Magic words dispute off to Supreme Court

It all comes down to magic words.

Whether a political group has to disclose its donors and spending depends on whether that group engages in what’s called “express advocacy,” which is to say, urging voters to elect or reject a particular candidate. Fliers and TV ads that say “vote for,” “vote against,” “elect” or the like generally trigger the disclosure requirement.

But a lawsuit filed by the state of Nevada against the conservative group Citizen Outreach shows disclosure might be required even if the so-called magic words aren’t used.

At issue are a pair of fliers targeting former Assembly Speaker John Oceguera during his 2010 re-election. Citizen Outreach, headed by conservative activist Chuck Muth, said Oceguera retired at a young age with a hefty pension at taxpayer expense, and hit him for “…sponsoring trivial bills, voting for tax hikes and enriching himself as a public employee.”

“It’s time to tell John Oceguera that he needs to work like the rest of us,” the first flier declares.

“We don’t need any more fiddling from John Oceguera,” reads the second.

Nowhere do the fliers tell anyone to vote against Oceguera, but it’s hard to argue any other interpretation. And that’s why Carson City District Court Judge James Wilson concluded they constitute express advocacy, even without magic words, and thus disclosure is required. (He also fined the group nearly $18,000.)

“In Nevada, express advocacy extends beyond just (a previous U.S. Supreme Court ruling’s) magic words,” Wilson wrote. “It includes all communications that, with limited reference and context, can have no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate.”

The only way voters can tell Oceguera to “work like the rest of us” is to un-elect him, Wilson concluded. And how else could voters interpret the attack on his character, legislative record and fitness for office? “The only way of ending the ‘fiddling’ is to vote Mr. Oceguera out of office,” Wilson’s wrote.

But Muth contends the issue is less clear than the state contends.

First, he says, there was no definition of “express advocacy” in state law until 2011, the year after his fliers were mailed. Second, most courts have imposed the “magic words” test, and the fliers contained none of those words. Third, he asks if the state could apply the disclosure requirement to independent political bloggers or others. Fourth, he says disclosure would chill both free speech rights and fundraising. He’s vowed to appeal the case to the Nevada Supreme Court.

“To us, it is a free speech issue,” Muth says. “I think we should be able to tell voters information about their elected officials’ records so that voters can make an informed decision.”

Of course they should — no one is arguing that. What’s at issue is whether they should be required to disclose the donors who underwrote such “education” — especially when even shorn of magic words, the fliers in question clearly targeted Oceguera for defeat.

In support, the state points to a 1987 Ninth Circuit court ruling — and a follow-on Federal Election Commission regulation — that say as much. (Neither is controlling in this case, however, since it’s about a state election conducted under state laws.)

Moreover, the state noted in court that during the debate over a 1997 bill, lawmakers heard a legislative lawyer say that, even without the magic words, the state would make a determination about whether disclosure was required in the context of an entire flier. So the state’s interpretation wasn’t entirely novel, even if a definition of express advocacy wasn’t added until 2011.

Wilson granted the state’s motion for summary judgment without a trial, a sign he saw the case as open and shut. With the law safely amended, the issue may never surface again. But the state Supreme Court will have to tell us whether magic words were required in 2010, or whether Citizen Outreach will hear another set of magic words: “pay up.”

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.