Miller's suit against AFP may have national ramifications

Secretary of State Ross Miller may yet cause a national sensation – and it has nothing to do with his voter ID law.

Miller’s court case against Americans for Prosperity, a gigantic national conservative group founded by the Koch Brothers, could pull back the curtain on the organization’s donors. AFP spent a reported $33 million during Campaign 2012, according to Open Secrets. But, by federal law, as a 501C entity AFP does not have to disclose its donors.

To the Federal Election Commission, that is. But Miller’s case against AFP, using its foolish meddling in a Democratic primary, is like a sheriff in the Old West: You come to my town, you play by my rules.

Miller, who acknowledges there is no national case law, basically argues in a lawsuit (attached here) that AFP cannot expressly advocate for or against a candidate and get away with not disclosing its donors under Nevada law. The local AFP chapter never registered as either a nonprofit or PAC, thuis exposing the national organization to Miller’s suit. It’s a case surely being monitored by DC experts and one with potentially wide ramifications for campaign disclosure, which Miller has long advocated.

For their part, the AFP folks have portrayed Miller as a partisan witch-hunter: “The Secretary of State has made it clear his ideology conflicts with that of AFP, and this is not the first time his position has been used to harass those with whom he disagrees,” AFP national said in a statement over the weekend. “The Attorney General’s office’s resources unfortunately are being misused to advance Secretary Miller’s partisan agenda.”

But speaking of hunts, this partisan dog line of attack won’t. Miller has gone after Republicans and conservatives (Citizen Outreach’s Chuck Muth is always after him for his actions ADDED CONTENT (12/4)>>because of a similar case), but the Democratic secretary of state also has filed against ACORN and fined the son of the Senate Majority leader $25,000 for a campaign finance scam, perhaps ending Rory Reid’s elective career.

So let’s try to look at the facts here instead of AFP's hyperventilating response.

AFP, with an aggressive young operative, Adam Stryker, on the ground here, was active in Nevada this cycle, including an anti-Shelley Berkley bus tour that garnered some coverage. But Stryker also meddled in a Democratic state Senate primary, capriciously taking on sure-winner Kelvin Atkinson, an assemblyman, with what he asserted were 10,000 phone calls and three mailers.

I asked Stryker at the time why he would waste so much money (besides the fact that he could!) and I got the sense he was test-running his operation for the general: “Kelvin Atkinson has been one of the worst legislators on economic issues for the state of Nevada,” Stryker told me before the primary. "We thought it important that as Kelvin continued to shop around for an opportunity to join the upper house of the Nevada state legislature, that the constituents he is seeking to represent have an accurate representation of Kelvin Atkinson and his recovery crushing policies.”

Atkinson won by just under 3-to-1 and is now a state senator. But it is those meaningless (in the campaign) mailers that Stryker told me about that now are freighted with meaning and form the basis of Miller’s complaint in an ongoing story that has been aggressively covered since the summer by Sun Political Editor Anjeanette Damon.

Last Friday, though, the story progressed from an inquiry letter and an attorney general’s review to a court complaint that could force AFP to open its donor books. Miller’s legal argument is that the three flyers constitute what is known as “express advocacy,” which is laid out in Nevada law:

NRS 294A.0025 “Advocates expressly” or “expressly advocates” defined. “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 or candidates or a question or group of questions on the ballot at a primary election, primary city election, general election, general city 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.

If you look at the flyers – they are attached as exhibits to the lawsuit – they end with a familiar refrain: “Call Assemblyman Atkinson…Tell him to represent Nevada working families.”

So, Stryker and national AFP attorneys argue, they are not expressly advocating for Atkinson's defeat and should not have to meet the requirements therein, which include registering with the secretary of state and, ultimately, disclosing donors. But it is clear that the group was trying to advocate for Atkinson’s defeat, just as it is clear on the national level when you see ads with phone numbers to call at the end.

But this is Nevada, not the FEC; express advocacy (i.e. those flyers) means you must disclose.

Maybe AFP should argue that it clearly wasn’t trying to defeat Atkinson because it was so obvious he could not lose. Call it the “We’re not idiots” defense.

The national folks wouldn’t give me their legal arguments, with spokesman Levi Russell saying they would stick to their prepared statement. Stryker told me: "As far as our incorporation status we are a foreign (foreign being not based in Nevada) non-profit with operations in the state. We have a 501c3 - Americans for Prosperity foundation and a 501c4 - Americans for Prosperity -- which we operate under. We are not a PAC and thus did not register as one. We undertake issue advocacy efforts.”

What’s doubly ironic here, though, is that if AFP had formed a local entity and registered it, and if the group had not quixotically meddled in a Democratic primary, none of this would be happening, thus putting the national AFP at risk. (That is, a simple filing listing a lot of money from AFP National. End of story.)

As one wag put it, “It's like War of the Worlds--it's the tiny microbes gonna bring them down.”

Maybe.

AFP has a team of lawyers and, as I said, there is no national case law. But that’s what makes this exciting and should worry the Koch Bros. and other AFP contributors: Sheriff Miller wants you to fess up, and this is his town.