulation. Id. at 100, 102. Similar to the flyers here,
the advertisement in Committee for Justice and Fairness instructed
viewers to "[t]ell" the candidate to change his behavior. Id. at 96. But the
advertisement gave viewers a way to tell the candidate by providing the
candidate's telephone number, id., whereas the flyers in this case provided
no such alternative method. Thus, the message of Citizen Outreach's
flyers was an even clearer plea to vote against Oceguera than the message
in Committee for Justice and Fairness.
We also reject Citizen Outreach's arguments that the First
Amendment mandates additional limitations on disclosure requirements
not imposed by NRS Chapter 294A. Contrary to Citizen Outreach's
assertions, the First Amendment does not mandate that disclosure
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requirements be limited to (1) communications using magic words,
McConnell v. Federal Election Commission, 540 U.S. 93, 192-94 (2003),
overruled on other grounds by Citizens United v. Federal Election
Commission, 558 U.S. 310, 365-66 (2010); (2) contributions earmarked for
political purposes by the donors, Center for Individual Freedom, Inc. v.
Tennant, 706 F.3d 270, 292 (4th Cir. 2013); or (3) entities that have
political advocacy as a major or primary purpose. See Human Life of
Wash., Inc. v. Brumsickle, 624 F.3d 990, 1009-10 (9th Cir. 2010). 1
The district court therefore properly granted summary
judgment in favor of the State.
1 Citizen Outreach also argued for the first time in its reply brief that
even if none of these additional limitations were constitutionally
mandated, NRS 294A.004(2) (2009) nevertheless cannot survive exacting
scrutiny. Because Citizen Outreach did not make this argument until its
reply brief, we decline to address it. See Edelstein v. Bank of New York
Mellon, 128 Nev. , n.13, 286 P.3d 249, 261 n.13 (2012) (stating that
this court need not consider arguments raised for the first time in reply
briefs); see also NRAP 28(c) (stating that a reply brief "must be limited to
answering any new matter set forth in the opposing brief').
To the extent that Citizen Outreach argues that Nevada's disclosure
requirements violate the First Amendment as applied to Citizen Outreach,
we summarily reject this argument due to Citizen Outreach's failure to
put forth any evidence below to support it. Cf. Bates v. City of Little Rock,
361 U.S. 516, 524, 527 (1960) (holding that ordinances mandating
disclosure of organizations' membership lists violated the First
Amendment as applied where "substantial uncontroverted evidence"
indicated that people identified as members of the organizations were
harassed and threatened, and fear of community hostility resulting from
disclosure caused reductions in membership).
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Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/ , C.J.
Hardesty
J.
Parraguirre
Gibbons
cc: Hon. James E. Wilson, District Judge
David Wasick, Settlement Judge
Center for Competitive Politics
Mueller Hinds & Associates
Attorney General/Carson City
Carson City Clerk
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O 1047A e
CITIZEN OUTREACH VS. STATE No. 63784
DOUGLAS, J., with whom SAITTA, J., agrees, dissenting:
As to the campaign practices in Nevada, the magic word test
should not be required, so as to allow for the transparency in disclosure of
contributions and expenditures spent advocating expressly the election or
defeat of a clearly identified candidate.
When the 1997 Legislature was discussing the definition of
"expenditures" at issue here, legislative counsel was specifically asked to
research the difference between issue advocacy and express advocacy
under then-existing law. Hearing on S.B. 215 Before the Senate
Government Affairs Comm., 69th Leg. (Nev., March 19, 1997), at 11. At a
later committee session, legislative counsel explained that expenditures
meant money spent for communications that either use magic words of
advocacy or that, given the context of the communication, communicate an
unambiguous command to vote for or against a clearly identified
candidate. Hearing on S.B. 215 Before the Senate Government Affairs
Comm., 69th Leg. (Nev., April 7, 1997), at 8.
I would note Furgatch," was not mentioned by name, but it is
apparent that legislative counsel was referring to Furgatch and its
contextual understanding of express advocacy. See Hearing on S.B. 215
Before the Senate Government Affairs Comm., 69th Leg. (Nev., April 7,
1997), at 8. Citizen Outreach argues that the Legislature intended to
'Fed. Election Comm'n ix Furgatch, 807 F.2d 857 (9th Cir. 1987).
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adopt the magic words test because Buckley, 2 unlike Furgatch, was
mentioned by name throughout the legislative history. That legislative
history reflects, however, that the only people to name Buckley while
advocating for the magic words test were lobbyists or members of the
public. See Hearing on S.B. 215 Before the Senate Government Affairs
Comm, 69th Leg. (Nev., March 19, 1997), at 1-2, 5, 7, 9-10. Therefore
these comments do not necessarily reflect the Legislature's intent.
Moreover, the narrow magic words test as allowed by the
majority will "eviscerate[er 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." Furgatch, 807 F.2d at 863.
Thus, I cannot conclude that the Legislature intended to enact this
extensive legislation to achieve such little practical purpose. See D.R.
Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468, 477, 168 P.3d
731, 738 (2007) (stating that this court avoids interpretations of statutes
that render language meaningless or produce absurd results). I submit
that the Legislature must have intended to adopt the broader, contextual
definition of "advocate expressly" discussed in Furgatch rather than the
narrower magic words test adopted by other courts.
As to the flyers at issue here, under Furgatch a
communication advocates expressly if (1) the "message is unmistakable
and unambiguous," (2) the communication "presents a clear plea for
action," and (3) it is "clear what action is advocated," such that a
reasonable person could only understand that voting for or against a
2 Buckley v. Valeo, 424 U.S. 1 (1976).
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particular candidate was being advocated. Furgatch, 807 F.2d at 864. I
submit that both of Citizen Outreach's flyers were express advocacy under
Furgatch's three-part test. The first flyer described Oceguera as "Getting
Fat off the Taxpayers" by earning one salary as a firefighter and one as an
assemblyman, "voting for tax hikes," and "sponsoring trivial legislation."
The flyer concluded "[w]e don't need any more fiddling from John
Oceguera." The second flyer bore similar criticisms, accused Oceguera of
CC
gam[ing] the system to retire at age 48," and commanded voters to "tell
John Oceguera that he needs to work like the rest of us!" The only way
that a voter could stop Oceguera's "fiddling" or "tell" him "to work like the
rest of us" was by voting against Oceguera. Thus, these flyers
communicate a clear and unambiguous plea to vote against Oceguera and
are express advocacy under Furgatch and NRS 294A.004(2) (2009).
The Arizona Court of Appeals recently addressed a television
advertisement that commanded viewers to "[t]ell [the candidate] to protect
children, not people who harm them," and provided the candidate's office
telephone number. See Comm. for Justice & Fairness v. Ariz. Sec'y of
State's Office, 332 P.3d 94, 96 (Ariz. Ct. App. 2014) (first alteration in
original) (internal quotation marks omitted). Because Arizona law
contemplated a contextual understanding of express advocacy similar to
the Furgatch test, the court concluded that the advertisement was express
advocacy subject to regulation. Id. at 100, 102. Similar to the flyers here,
the advertisement in Committee for Justice and Fairness instructed
viewers to "Nell" the candidate to change his behavior. Id. at 96. But the
advertisement gave viewers a way to tell the candidate by providing the
candidate's telephone number, id., whereas the flyers in this case provided
no such alternative method. Thus, the message of Citizen Outreach's
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flyers was an even clearer plea to vote against Oceguera than the message
in Committee for Justice and Fairness.
Unlike the majority, I would reject Citizen Outreach's
arguments that the First Amendment mandates additional limitations on
disclosure requirements not imposed by NRS Chapter 294A. Contrary to
Citizen Outreach's assertions, the First Amendment does not mandate
that disclosure requirements be limited to (1) communications using magic
words, McConnell v. Federal Election Commission, 540 U.S. 93, 192-94
(2003), overruled on other grounds by Citizens United v. Federal Election
Commission, 558 U.S. 310, 365-66 (2010); (2) contributions earmarked for
political purposes by the donors, Center for Individual Freedom, Inc. v.
Tennant, 706 F.3d 270, 292 (4th Cir. 2013); or (3) entities that have
political advocacy as a major or primary purpose. See Human Life of
Wash., Inc. v. Brumsickle, 624 F.3d 990, 1009-10 (9th Cir. 2010).
Simply put, the District Court got it right; magic words are not
required as to express advocacy communications, and disclosure of
contributions and expense over $100 by groups should be required.
J.
Saitta
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