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Would that Nevada had a few judges as perspicacious as ones found in Arizona and Mississippi.
While a Carson City judge was fining and penalizing a Virginia-based conservative group more than $100,000 for buying television commercials without first registering with the state and disclosing its donors and expenditures, judges in those states were declaring that their similar laws fail First Amendment muster.
Nevada law mandates that any group spending more than $100 to expressly advocate for a candidate or ballot issue must first register with the Nevada secretary of state.
Attorneys for Alliance for America’s Future — which spent $189,223.50 airing a 30-second television commercial 320 times praising Brian Sandoval’s conservatism during the gubernatorial campaign of 2010 — argued that threshold is far too low to hold up under constitutional scrutiny.
Judge James Wilson rejected that argument, but attorneys for the Institute for Justice — a civil liberties law firm that litigates for private property rights, economic liberty, free speech and school choice — won two such cases within hours of each other in Arizona and Mississippi a month ago. Those cases were part of IJ’s Citizen Speech campaign, a multi-state effort to protect the rights of groups to speak on important issues without getting tangled in state-contrived red tape and threatened with criminal prosecution.
Judge Wilson has argued that irreparable harm will befall voters if they are denied information about who is campaigning for what and with how much money, even though the nation’s Founders frequently published essays and pamphlets anonymously or under pseudonyms.
Mississippi’s threshold for having to register and report as a “political committee” was $200, twice Nevada’s. Five friends from Oxford, Miss., decided to join together and speak out in favor of a ballot initiative that would provide greater protection from eminent domain abuse.
Judge Sharion Aycock noted the courts have ruled there must be a point below which mandatory disclosure of campaign expenditures by incidental committees runs afoul of the First Amendment.
Judge Aycock wrote: “Turning to the case at hand, the Court finds that Mississippi’s requirements for groups raising or expending in excess of $200 are too burdensome. Even under the State’s now enunciated view of the regulatory scheme, as soon as informal associations in Mississippi accept or expend funds in excess of $200, they are compelled to form a political committee and file a statement of organization with the Mississippi Secretary of State. Having crossed that threshold, the committee takes on monthly reporting obligations that are not extinguished until the committee no longer receives funds or makes expenditures.”
In the Arizona case a woman sent an email to a couple dozen friends and neighbors, inviting them to a protest against a $44 million road bond on the 2011 ballot. She promptly received a letter telling her to cease and desist until she registered as a political committee and filed all the paperwork to comply with state campaign finance laws.
Judge James Teilborg wrote: “In this case, it is not clear that even a campaign finance attorney would be able to ascertain how to interpret the definition of ‘political committee.’ As such, people of common intelligence must guess at the law’s meaning and will differ as to its application. Such vagueness is not permitted by the Constitution. However, the Court need not rest its holding solely on the vagueness of the definition of political committee. Indeed, even if the Court were to accept the State’s proffered interpretation of the definition of political committee, the definition is overbroad because it sweeps in a substantial amount of constitutionally protected speech without any sufficiently important governmental interest in regulating such speech.”
He basically declared the whole law unconstitutional, not just the state’s $250 threshold.
“The burdens that laws like Mississippi’s and Arizona’s impose on grassroots groups are well documented,” writes Institute for Justice attorney Paul Avelar. “Indeed, the U.S. Supreme Court considers such laws so burdensome that it has equated them with a ‘ban on speech,’ even for well-funded corporations and unions. Nevertheless, courts across the country routinely uphold these laws, leading to the absurd result that grassroots groups are subject to regulations considered unconstitutionally burdensome for General Motors or the AFL-CIO.”
Perhaps, the Alliance for America’s Future could invite the Institute for Justice to appeal Judge Wilson’s ruling to the state Supreme Court and reinstate the First Amendment in Nevada for everyone.
(A version of this column appears this week in The Ely Times, Eureka Sentinel, Mineral County Independent-News, Lincoln County Record and the Elko Daily Free Press. Thomas Mitchell also blogs at 4TH ST8.)
Tags: Alliance for America's Future, Arizona, Institute for Justice, Judge James Teilborg, Judge James Wilson, Judge Sharion Aycock, Mississippi, Nevada, Paul Avelar, Virginia
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