Judge's ruling allows dark money to stay secret, undermines transparency imperative

The argument is stunning in its simplicity and perniciousness: Voters should be deprived of certain information when making decisions on campaigns.

I’m not talking about a candidate’s sex life or his or her high school transcripts. I refer to who is funding political propaganda brandished in campaigns through the panoply of media available today – the mail, television, the web.

If you think that voters don’t need to know the source of political attacks, then you are right in line with groups such as Americans for Prosperity and Citizen Outreach, which do not want to reveal their donors. Whether or not they are taking advantage of a loophole in the law – and a judge last month, in a decision first reported this week by the Review-Journal's Steve Sebelius, found that AFP legally kept its donors hidden – is secondary to the obvious imperative to give voters all of the information they need as fast as it can be disseminated.

In a world dramatically different than anything the Founding Fathers could have imagined, where McCain-Feingold loopholes were replaced by 527 loopholes only to be replaced by Citizens United loopholes, voters justifiably are confused when they see ads that tell them to call an elected official and tell him or her to do something.

Regardless of the law – and I have no doubt the Gang of 63 needs to tighten it up despite Secretary of State Ross Miller’s admirable efforts to make Nevada law better than the federal statutes – transparency in campaign financing is paramount, much more important than limits and more pressing than any right to privacy for the funders.

This is the central issue in the case Judge Robert Estes decided Oct. 17 (the order is attached here) and said AFP-Nevada does not have to disclose its donors. (I think the decision is wrong, but that is moot.)

I previously wrote about this case last year, and it is slightly different than other pending actions in that the group’s failure to register locally theoretically opened the national organization to disclosure, thus creating another issue.

But AFP and others are employing the same fig leaf of “educating voters” to cover an obvious attempt to hurt a candidate in his or her election, which Miller believes should be disclosed, state lawmakers should mandate and common sense dictates.

I have heard the counterarguments, especially from the Nevada Policy Research Institute that AFP et. al. are akin to John Peter Zenger -- start rolling over in your graves now, Jefferson and Madison -- and that the principle behind anonymous speech must be preserved, that it has not atrophied with time.

But this is unsustainable. First, there are no absolute rights. The First Amendment, the Second Amendment have exceptions. But, more importantly, this is not about revolutionary rabble-rousers militating against the crown; this is a multimedia world where voters are bombarded with information and must know, need to know the source.

This only applies to groups, to use the term in the law, expressly advocating for a result in an election. If a candidate is attacked or promoted, voters should know who is doing so. To oppose that notion is to oppose transparency.

I ask NPRI and others: Where is the harm?

The law is not exactly opaque, even in a state where lawmakers routinely gut transparency legislation. A political action committee, thereby susceptible to disclosure requirements, is partly defined as one that “makes or intends to make expenditures, designed to affect the outcome of any primary election, general election, special election or question on the ballot.”

The other key provision of the law is about what is known as express advocacy, which is defined in Nevada law as "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."

Therein lies the loophole for AFP – or so the judge found in a meandering and often illogical ruling that fails to account for the obvious fact that AFP was trying to defeat Atkinson. (The only good argument for the group is that it had no chance to beat him, but that’s a political argument not a legal one.)

Estes bizarrely ruled that because the pieces were negative, they were not “on behalf” of a candidate, which is a risible position and that language was tightened by the 2013 Legislature. The judge also seemed uninterested whether Atkinson had an opponent, as if that were not relevant.

But ask yourself: If the mailers talk about Atkinson sponsoring an energy bill that the AFP claims would result in a huge rate increase and then concludes with a plea to call him to tell him to “represent working families,” does anyone doubt that is intended to hurt his chances of being elected? What kind of logic can be so twisted as to say the proponents of such an obvious attack should not have to disclose who is funding it

Similarly, when Citizen Outreach attacked then-Speaker John Oceguera for "double-dipping" does anyone doubt that fringe outfit was trying to hurt him as opposed to performing some nonpartisan education of voters? Who takes such an argument seriously?

And when the Alliance for America’s Future ran ads in 2010 trying to help Brian Sandoval during his race for governor, does anyone believe it was not an attempt to defeat Rory Reid? Of course it was.

Those latter cases are still pending, and I hope the judges see the light that Estes did not. Miller, who is not appealing the AFP case because the other cases are stronger, summed up the point here quite nicely when I asked him about it:

“Disclosure helps voters understand the motivations behind the advertising, and whose interests are likely to benefited if the voter takes the course of action suggested by the ad,” he said. “This helps voters determine how much weight or credence to give to the ad. It also helps them gauge the interests that are supporting or opposing a candidate, and therefore what interests the candidate is likely to be receptive (or not) to, if elected. All of this is valuable information when heading to vote. Even if a lot of voters themselves don’t personally go check out the (Contribution and Expense Reports), there are of course reporters and open government groups who can dig through the data and present it to voters as well.”


This is hardly complicated. Yes, it’s unfortunate that this is a Democratic secretary of state going after three GOP-aligned groups. But that’s just happenstance, and Miller has filed actions against ACORN and Rory Reid, the son of the most powerful Democrat in Nevada politics.

Mandating disclosure of who is funding campaign propaganda infringes on no one’s right to free speech, but goes a long way to giving voters a chance (who knows if they will take it?) to be better informed.

That’s what this is about. The rest is noise.