Citizen Outreach, the conservative group that paid for fliers attacking then-Assembly Speaker John Oceguera in 2010, has filed its appeal to a District Court ruling that said the group must disclose its donors and spending under Nevada law.
The appeal in Citizen Outreach v. State of Nevada contends Secretary of State Ross Miller and District Court Judge James Wilson erred by trying to force the group to disclose donors when its fliers did not “expressly advocate” for Oceguera’s defeat. Citizen Outreach attorney Craig Mueller also contends the state has misapplied a single appellate court ruling and tried to apply laws that weren’t enacted until after the group’s fliers had already been mailed.
Best of all? The group compares itself to the NAACP, which also resisted disclosing its donors during the Civil Rights era. Because when I think of Citizen Outreach President Chuck Muth, I think immediately of Dr. Martin Luther King, Jr.
You can read the appeal for yourself here: CitizenOutreachvNevada–openingbrief.
Essentially, Citizen Outreach argues it shouldn’t have to disclose its donors because:
- The fliers, while certainly not complimentary, did not contain the so-called “magic words” that the U.S. Supreme Court identified as constituting “express advocacy,” words such as “elect,” “defeat,” “vote for,” “vote against” “support,” or similar words and phrases. As a result, the fliers can’t be considered express advocacy and the disclosure requirement isn’t implicated.
- The “major purpose” of Citizen Outreach is not to make campaign-related expenditures, and as a result, even if disclosure is required, it can only be required of people who specifically earmarked their donations for the Oceguera fliers.
- A 1987 Ninth Circuit Court of Appeals decision — FEC v. Fergatch – which held that “magic words” aren’t necessary if a message “when read as a whole, and with limited reference to external events, be susceptible to not other reasonable interpretation but as an exhortation to vote for or against a specific candidate,” is misapplied in this case. Citizen Outreach says even under that ruling, an unmistakable exhortation to take action to defeat or support a candidate is still required.
- The state has subsequently amended the law to specify that “magic words” are not required. NRS 294A.0025 now reads: “‘Advocates expressly’ or ‘expressly advocates’ 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 or group of candidates or a question or group of questions on the ballot at a primary election, general election or special election. A communication does not have to include the words ‘vote for,’ ‘vote against,’ ‘elect,’ ‘support’ or other similar language to be considered a communication that expressly advocates the passage or defeat of a candidate or a question.” But that language was not in the lawbooks in 2010.
- A flier decrying Oceguera’s legislative work could be interpreted as a call for him to introduce better bills, not toss him from office, the group contends. A second one decrying his dual employment as state lawmaker and a North Las Vegas Fire Department official could be interpreted as a call for him to resign his fire job, not remove him from political office. As such, the statements can’t be considered “express advocacy” against him.
The state has contended — and the District Court agreed — that there could be no other reasonable interpretation of the fliers than to vote against Oceguera, who nonetheless won his 2010 election (with 55 percent of the vote). As a result, it demanded Citizen Outreach file its campaign paperwork.
The attorney general on behalf of Miller’s office will file a response to the Citizen Outreach brief, after which oral arguments may be scheduled before the state Supreme Court issues a ruling.