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 did not expressly advocate the defeat
of Oceguera under the applicable versions of Nevada's campaign practices
statutes, we reverse.
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[]" 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
2
against a candidate. See Fed. Election Comm'n v. Furgatch, 807 F.2d 857,
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, Div. 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).
Having reviewed the legislative history of NRS 294A.004(2)
(2009), it is unclear which interpretation of "advocate expressly" the 1997
Legislature intended to adopt. Weighing in favor of Citizen Outreach's
proposed interpretation, Furgatch was not mentioned by name in the
legislative history, whereas Buckley was. See Hearing on S.B. 215 Before
the Senate Government Affairs Comm., 69th Leg. (Nev., April 7, 1997), at
7-8. In addition, the majority of courts having decided the issue prior to
1997 held that a communication was not express advocacy without magic
words. See, e.g., Christian Action Network, 110 F.3d at 1050-51; Fed.
Election Comm'n v. Colo. Republican Fed. Campaign Comm., 59 F.3d
1015, 1023 n.10 (10th Cir. 1995), vacated on other grounds, 518 U.S. 604,
626 (1996); Faucher v. Fed. Election Comm'n, 928 F.2d 468, 470-71 (1st
Cir. 1991); Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 769 F.2d
13, 20 (1st Cir. 1985), affd, 479 U.S. 238 (1986); Cent. Long Island Tax
Reform Immediately Comm., 616 F.2d at 53. On the other hand,
legislative counsel was specifically asked to research the differences
between issue advocacy and express advocacy, Hearing on S.B. 215 Before
the Senate Government Affairs Comm., 69th Leg. (Nev., March 19, 1997),
at 11, and later reported that expenditures meant money spent for
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communications that either use magic words of advocacy or that, given the
context of the communication, communicate an unambiguous plea 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. The fact that legislative counsel was answering a specific question
suggests the Legislature intended to adopt the broader Furgatch
construction mentioned by legislative counsel. Nevertheless, the
Legislature did not discuss either the magic words or the contextual
approach in any depth. Thus, we cannot conclude from the legislative
history that the Legislature intended "advocate expressly" to include
communications that lack magic words.
We are also not persuaded that the 2011 enactment of a
statutory definition of "advocate expressly" unambiguously indicates the
1997 Legislature's intent. In 2011, the Legislature enacted NRS
294A.0025, which states that "[a]dvocates expressly" "means that a
communication, taken as a whole, is susceptible to no other reasonable
interpretation other than as an appeal to vote for or against a clearly
identified candidate." Therefore, since 2011, a communication need not
contain magic words to be express advocacy. NRS 294A.0025.
NRS 294A.0025 was passed in 2011 as part of Assembly Bill
81. 2011 Nev. Stat., ch. 501, § 36, at 3286. During discussion of A.B. 81,
the Secretary of State explained that adding a "definition of 'express
advocacy' will make it clear that Nevada does not require" magic words for
a communication to be express advocacy. Hearing on A.B. 81 Before the
Senate Legislative Operations & Elections Comm., 76th Leg. (Nev., May 5,
2011), at 5 (emphasis added). Although the Secretary of State
unambiguously saw NRS 294,603025 as clarifying rather than changing
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existing law, no member of the Legislature expressed this view. See
generally Hearing on A.B. 81 Before the Senate Legislative Operations &
Elections Comm., 76th Leg. (Nev., May 5, 2011). Thus, it is not clear
whether the 2011 Legislature believed NRS 294A.0025 would
substantially change or merely clarify existing law. See Pub. Emps.'
Benefits Program v. Las Vegas Metro. Police Dep't, 124 Nev. 138, 156-57,
179 P.3d 542, 554-55 (2008) ("[W]hen the Legislature substantially
amends a statute, it is ordinarily presumed that the Legislature intended
to change the law. Nevertheless, . . . when a statute's doubtful
interpretation is made clear through subsequent legislation, we may
consider the subsequent legislation persuasive evidence of what the
Legislature originally intended." (Internal quotation marks and footnotes
omitted.)).
The magic words test may be easy to avoid, see Furgatch, 807
F.2d at 863, but it is also a bright-line rule that is easy for potential
speakers to understand and for the State to enforce. See Iowa Right to
Life Comm., Inc. v. Williams, 187 F.3d 963, 969 (8th Cir. 1999) (stating
that Buckley adopted a bright-line rule "[t]o avoid uncertainty, and
therefore invalidation of a regulation of political speech"). Moreover, a
majority of courts in 1997 had adopted the magic words test—the Ninth
Circuit was the exception. See, e.g., Christian Action Network, 110 F.3d
at 1050-51. Therefore, the conclusion that NRS 294A.004(2) (2009) only
included as express advocacy communications containing magic words is
not unreasonable and will not lead to absurd results. 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 cause
absurd results).
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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
flyers. See State Farm Mut. Auto. Ins. Co.. 116 Nev. at 294, 995 P.2d at
485 (stating that this court considers legislative history when interpreting
an ambiguous statute). When it comes to the exercise of First Amendment
rights, any "tie goes to the speaker, not the censor." Fed. Election Comm 'n
v. Wis. Right to Life, Inc., 551 U.S. 449, 474 (2007). As a result, we
conclude that basic principles of fundamental fairness require us to
construe NRS 294A.004(2) (2009) narrowly, limiting it to only those
communications that contain magic words of express advocacy. See
Thomas v. Nev. Yellow Cab Corp., 130 Nev. , 327 P.3d 518, 521
(2014) (stating that this court construes statutes to comport with the
constitution when reasonably possible); Carrigan v. Comm'n on Ethics,
129 Nev. „ 313 P.3d 880, 884 (2013) (stating that due process
requires laws to provide fair notice of what conduct is prohibited).
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. 1
'We decline to address the other constitutional arguments made by
the parties as unnecessary to our disposition of this appeal. See Miller v.
Burk, 124 Nev. 579, 588 - 89, 188 P.3d 1112, 1118 - 19 (2008).
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Accordingly, we
ORDER the judgment of the district court REVERSED.
1,k
Hardesty
Parraguirre
Pickuti
Pickering
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
7
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 Furgatchl 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 v. 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[e]" 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 "[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
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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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